Kenya opposition Nasa leaders leave the Supreme Court after the
presidential poll petition ruling on September 1, 2017. PHOTO | JEFF
ANGOTE | NATION MEDIA GROUP
The historic ruling by the Supreme Court of Kenya, which
annulled the declaration of President Uhuru Kenyatta as the winner of
the 2017 presidential election and ordered a fresh election, signifies
the emergence of the Supreme Court as the guardian of democracy.
The
court’s decision — by majority, not unanimous — means that Kenyans will
now go back to the polls in 60 days to elect a president after the
judges found that the Independent Electoral and Boundaries Commission
failed and/or neglected to conduct the elections in accordance with the
Constitution of Kenya and the Elections Act.
The court
also found that the presidential elections had been so ridden with
irregularities and illegalities as to the requirement for transmission
of the electoral results from the polling stations.
As
a result of these findings, the court declared that the elections and
consequent declaration of Mr Kenyatta as having been re-elected invalid, null and void.
Two
judges of the Supreme Court were in dissent. Justice Prof Jackton
Ojwang’ and Justice Njoki Ndung’u disagreed that the election should
have been invalidated.
The petition was filed on August
18 by opposition leaders Raila Odinga and Kalonzo Musyoka, who had run
against President Kenyatta. They named the IEBC and its chairperson Mr
Wafula Chebukati as first and second respondent, respectively, and
President Kenyatta as the third respondent.
At the heart of the petition were claims that the IEBC and
and/or its officials and agents had engaged in, or deliberately
countenanced, illegalities and irregularities, which failed to meet the
requirements of the Constitution and the electoral laws of Kenya. They,
therefore, sought orders of the court to have the elections annulled and
a new election to be conducted.
More specifically, Mr Odinga and Mr Kalonzo complained that the IEBC had failed to relay results
as required by law. They claimed that the IEBC started transmitting
supposed results of the elections after polling closed, contrary to the
law.
Results transmission
An
earlier ruling in the Court of Appeal had declared that the results of
presidential elections should be handled in a specific way. It required
that upon closure of the polls, the votes should be counted and declared
publicly and the results filled into the legally required forms at the
polling station (Form 34A).
The results thus declared,
would be the final results and would not be amenable to change at any
other level whatsoever, not even by the chairperson of the IEBC who in
law is designated as the presiding officer for presidential elections.
The presiding officer at the polling station was required to post a copy
of the Form 34A at a publicly accessible point within the station.
Simultaneously
with the posting of the Form 34A, the presiding officer was required to
capture a scanned image of it and transmit the image to the IEBC
National Tallying Centre in Nairobi as well as to the Constituency
Returning Officer for the constituency in which the polling station is
situated.
The constituency returning officer would,
upon receipt of all the Forms 34A from all polling stations in the
Constituency, collate the forms and compile them into an aggregate that
would be laid out in a Constituency Tally Form known as Form 34B. An
image of Form 34B was also required to be transmitted to the National
Tallying Centre and followed by a delivery of the original to the
tallying centre.
At the national centre, all the Forms
34B would be collated and the results relayed into a national aggregate
into a Form 34C, which would then be used by the IEBC chair to declare
the final result.
During the 2017 elections, Kenya had
40,883 polling stations (which translates to 40,883 Forms 34A), 290
elective constituencies. However, there were to be 292 Forms 34B.
The
two extra Form 34Bs arose from the diaspora and prisoners’ votes, which
were considered as additional constituencies for the purposes of the
presidential elections. Prisoners and Kenyans in Uganda, Tanzania,
Rwanda, Burundi and South Africa are eligible to vote for president. The
292 Forms 34B would then be reduced into a single Form 34C.
The
essence of this decision was, therefore, that the results declared at
the 40,883 polling stations would be final and that they would have to
be reflected in the Forms 34B and finally into Form 34C for declaration
of the result and without any authority for any changes to any of the
forms declared at the polling stations.
Scanned images
This
rigorous process sought to address the complaints in previous elections
to the effect that presidential results were frequently changed at the
national offices by IEBC officials under the premise that they were
making adjustments to mistakes. The Court of Appeal, it may be said,
locked this process with golden handcuffs from the polling stations.
Flowing
from this was also the constitutional requirement that Kenya’s
electoral system would be simple, verifiable, accurate, secure,
transparent and accountable.
These constitutionally
sanctioned requirements dictated that the results from the polling
station be final (that is, they could not be changed) and that the
results from the polling station had to be transmitted simultaneously
with the images of the forms to eliminate opportunity for tampering.
This
Court of Appeal decision was at the heart of the complaint by the
petitioners. They claimed that the IEBC failed to send the images of the
forms from the polling stations simultaneously with the results sent to
the National Tallying Centre. That not only defied the Constitution,
but was a systematically aimed at changing the forms.
In
particular, the petitioners claimed that as of the time of declaration
of the results on August 11, the IEBC had not received up to 10,000 of
the Forms 34A. This meant, in the contention of the petitioners that the
results were declared without verification as required by law and
confirmed in the Maina Kiai judgement at the Court of Appeal.
Hacked system?
