Justice David Majanja delivers his ruling on the petition challenging
the election victory of Anyang' Nyong'o as Kisumu governor, on January
3, 2018. He said votes recorded in Form 37A are final. PHOTO | ONDARI
OGEGA | NATION MEDIA GROUP
When he launched his attempt to quash Prof Anyang’ Nyong’o
election as governor of Kisumu, former county boss Jack Ranguma had what
he thought was a silver bullet — a man who had hacked into the
electoral commission’s servers and seen “the truth”.
Testifying
as an information technology expert, Mr Levi Oduor Otieno told the High
Court in Kisumu in November last year that when he accessed the servers
of the Independent Electoral and Boundaries Commission (IEBC), he found
the result forms for the gubernatorial election (Forms 37A) had been
deleted and others uploaded.
While his evidence might
have caused a stir and divided the court on that day, it was not of much
help in aiding Mr Ranguma’s case.
IEBC SERVERS
In
his ruling, Justice David Majanja sidestepped the tricky question of
what to do with evidence from a man who claimed he did something illegal
but in the public good by accessing the IEBC servers. Instead, he chose
to rely on the law.
“A reading of Section 39(1C) of
the Elections Act shows that electronic transmission and publication of
polling result in a public portal is only a statutory requirement for
the presidential election,” Justice Majanja said in his ruling.
The upshot of this was that with the elections being conducted
manually, except for the identification of voters and the transmission
of the results, and in elections below the presidential race, it is all
about the forms.
“Even accepting the errors, omissions
and inconsistencies highlighted,” he said, “the legal position remains
that the votes as recorded in Form 37A are final”.
MALPRACTICE EVIDENCE
He
said unless the forms were disputed, any errors in the electronic
transmission of the results or their publication in the IEBC’s public
portal could not invalidate the Forms 37A.
Mr
Ranguma’s case was among the many that have been dismissed, with
millions of shillings in costs then lumped on the petitioner.
It
was also one among the many in which the petitioners failed to get any
evidence of malpractice or are tripped up by the law, according to an
analysis of the judgments.
Many of the cases made
references to the Supreme Court case of August that led to the annulment
of the August 8 presidential election.
The relied on
that case on the question of the burden of proof in election petitions
but judges and magistrates have placed the physical forms as the primary
records of elections.
This appears to be a deviation
from the position taken by the Supreme Court that the process in an
election is more important than the results.
RESULTS TRANSMISSION
There are as many reasons why so many election petitions have been thrown out as there have been cases.
There are as many reasons why so many election petitions have been thrown out as there have been cases.
However,
going by the explanations given in court, many of the lost cases would
have been avoided if only the petitioners had acted more meticulously.
A
common observation was that the petitioners failed to provide
sufficient evidence to back up their claims and mainly relied on
hearsay.
Like Mr Ranguma, some of the petitioners used
the failure to transmit results electronically as evidence that the
election was not conducted properly.
Like in that
case, the judges pointed out that it was only in the presidential
election that electronic transmission was required.
Justice
Majanja would declare in the Ranguma case: “It is the petitioner’s duty
to plead his case with specificity and this defect is not cured by
having a detailed affidavit making broad allegations.”
PROCEDURE
In its latest report, the Judiciary Committee on Elections said there were cases which were dismissed because the petitioners failed to deposit security for costs.
In its latest report, the Judiciary Committee on Elections said there were cases which were dismissed because the petitioners failed to deposit security for costs.
Others failed to serve the
respondents with the court papers and some filed their petitions when it
was already too late and were time barred.
Other petitions, according to JCE, were not drafted according to the rules.
Petitioners or their lawyers failed to attend court, while others requested and were allowed to withdraw their petitions.
Other
judgments by the courts pointed to the fact some petitions were simply
defective and the only option available was to dismiss them.
In
the gubernatorial petition for Kajiado, Mr Taraiya ole Kores had used
the affidavit of Dr Noah Akala in the Raila Odinga case, which had
alleged numerous irregularities in Kajiado County.
FORM 37A
However,
he and his co-petitioner later admitted they could not rely on it
because they were not its authors and had not put in the name of the
author and the title in their submission.
When they
claimed there were more votes cast than there were registered voters in
five polling stations, they could not back up their case with the Forms
37A.
Mr Kores and his colleague had taken over the
petition from Mr David Nkedianye, former Kajiado governor, and used the
Supreme Court’s finding on scrutiny to back their case.
In
his ruling, Justice John Onyiego said: “During the hearing of this
petition, one unfortunate thing that came out clearly was the
petitioners purely attempted to prove their case dependent on the
Supreme Court’s petition finding on scrutiny exercise which was totally
irrelevant in this petition.
"They came to court
totally unprepared and unaware of what the petition entailed and their
role thereof. They simply took over a petition which had no supporting
documents.”
WITNESSES
In Machakos, where Wavinya Ndeti recently lost in her attempt to unseat Dr Alfred Mutua, it was apparent in the ruling by Justice Aggrey Muchelule that Ms Ndeti could not secure witnesses or evidence to back her allegations.
In Machakos, where Wavinya Ndeti recently lost in her attempt to unseat Dr Alfred Mutua, it was apparent in the ruling by Justice Aggrey Muchelule that Ms Ndeti could not secure witnesses or evidence to back her allegations.
She
had alleged that a clerk had been caught on camera giving more than one
ballot paper to voters but the video was not produced in court.
No
voter was called to testify and the agent who was at the polling
station at Kenyatta Stadium was not called to testify either.
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