The Supreme Court of Kenya (SCOK) in a most undemocratic move, on the 1st of Sept 2017, ruled in favor of the most frivolous lawsuit, overturning the sovereign will of the people of Kenya. In a four-two majority ruling, the SCOK ruled that the re-election of President Uhuru Muigai Kenyatta to a second term was marred with “illegalities and irregularities”. The ruling went on to add that the Independent Elections and Boundaries Commission (IEBC) “either failed or refused to conduct the elections in strict adherence to the law and the constitution of Kenya”.
The petition by the opposition leader’s lawyers was so frivolous it caught the whole legal profession in Kenya by surprise with even one of the petitioner’s lawyers admitting his surprise on National TV.
The petition brought to court hinged on the simple fact that the election conducted was simply not perfect. The SCOK ruled in favor of the petitioner agreeing that clerical and administrative errors, as well as easily explainable errors of network transmission were sufficient to overturn a convincing win by President Uhuru Kenyatta. That is quite simply a travesty of justice. There is no basis in law whereby the poll tally that is otherwise verifiably and transparently a credible reflection of the will of the voter should ever be overturned!
The ruling was celebrated particularly because it’s a first in Africa and only the fourth ever anywhere in the world. Members of civil society, political analysts, journalists and media commentators in Kenya and beyond have celebrated the landmark ruling arguing that Kenyan democracy had come of age with this most prominent assertion of judicial independence. The SCOK did indeed boldly assert its independence, but this should not be cause for celebration. An independent judiciary should also be a fair judiciary, and this ruling which failed to obtain a unanimous vote was anything but that.
President Uhuru Kenyatta whose convincing 54% win was reversed reacted with anger, but vowed to accept the ruling. Perhaps, this is the only ray of hope to be found in this darkest of unfortunate events. The President’s supporters reacted in a predictably, similarly peaceful, if somewhat subdued manner. The SCOK gave a brief two minute ruling in contravention of Chief Justice Maraga’s promise that on this occasion they would not rule in a fashion similar to the brief 2013 ruling that affirmed President Uhuru Kenyatta’s win. To date, a full 2 weeks later, the SCOK still hasn’t given a full ruling to explain their rationale for overturning a presidential election win where the president’s superior tally of over 8 million votes against his rival’s 6 million was never even challenged.
This is the ultimate judicial coup d’état, administered by a quietly spoken, practicing Seventh Day Adventist Supreme Court Justice in Chief Justice Maraga.
The court case brought by the opposition party argued that there were clerical and administrative errors, as well as errors of network transmission which made it difficult to deliver images to the national tallying center of certain documents. It was always quite clearly very easy to explain the clerical and administrative errors and IEBC CEO Ezra Chiloba has now done so in a most credible and transparent manner. Issues of network transmission in a country like Kenya where certain remote areas barely receive cell phone signals are hardly surprising.
Additionally, the simple reality is that in 41,000 polling stations, manned by hundreds of thousands of poll workers, there will be simple human error, it’s the simple law of probability. It’s inevitable and it’s universally so. There does not exist a perfect election anywhere in the world.
The opposition party of Raila Odinga created a case for their election petition long before the elections were held. They put in place the laws, the constitution as well as the IEBC regulations that guided the conduct of this election. There were impossibly high standards put in place including strict timelines as well as strict methods of transmission and declaration of results. Additionally administrative requirements for the reporting of poll tallies all the way from individual polling stations as well as constituency and county tallying centers create impossibly strict demands on manual processes. It is quite simply predictable that any time there are manual processes, there will be simple, innocent human error. Further, Raila’s opposition party pushed for and succeeded in ousting the previous IEBC commission and CEO, unfairly, and with no firm basis in either law or otherwise. This led to a situation where we now have an IEBC commission which was only just convened a mere seven months prior to the election. Raila Odinga now wants this IEBC commission also disbanded.
The challenge now is that the IEBC is required to conduct a repeat election under the exact same circumstances of manual processes, spotty network access and strict timelines. Given those challenges, the repeat poll of October 17th 2017 will be conducted in the same manner, by the same IEBC. It is easily foreseeable that after the October 17th poll, a constitutional crisis occurs whereby the IEBC commissioner is bullied into not announcing the winner of the presidential poll by NASA as a result of the inability to transmit and 100% tally the presidential vote. This is an untenable situation.
The petition by Nyeri City Member of Parliament, the honorable Ngunjiri Wambugu seeking to prove that CJ Maraga has been compromised is completely in order. MP Wambugu is following a constitutionally sanctioned process. The actions of the CJ are highly questionable and must be scrutinized. No one in any country should be above the law, and that not only includes the President, but the judiciary as well.