Supreme Court says IEBC failures led to poll nullification


From left: Supreme Court judges Njoki Ndung’u, Philomena Mwilu (deputy chief justice), David Maraga (chief justice), Jackton Ojwang and Isaac Lenaola in Nairobi on September 20. PHOTO | JEFF ANGOTE

The Independent Electoral and Boundaries Commission’s (IEBC) failure to meet constitutional and legal  requirements led to nullification of the August 8 presidential election, the Supreme Court said on Wednesday. 

The top court’s four judges, whose decision led to nullification of the poll, said in a detailed judgment that the discrepancies were so widespread as to have affected the final outcome.

Chief Justice David Maraga said the anomalies were of substantial nature and any court would have no option but to overturn the results.

Justice Maraga said the opposition National Super Alliance (Nasa) had discharged the legal burden by proving that the IEBC declared President Uhuru Kenyatta the winner of the presidential election before it received all the 40,883 Form 34As.  

“The court holds that (Mr Wafula) Chebukati – the IEBC chairman -- declared the winner using forms (some with) dubious authenticity,” he said. 

The judges further found that the IEBC had disobeyed a court order requiring it to open up its servers and logins for scrutiny, adding that the directive afforded the polls agency a chance to disapprove the petitioners’ claim that the systems were hacked and data, therein, infiltrated or compromised.

Failure to comply with orders, which the judges termed contemptuous, had left the court with no option but to agree with the petitioners that the systems were interfered with or that the commission bungled the elections and was not ready to admit the mistake. 

The judges held Mr Chebukati responsible for failure to explain why the results were not transmitted in the manner prescribed by the Constitution and electoral laws. 

In the court’s view, the process of getting a voter to cast his vote and have that vote count on equal basis with the other voters, is as important as the election result itself.

READ: Why IEBC hack claims likely to remain in limbo

Deputy Chief Justice Philomena Mwilu found that although Kenyans turned out in large numbers to vote on election day, things went opaque thereafter and it didn’t matter in the end whether President Uhuru Kenyatta got the largest number of votes.

She said the election was neither transparent nor verifiable and on that ground alone, the judges had no choice but to nullify it.

The majority judges rejected the IEBCs explanation that its failure to transmit results electronically was due to network failure.

IEBC had officials who ought to have known the areas not covered by network, Justice Mwilu said, adding that the court had taken “judicial notice that the IEBC had assured Kenyans a day to the elections that the systems would not fail.”

The failure to transmit the results as required by law was therefore in clear violation of Section 139(1)(c)  of the Elections Act. 

READ: Use of technology returns to haunt 2017 elections

The Judges, however, rejected the petitioner’s plea that they revisit the issue of rejected votes and upheld the 2013 decision which found that once a vote has been rejected, it cannot count in considering whether a candidate has garnered 50 plus one vote.

The Supreme Court nullified the re-election of President Uhuru Kenyatta, citing irregularities and illegalities in the election. Justices Maraga, Mwilu, Smokin Wanjala and Isaac Lenaola made the majority decision that nullified the presidential election on September 1 and ordered the IEBC to conduct a fresh poll within 60 days as provided for in the Constitution.  

Two judges - Justices JB Ojwang and Njoki Ndungu, dissented saying the petitioner had not proved its case and found no merit in it.

The IEBC has already set October 17 as the date of the repeat poll but Nasa and Raila Odinga, its presidential candidate, insist they will not go to the poll unless some changes are made at the IEBC.