For those who did not follow, this is the summary of Justice Ndung’u ruling

 

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1)The courts should not cause Jurisprudential crisis through their findings
2) The voter bears the right of franchise
3) Elections are ‘RIGHTS- centric’ not ‘FORM-centric’
4) You have the Various verifying agents
a) IEBC
b) Party
c) Candidate agents -Senators, Governors
d) Media
e) Observers – Their reports are filed with commission so they have a formal status, they found the election to be free and fair
5) It is insufficient for the court to say it had a doubt, the court must be satisfied by evidence before it. It must not be speculative
6) Regulation 68 provides the ballot paper does not provide for security features on ballot papers. (It provides it shall have name and photo of candidate, be capable to be folded, party symbol) – that does not apply for the forms
7) An election court must satisfy that evidence is real and not imagined in order to nullify an election
8) The ballots exist – People speak through the ballot. if Majority were in doubt that should have been the option
9) “The ballots are alive and available when you have to overturn a decision do not result to forensic guesses – why avoid the obvious and settle for the risky”
10) Voters are identified at the polling station, the votes at the polling station, the Count happens at the polling station, to verify the voice of the voter you must check the vote as cast – 11) Transmission of forms cannot be the basis for nullifying a Presidential election
12 ) Transmission was intended to cure the transportation of forms to Nairobi by all 290 Returning Officers – that was a key issue in the Maina Kiai case
13) IEBC argued in COA that the case by Maina Kiai would extinguish the power of IEBC to amend or alter the result
14) COA ruled, “Polling Station is the true Locus for the free expression of the voters will..”
15) COA – ruled that the role of the chairman of IEBC was only to tally results from constituencies, declare and forward declaration to incumbent President and CJ
16) Did IEBC obey the Maina Kiai decision – in my view that was demonstrated in court, I am satisfied that IEBC adhered to the guidelines set by the Maina Kiai decision despite the decision coming 35 days to the elections.
17 . What is the place of Maina Kiai decision in future elections? – I disagree with Maina Kiai decision since It endorses another level of tallying at constituency and it incapacitates the iEBC chair. IEBC Chair is the returning officer of the Presidential Election.
18 . You cannot find the National threshold at the constituency. only IEBC Chair has the capacity to verify and declare a Presidential election, not the Constituency because there are other points to verify before declaring a winner of the Presidential election – for instance 25 % requirement in counties, 50+1
19 . The Constitution must be interpreted in context and must be holistic
20 . Our electoral system is MANUAL – You pick a ballot manually, you tick manually, you insert it in the box and count manually – our system is not like India or USA where it is clearly electronic. we have a system that needs clarity via legislation.
21 . The IT experts by the petitioners fail the test of Expert testimony as provided for in the Evidence Act.
22 . Whoever alleges, MUST prove
23 . The burden of proof in Election cases – the Evidential burden is borne by petitioners at the onset, however, the respondents bear the evidential burden of proof in rebutting the allegations.
24 . The Petitioner must prove that the election was NOT conducted according to the law and that affected the results of the election.
25 . However, the Legal burden lies on the Petitioner
26 . A candidate or her agent cannot abscond duty from the polling station then ask the court to overturn the election
27 . IDP payments were approved by Parliament and were within Gvt workplace and therefore nothing to do with elections
28 . I have analyzed affidavit evidence of the petitioners and respondents
29 . Orders on accèss to Information – The majority call it orders to access – In interpreting orders the court reasons must be read in whole so as to implement. For the avoidance of doubt – This court did NOT give orders for access to SERVERS
30 . Failure to have security features on the form is not FATAL
31 . The Majority had an opportunity to check the forms as deposited in the court like I did, but they did NOT
32 . When you compare Registrar report and the certified forms brought by IEBC to court the majority finding falls, I checked and that is what is called verification
33 . The alleged irregularities and illegalities must have a nexus
34 . Which circumstances are different between Raila 2013 and Raila 2017 to persuade the Majority to depart? I do not see any
35 . Parliament must clarify article 83 of the act –
36 . The Supreme Court decision to annul a presidential election does not take over rulings in lower courts
37 . The People speak through the Ballot
38 . The alleged irregularities should have checked the certified forms as provided by IEBC
39 . It is unfortunate that the majority has decided to take a decision to disfranchise the people, by making a decision based on design of forms as opposed to the decision of the electorate
40 . Judiciary must operate within its power and must prevent abuse of power

