Process vs Event

Patrick Musibi

When the Supreme Court of Kenya nullified the results of the Presidential Election, I promised to give my opinion on the same once I had read the detailed judgment. So, here we go.

In my opinion, the nullification of the Presidential Election results on September 1st was a travesty of justice by the apex court in Kenya as it stifled the voice and trashed the will of the Kenyan voter who had, on August 8th, spoken clearly and shown preference for His Excellency President Uhuru Muigai Kenyatta by giving him 8,203,290 votes against his closest opponent Hon. Raila Amollo Odinga’s 6,762,224. At no point in the whole process were these results disputed or interrogated. In Justice Jacton Ojwang’s dissenting opinion, in Paragraph 153, he clearly states:

“From the evidence, the petitioners do not seek an ascertainment of the true number of votes cast for the 1st petitioner and for the 3rd respondent – even though these, as required by law, had been delivered to the Supreme Court, and are kept in the custody of the Registry”.

Let me, at the outset, point out that I am not a lawyer. My undergraduate degree is in development studies while my graduate degree is in international studies. However, at both undergraduate and graduate levels, I have extensively interrogated International Humanitarian Law (IHL) and International Human Rights Law (IHRL). In practice, IHL, also known as the “Law of War” or “Law of Armed Conflict”, guided me when I was in active service as an officer in the Kenya Air Force and continues to guide me in my humanitarian work in conflict and post-conflict countries. On the other hand, IHRL is the bedrock of my humanitarian work on behalf of children and youth affected by armed conflict. I therefore have a fairly good understanding of both IHL and IHRL.

In defining the petition before the court, the Supreme Court of Kenya (SCOK), in Paragraph 14, clearly stated, and rightly so, that the petition was “anchored on the grounds that the conduct of the 2017 presidential election violated the principles of a free and fair election as well as the electoral process set out in the Constitution, electoral laws and regulations and that the respondents committed errors in the voting, counting and tabulation of results; committed irregularities and improprieties that significantly affected the election result”.

In the above definition, we can disaggregate three issues: Free and fair election; the electoral process and election result. For me, free and fair election and election result are the fundamental issues and are anchored in IHRL as follows:

The Universal Declaration on Human Rights (1948), Article 21 (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

International Covenant on Civil and Political Rights (1966), Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

The African Charter on Human and Peoples’ Rights (1981), Article 13 (1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

Guided by two international instruments and one regional instrument, the Constitution of Kenya (2010) domesticated the foregoing articles in Article 38. (2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors…

However, in delineating the issues for determination, the SCOK listed the following:

(i) Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.
(ii) Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
(iii) If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?
(iv) What consequential orders, declarations and reliefs should this Court grant, if any?

Please note that as pointed out in paragraph three above, the SCOK had disaggregated the grounds of the petition to include election results, in the issues for determination, the election results are NOT an issue! Right here, the WILL of the Kenyan voter was made inconsequential.

To prepare to justify trashing of the will of the Kenyan voter, SCOK resorted to Section 83 of the Election’s Act. In fact, in Paragraph 171 of the detailed judgment, the SCOK states that Section 83 of the Elections Act is the fulcrum of the petition. Section 83 on Non-compliance with the law states that: No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of that election.

In Paragraph 203, in interpreting Section 83 of the Elections Act, the SCOK states that

“there are clearly two limbs to all the above quoted provisions: compliance with the law on elections, and irregularities that may affect the result of the election. The issue in the interpretation of the provisions is whether or not the two limbs are conjunctive or disjunctive. Guided by these principles, and given the use of the word “or” in Section 83 of the Elections Act as well as some of our previous decisions, we cannot see how we can conjunctively apply the two limbs of that section and demand that to succeed, a petitioner must not only prove that the conduct of the election violated the principles in our Constitution as well as other written law on elections but that he must also prove that the irregularities or illegalities complained of affected the result of the election as counsel for the respondents assert. In our view, such an approach would be tantamount to a misreading of the provision”.

The SCOK therefore decided to apply “disjunctive limb” which meant that the petitioner did not have to prove that the non-compliance with the law affected the results of the election.

Earlier in Paragraph 180 of the detailed judgment, we read that “Senior Counsel Mr. Ahmednassir had contended that a party seeking the nullification of the presidential election, bears the burden of proving that not only was there non-compliance with the election law but also that the non-compliance affected the results of the election (conjuctive limb).

