Detailed Supreme Court Judgement on Uhuru's petitions

 REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram:  W.M. Mutunga, Chief Justice and President of the Supreme Court;          P.K. Tunoi; M.K. Ibrahim; J.B. Ojwang; S.C. Wanjala; N.S. Ndungu, SCJJ.)

PETITION NO. 5 OF 2013

-BETWEEN-

RAILA ODINGA ….……………………….…………………..………..PETITIONER 

         -AND-

1.  THE INDEPENDENT ELECTORAL    AND BOUNDARIES COMMISSION

2. AHMED ISSACK HASSAN                  ….……...….RESPONDENTS                    

3.  UHURU KENYATTA

4.  WILLIAM SAMOEI RUTO

AS CONSOLIDATED WITH PETITION NO. 3 OF 2013

-BETWEEN-

1. MOSES KIARIE KURIA

2.DENIS NJUE ITUMBI                                        ……………....…..PETITIONERS      

3. FLORENCE JEMATIAH SERGON

           -AND-

1. AHMED ISSACK HASSAN           

                                                                                          …….…….…….RESPONDENTS

2.  THE INDEPENDENT ELECTORAL

          AND BOUNDARIES COMMISSION                               

AND AS CONSOLIDATED WITH PETITION NO. 4 OF 2013

-BETWEEN-

1.  GLADWELL WATHONI OTIENO 

2. ZAHID RAJAN                                                ..……………………..PETITIONERS

   -AND-

1. AHMED ISSACK HASSAN

2.  THE INDEPENDENT ELECTORAL

      AND BOUNDARIES COMMISSION         …….……….….RESPONDENTS 

3. UHURU KENYATTA                              

4. WILLIAM SAMOEI RUTO

JUDGMENT

A. THE PRESIDENTIAL ELECTION OF 4TH MARCH, 2013:

INTRODUCTION

[1]    On the 4th of March, 2013, Kenya held its first General Election since the promulgation of the new Constitution on 27th August 2010. The Constitution was a culmination of the efforts of the Kenyan people to bring about a more progressive governance set-up.  Kenyans affirmed the new Constitution as the supreme law of the Republic, which binds all persons and all State organs. 

[2] All powers to be exercised in public functions, therefore, must flow from the Constitution. Indeed, judicial authority, under Article 159 (1) of the Constitution, is derived from the people and vests in, and shall be exercised by the courts and tribunals established under this Constitution. Additionally, national values and principles of governance, as set out in Article 10 of the Constitution, underpin the conduct of governance in every respect. 

[3] The Independent Electoral and Boundaries Commission (IEBC) was created by Article 88 of the Constitution, for the management of the country’s electoral processes. It is conferred with the responsibility for conducting free, fair and transparent elections. 

[4]  The elections of 4th March, 2013 were the first in Kenya to attempt to use electronic facilitation. The IEBC, at various stages of the election, deployed the following technologies: (i) Biometric Voter Registration (BVR) during voter registration; (ii) Electronic Voter Identification (EVID) on polling day; and (iii) Results Transmission System (RTS) during tallying. 

[5]  On 19th November, 2012, the IEBC began a voter registration exercise, which culminated in approximately 14 million voters being registered. On 4th March, 2013 voters went to the polls in significant numbers. A record 86% of registered voters were reported to have participated in the General Elections. After the polls officially closed on that day, the IEBC began the process of vote tallying, and the results were then broadcast to the public.

B. DECLARATION OF RESULTS, AND THE ENSUING PETITIONS

[6]  On 9th March, 2013, five days after the General Elections were held, the Chairman of the IEBC, Mr. Issack Hassan (second Respondent), announced that Mr. Uhuru Kenyatta had received 6,173,433 votes out of a total of 12,338,667 (50.07% of all the votes cast), while Mr. Raila Odinga (the petitioner) had received 5,340,546 votes (43.31% of the votes cast).  Pursuant to Article 138(4) of the Constitution, Mr. Hassan declared Mr. Uhuru Kenyatta, the President-elect.

[7]   Subsequent to the announcement, three petitions challenging the results of the Presidential elections were filed at the Supreme Court.

(i) Petition No. 3 of 2013

[8]  On 14th March 2013, Petitioners Moses Kiarie Kuria, Denis Njue Itumbi and Flowrence Jematiah Sergon filed a petition against the IEBC as the 1st

respondent, and Mr. Isaack Hassan. The basis of the petition was that the respondents’ decision to include rejected votes in the final tally had a prejudicial effect on the percentage votes won by Mr. Kenyatta. The petitioners asserted that the second respondent’s actions were in contravention of Articles 36(b) and 138(c) of the Constitution, and Rule 77(1) of the Elections (General) Regulations, 2012.

(ii) Petition No. 4 of 2013

[9]  The second Petition was filed by Gladwell Wathoni Otieno and Zahid Rajan on 16th March, 2013, against the IEBC as the 1st respondent,  Mr. Issack Hassan as the 2nd respondent, Mr. Uhuru Kenyatta as the 3rd respondent and Mr. William Ruto as the 4th respondent. The Petitioners aver that the election was not conducted substantially in accordance with the Constitution, or the Elections Act and the governing Regulations.  

