The Supreme Court of Kenya (SCoK) shocked the world when it annulled the Kenyan presidential election on Sept 1st 2017. In a most stunning turn of events, the full judgement issued by the SCoK on September 20th offered no clear justification for their ruling.
Instead, the ScoK acknowledged that there was no evidence of any criminal wrong doing either by any member of the Independent Elections and Boundaries Commission (IEBC) or by President Uhuru and his agents and officers.
The SCoK offered no justification for having used the term “illegalities” in their original ruling admitting that there were no legal requirements for the forms 34 used to tally election results. Chief Justice Maraga in reading the majority judgement offered only conjecture suggesting that the lack of standardization of the forms 34 raised suspicion.
With all due respect, every single case ever brought to any court consists of suspicion and if suspicion in and of itself was enough to lead to conviction of any suspect then the world’s prisons would be full. I suspect that Equity Bank has robbed me of $10 billion; does that mean that the CJ will award me the money. That’s essentially what both the CJ as well as his Deputy Justice Mwilu were suggesting in their assertions. DCJ Mwilu for her part asserted that the IEBC raised suspicions because they were physically unable to grant access to their servers in the short time given, and that this amounted to guilt on the part of the IEBC.
Let’s really examine the SCoK’s ruling and full judgment. The petitioner, the NASA coalition, argued that the IEBC in collusion with President Uhuru Kenyatta attempted to rig President Uhuru into office. The proof of this, the petitioner alleged, existed inside the IEBC servers. The petitioner also argued that forms 34 for tallying the election results were not standardized with some forms lacking watermarks and/or serial barcodes.
The petitioner did not question the vote tallies at all, even though they had consistently claimed publicly and via the media that they had won by millions of votes.
The ScoK admitted that there was no collusion between the IEBC and the president, that there was no evidence of any criminal intent. Yet, the SCoK granted the petitioner’s prayers. This the SCoK granted not on any evidence provided. Rather, the SCoK deduced evidence via its own ruling instructing that the IEBC servers should be opened up for public scrutiny. The IEBC logs provided no evidence or even a shadow of a footprint of guilt. However, according to DCJ Mwilu, the fact that technical difficulties caused the server access to be delayed, raised enough suspicion in and of itself to overturn a whole presidential election. It should be noted that IEBC CEO Ezra Chiloba has already come out to explain that the IEBC was simply unable to access their own servers at short notice as they were relying on the French company that hosts the servers. He went on to add that the servers are indeed now open and remain so.
This is quite simply a travesty of justice. The ruling was wrong and the judgment only proved that the ruling provided no basis in law whatsoever. It is a clear indication that the majority in the SCoK had the ruling as their starting point based on what can only be their political leanings, and worked backwards to seek justification. The majority judgement was grasping at straws and clearly reaching in search of evidence. The egregiousness of this ruling and its lack of a firm legal basis, combined with its impact on the country raises serious questions about the motivation of these judges. We certainly want a fair and independent judiciary. This judiciary has certainly asserted its independence, however, an independent judiciary must also be seen to be fair. The SCoK ruling failed the fairness test and sets a dangerous precedent. It has deigned that any election can literally be nullified based on the actions of any individual at any number of remote polling stations across Kenya.
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