If the will of the Kenyan voter is to be protected, Section 83 of the Elections Act MUST be amended to replace the word “or” with “and”, making it mandatory that the petitioner proves that non-compliance affected the results of the election.

I agree with the learned counsel for LSK who, according to the SCOK, “emphasized the centrality of a voter in a democratic form of government. I also agree with the Attorney General in his submission to the SCOK which cited the South African court ruling that emphasized the need to “approach any case concerning the right to vote mindful of the symbolic value of the right to vote as well as the deep, democratic value that lies in a citizenry conscious of its civil responsibilities and willing to take the trouble of exercising the right”. I agree with Lady Justice Njoki Ndung’u who in her dissenting opinion stated that “at the heart of democracy are the people, whose will constitute the strand of governance that we have chosen as a country”. Lastly, I agree with Justice Jacton Ojwang when he points out that the Constitution requires courts, in applying a provision of the Bill of Rights, adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

On free and fair election, we seem to all agree that the elections for the other five elective positions were free and fair as borne out by the fact that the winners have been or are in the process of being sworn in. If the expression of free will by Kenyan voters was done for all the six elective positions, how can the results be good for five elective positions and not for the sixth? I am yet to wrap my head around this one.

In defining what constituted a free and fair election, Lady Justice Njoki Ndungú invited every Kenyan voter to ask themselves the following questions:

(1) Was there a problem with registration of voters?
(2) Were voters properly identified at the polling station?
(3) Were voters allowed to cast their ballots peacefully and within good time?
(4) Were the votes cast-counted, declared and verified at the polling station to the satisfaction of all parties?

For me, answers to these questions indeed provide very good criteria on which to gauge a free and fair election. As far as I am concerned, no credible evidence was adduced in court to the contrary.

We all seem to agree that all was well until the transmission of the tabulated Presidential election results (Form 34A) to the Constituency Tallying Centre (for the compilation of Form 34B) and National Tallying Centre (for the compilation of Form 34C). The SCOK dwelt extensively on the challenges of transmission of results. In fact, Justice Jacton Ojwang (Paragraph 153) notes that “The petitioners have focussed the burden of their case on apprehensions as to the perfect security of the transmission system”. Please note that transmission is a part of, not the whole electoral process. A lot of time was spent on Forms 34A, B, and C. Indeed there were valid issues that needed to be addressed:

Why were some forms signed and others not signed? Why did some have security marks and some did not have, yet they were printed by the same printer? Unfortunately, the SCOK did not dig deeper into these anomalies to determine if someone could have been intentionally manipulating these forms in preparation for the case before the court.

Why did IEBC declare results when they did not have all the Forms 34A (a whooping 11,000 had not been received)? This raises two other questions – were some returning officers intentionally delaying the submission?; was there another means of getting the figures contained in the missing Forms 34A that IEBC used to verify the Forms 34B before completing the Form 34C and then declaring the results?

Additionally, there were issues raised that needed to be conclusively ascertained or debunked. There was the allegation of a formula that was introduced into the server: y=1.2045+183546 to give President Kenyatta more votes. Now, going with my high school mathematics, such a formula would have affected ALL results, not just some. The fact that Hon. Raila Odinga garnered more votes than President Uhuru Kenyatta in many polling stations negates such a claim. The SCOK should have pushed the counsel who brought this issue up to explain this discrepancy or prove how it could be selectively applied to affect just some but not all results. Unfortunately this was not done and we still have people using the issue of this formula to buttress their claims that the results were rigged. In this, the SCOK did a disservice to the Kenyan people.

Back to the Forms 34A, B and C. Form 34A contains the Presidential election results from a polling station. It is the tabulation of the actual votes cast by the Kenyan voter for each candidate. These votes are the primary source documents for compilation of the Forms 34A. With the discrepancies noted in these forms as pointed out earlier, it would have been more logical for SCOK to order the scrutiny of ALL the votes cast to determine their validity and then declare the candidate with the most valid votes duly elected or call for a run-off if the threshold for an outright win are not attained by the leading candidate.

Annulling the Presidential results purely on process and not scrutinizing what the actual Kenyan voter said stifles his/her voice and trashes his/her will and is a gross violation of his/her rights as provided for in the Universal Declaration on Human Rights (1948), International Covenant on Civil and Political Rights (1966), the African Charter on Human and Peoples’ Rights (1981) and the Constitution of Kenya (2010).

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