Why Justice Smokin Wanjala is a Man on the Run

Kahawa Tungu

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Supreme Court ruling termed as a sham as one the four Judges departs country 3 hours before delivery of findings:

As Justice Jacktone Ojwang was giving his reasons for dissenting to nullify President Uhuru Kenyatta’s victory following the August 8th poll, a KQ plane touched down at the Heathrow Airport. On one of the first class seats aboard the KQ flight sat Ojwang’s colleague Smokin Wanjala who oblivious of the burden he has put his Country Kenya in, sighed with relief as he loosened his seatbelt waiting to go through immigration checks before weaning off the jetlag later. The time was 1658 hours, Kenyan time-rays of sunshine disappearing into the gloomy weather in Nairobi.

Unmoved or disinterested with the happenings, Justice Wanjala seemed happy to be away from the shame the judiciary plunged Kenya into making it the fourth country in the World to nullify a Presidential election, part of which he participated in by inking the hard white papers, crossing the Ts to reaffirm that he stood by his decision and three others.

It is interesting to note that Wanjala was part of the conspiracy to deliver a political ruling not based on law and coincidentally he missed Justice Ojwang’s lecture on the same.

Termed as a man with an indecisive character, Wanjala was approached earlier in July by his friend, US scholar Makau Mutua to orchestrate the plan to rob Kenyans of their democratic will when they realised the opposition didn’t have numbers to win in a democratic, transparent and fair election. It is part of these dealings with Mutua that have led him to hurriedly travel to London with allegations being thrown around by angry Kenyans.

Mutua approached Wanjala after his conversation with the Deputy Chief Justice Philomena Mwilu who arrogantly condensed the Attorney General Prof Githu Muigai on his request to be a friend to the court.

It is then that the scheme was hatched, to violently grab the presidency from Uhuru Kenyatta and William Ruto.

Mutua has been acting for international forces keen on regime change, those with a strategy to ascend Raila Odinga to power by hook or crook, they also have business interests and are known to be funders of caliphate states creation. They see Kenya as a hotbed in which they can comfortably perpetrate their high tech crimes which are corrupt Government deals, hard drugs, terrorism, sale of weapons among others by creating lawlessness.

Wanjala and Mohammed Ibrahim were the target since the five others had either political inclination or exhibited sobriety. Justice Ibrahim doesn’t publicly exhibit his demeanour and as such Mutua thought he was a catch.

Wanjala has been known to be wishy washy, lacks consistency-the main reason he left the Kenya Anti Corruption Commission now known as EACC because he couldn’t make decisions. It is his character that made it easy for Mutua to approach him and he agreed to play ball.

Towards September 1 when submissions by all parties were being made, Justice Ibrahim fell ill, was treated and was ready to attend session the following day but the high handed CJ Maraga couldn’t let him.

Ibrahim was even stopped from attending the final session by Maraga so as not to bring minority to three which would have looked even worse for the bench.

After September 1, Wanjala is said to have developed cold feet last minute and had to leave the country for ‘deals and holiday’ but he had already appended his signature, something the bench pretends not to be aware as the CJ Maraga casually and comfortably informed the public of the judge’s absence 3 hours after he took off at JKIA.

After delivery of the judgement in which four of the judges nullified the results, it has emerged that the four didn’t scrutinise the evidence availed and already had a pre-determined decisions.

The judiciary, Maraga included are now in the thick of things as they try to stay afloat and regain the dwindling image of among others the Supreme Court.

For now we await the return of Wanjala and more revelations of his UK dealings