Another
ground of the petition was that some of the forms displayed by the IEBC
in its online results portal were forgeries. Examples given here were
the fact that some appeared to have security features such as watermarks
and serial numbers while others did not. This, they contended failed to
meet the requirement for transparency.
In further
attacking the reliability of the forms and information used to declare
the results, the petitioners contended that there appeared to have been a
statistically identical gap of 11 per cent between the Mr Odinga and
President Kenyatta right from the initial broadcast of results from the
polling stations until the declaration of the re-election of Mr Kenyatta
made on August 11.
The petitioners adduced evidence by
affidavit of a statistician who contended that this was an extremely
unlikely scenario within the range of statistical possibilities.
Clothed
in this was the allegation by the Petitioners that the IEBC’s results
transmission system had been hacked and invaded by an algorithm to
maintain a result irrespective of the results.
Use of State resources
A
third contention that was canvassed was that Mr Kenyatta, as incumbent
president, had allowed and or encouraged state officials such as
Principal Secretaries to campaign for his re-election contrary to law.
They
also claimed that the Executive had taken advantage of its incumbency
to campaign using state funds under the pretext of informing the public
about projects that the government had undertaken during the president’s
first term.
The Constitution of Kenya requires that a
petition challenging a declaration of an election for the Office of
President should be filed within seven days of the date on which the
declaration of the results is made. The Supreme Court is then required
to hear and determine the petition within 15 days. This means that the
court needed to hear the petition and hand down a judgement by September
1, 2017.
The petition was heard over two days,
starting with a pre-trial conference on Saturday August 26. At the
beginning of the case, the petitioners applied to the court to order the
IEBC to deliver to the court all the Forms 34A and 34B for purposes of
verification.
They also sought an order for access to
the IEBC’s elections results transmission system. Understandably, the
IEBC and its lawyers opposed this second application, contending that
such access would be extremely risky and would reveal sensitive,
classified information the petitioners were not entitled to receive.
This
application would appear to have been the centre-piece of the petition
and seems to be one of the golden nuggets of this dispute. On Monday
(August 28, 2017), the Supreme Court granted the application and ordered
the delivery of the forms to its custody for scrutiny.
More
importantly, the court granted orders for “read only access” to the
transmission system. In so doing, the court struck a huge blow in favour
of the citizens’ right to information under the Constitution.
The
decision on the application for access to information held by the IEBC
may have been important for this case, but it is even more important
beyond this case as a precedent for the upholding a citizen’s right to
information held by a public body.
By this decision, it
will no longer be an excuse for any public body to keep information
secret and deprive citizens access, claiming that the information is
classified. Such claims must be tested going forward.
Succinct message
Even
when the IEBC appeared to have been vacillating and failing to provide
the information on time, the court reiterated the order for obedience in
firm tones that communicated the succinct message that the information
may be within the custody of an appointed officer, but it ultimately
belonged to the public.
The hearings over two days
involved a right schedule between the petitioners to whom the court
allocated five hours to argue their case. The IEBC and its chair got
three hours and President Kenyatta’s legal team also got three hours.
The Court also permitted the Attorney-General and the Law Society as
friends of the court (amicus curiae) and accorded them 20 minutes each.
The court also permitted the advocates of two other presidential
contestants to make representations before it.
Departure from 2013
Even
though this Petition of 2017 was the second one that the Supreme Court
heard challenging the election of the President, there were some clear
departures from the case of 2013. The first was that the court appeared
more strident in managing time and the range of advocates’ submissions.
Secondly,
the court was clearly less inclined to hear or sustain technical
challenges by the parties. For example, the court allowed a number of
documents to be admitted in the record by both parties even though they
may have been filed out of the time specified in the Rules of the court.
In so doing, the court indicated that the procedure must not be allowed
to prevail over substantive justice.
The IEBC’s
advocates were firm that the issues raised by the petitioners were
administrative challenges and mere errors and did not ultimately affect
the elections and efficacy of the results. They argued that the evidence
adduced by the petitioners would not show that they affected the
results in a way which would have turned the result around.
Lessons learnt
The
petitioners contended that the constitutional requirements as affirmed
by the Maina Kiai Court of Appeal decision was that the requirements of
verifiability and transparency are not in vain but are imperative
requirements for a free and fair election. There inclusion in the
Constitution was not for the mere reason that some draftsman had too
much ink and paper.
On September 1, 2017, the
petitioners’ arguments appear to have prevailed: The court found that
the irregularities and illegalities so tainted the 2017 elections that
the results flowing therefrom were invalid and a fresh election needed
to be held.
Even though the Supreme Court will give its
full judgement and reasons for its decision within 21 days, the essence
of this decision is not merely the historical one that this is the
first petition against a presidential election to succeed. Neither is
the fact that this is one of the rare instances, not only in Kenya, but
the whole world where a petition has succeeded against an incumbent
president.
The real lesson from this is that the
Supreme Court has emerged as the guardian of democracy by asserting its
independence against the Executive and declaring boldly that it is also
an arm of government and of no less stature than the Executive and the
Legislature.
Equally important is that the court sent
word to the country that it is not an institution to be taken for
granted but can be counted upon to uphold the rights of the people
irrespective of their position within the spectrum of power.
No comments:
Post a Comment