Why two judges ruled that President Uhuru won August 8 presidential election

**Judges Njoki Ndung’u and Jackton Ojwang**

The judges of the Supreme Court sharply differed on the decision to invalidate the August 8 presidential election.

A comparison between the majority judgement and the two dissenting ones shows a major clash in the interpretation the law between two sets of judges, with the dissenting voices poking holes into the decision taken by their colleagues to annul President Uhuru Kenyatta’s win.

Dug deeply

Judges Jackton Ojwang and Njoki Ndung’u dug deeply in tearing the majority’s judgement read by Chief Justice David Maraga, his deputy Philomena Mwilu and judges Isaac Lenaola and Smokin Wanjala.

The two judges argued that their colleagues had set the bar for invalidation of an election too low and overturned the will of the voters.

Justice Ojwang and Justice Ndung'u separately differed with their colleagues' decision to annul the election on the basis of what they saw as "assumptions."

“I cannot but conclude that, on facts conveyed through evidence, in support of the petitioners’ case, they are on weak grounds, as compared to the respondents. In establishing the merits of their case, the petitioners had both the ultimate legal burden of proof, and the shifting evidential burdens falling upon them. They did not, in my appraisal, discharge even the early evidential burden –the effect being, in the end, that they made no valid case against the respondents,” ruled Ojwang.

Ojwang faulted the finding of his colleagues that the entire electoral process was marred by massive irregularities that necessitated the invalidation of the vote.

“Such a determination is in clear departure, in the first place, from the state of the evidence. The petitioners’ case rests on just one dimension of the electoral process – electronic transmission of results. Moreover, the bulk of the assertions made as regards transmission, is just that, contentions, with only limited testimonial ingredient,” said Justice Ojwang ruled.

The dissenting judge further faulted the ruling that the irregularities were massive and likely to have altered the final outcome of the polls, terming the allegations of failures as “only limited instances of failure of results-transmission; only limited cases of irregularity in vote-addition and tabulation, not affecting the ultimate compilation and summation”.

He further argued that even if there were doubts on the final outcome of the poll, there was a complementary process that the court would have used to confirm the election of President Kenyatta.

"In cases of failure in the transmission process; all the physical voting records were available, and indeed, had been timeously availed to the Supreme Court Registry, and could have been re-counted, to confirm that the 3rd respondent (Uhuru) had been properly declared as the President-elect," he said.

Justice Ndung'u faulted her colleagues for failing to scrutinise certified copies of Forms 34A and 34B to rebut claims that they lacked key features. She said the Judges only relied on the report of the registrar, when the position would have been easily sorted if the judges used the research team seconded to the court.

"The majority, in the aftermath of the Registrar‘s report did not even attempt to peruse the enormous evidence deposited by the 1st and 2nd Respondents bearing certified copies of Forms 34A and 34B,” said Ndung'u.

In her dissenting judgement, Justice Ndung'u tabled forms alleged to have been irregularly filled to show that they were indeed correctly signed and stamped.

Speculative grounds

“As such an order for nullification based on this exercise that was merely based on controvertible and speculative grounds, and is well below the standards set for nullifying an election, especially, where other remedies, such as inspection of ballots, exist," stated the Supreme Court Judge

She faulted her colleagues' findings for not fully factoring in all evidence tabled before the court.

"Had they systematically analysed the evidence, they would not have determined the election on a tangential issue whose determination could easily have been settled through reference, by the court itself, to the evidence deposited by the 1st Respondent (IEBC),” ruled Njoki.

Njoki also faulted her colleagues for differing with the decision of the same court in its ruling in the 2013 presidential petition and its interpretation of the Elections Act.

“Having been part of the inaugural Supreme Court and having steadily and consistently settled the law on elections, the interpretation of Section 83 by the majority will unleash jurisprudential confusion never before witnessed,” Justice Ndung'u said.