[10]  In particular, the Petitioners aver that the IEBC failed to establish and maintain an accurate Voter Register that was publicly available, verifiable and credible as required by Articles 38(3), 81(d), 83(2), 86 and 88(4) of the Constitution, sections 3, 4, 5, 6, 7 and 8 of the Elections Act, 2011 and the Elections (Registration of Voters) Regulations, 2012. 

[11]  The Petitioners, in addition, claim that the true number of registered voters is unknown and, therefore, the IEBC did not have an accurate voters’ register.  They assert that the 1st and 2nd respondents repeatedly changed the official number of registered voters. The Petitioners further assert that the absence of a credible Principal Voter Register vitiates the validity of the Presidential elections.

[12] The Petitioners further assert that the electoral management system adopted by the IEBC was complex and had many shortfalls, contrary to the constitutional requirement that it be a simple, accurate, verifiable, secure, accountable and transparent system. In particular, the Petitioners aver that the IEBC failed to meet the mandatory legal requirement to electronically transmit election results. The Petitioners aver that the failure of the electronic system put in place by the IEBC and their failure to electronically transmit election results affected the validity of the Presidential elections.  

[13] The Petitioners aver that the 1st and 2nd respondents did not discharge their obligation under the Constitution, because the tallying and verification of the results did not happen at the polling stations; there was no electronic transmission of provisional results; and party agents were excluded from the National Tallying Centre.

[14]  The Petitioners further aver that the 1st Respondent violated the Constitution and the Public Procurement and Disposal Act (Cap. 412C, Laws of Kenya), by awarding the tender to an unqualified bidder who then supplied devices that did not work properly, or simply failed, on election day.

(iii) Petition No. 5 of 2013

[15]  The third Petition was filed by Mr. Raila Odinga on 16th March, 2013 against the IEBC as the 1st Respondent, Mr. Isaack Hassan as the 2nd Respondent, Mr. Uhuru Kenyatta as the 3rd Respondent and Mr. William Ruto as the 4th Respondent. The Petitioner avers that the electoral process was so fundamentally flawed that it precluded the possibility of discerning whether the presidential results declared were lawful. The Petitioner seeks relief from this Court pursuant to Articles 2, 6, 10, 38, 73, 82, 86, 259, 260 of the

Constitution; the Independent Electoral and Boundaries Commission Act, 2011 (Act No. 9 of 2011); Regulations 59(1), 79 and 82 of the Elections (General) Regulations 2012; the Elections Act, 2011 (Act No. 24 of 2011) and Sections 4 and 25 of the IEBC Act, 2011.

[16]  The Petitioner avers that the first and second Respondents did not carry out a valid voter registration, in contravention of Article 83 of the Constitution, and Section 3(2) of the Elections Act, 2011 because their official tally of registered voters changed several times.  This resulted in the final total number of registered voters differing materially from what was in the Principal Register.

[17]  The Petitioner also avers that the first respondent failed to carry out a transparent, verifiable, accurate and accountable election as required by Articles 81, 83 and 88 of the Constitution.  The Petitioner asserts that there were several anomalies that occurred in the process of manual tallying, such as: the votes cast in several polling stations exceeding the number of registered voters; differences between results posted and the results released by the first Respondent; the use of unsigned Form 36 to declare the results.

[18]  The Petitioner further avers that the electronic systems acquired and adopted by the first Respondent to facilitate the General Election were poorly designed and implemented, and destined to fail. Due to the failure of the system, the first Respondent was unable to transmit the results of the elections, in contravention of Regulation 82 of the Elections (General) Regulations, 2012.

(iv) Consolidation of Petitions

[19]  On 25th March 2013, by the directions of the Supreme Court, the three 

petitions were consolidated. The Court further ordered that the file for Petition No. 5 be deemed to be the pilot file for the recording of all proceedings and for rendering the final decision. The Court gave the following directions with respect to parties in the consolidated petitions: the Petitioner in Petition No. 5 of 2013 to be referred to as the first Petitioner; the Petitioners in Petition No. 4 of 2013 to be jointly referred to as the second Petitioner; the Petitioner in Petition No. 3 of 2013 to be jointly referred to as the third Petitioner; the respondents to remain as in Petition No.5.

C.     AGREED ISSUES FOR TRIAL

[20]  Prior to the pre-trial conference, the Court drafted a summary of the issues and served this upon the parties for scrutiny and consideration. This was the basis of agreement on issues for trial, which may be summarized as follows:

1. Whether the 3rd and 4th Respondents were validly elected and declared as President-elect and Deputy President-elect respectively, in the Presidential elections held on the 4th of March, 2013.  [This is the crux of the case].

2. Whether the Presidential election held on March 4th, 2013 was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all relevant provisions of the law.

3. Whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the Presidential-election candidates by the 2nd Respondent.

4. What consequential declarations, orders and reliefs this Court should grant, based on the determination of the Petition. 

D. PRESIDENTIAL ELECTION VOTE-TALLY:  ARE “REJECTED VOTES” RELEVANT IN COMPUTING PERCENTAGES?

(i)   Background

[21]  Petition No. 3 seeks to challenge the decision by the 2nd Respondent to include “rejected votes” in the tallying process when calculating the percentage of votes in favour of each candidate. The Petitioner alleges that this decision was unlawful and had the prejudicial effect of reducing the percentage of votes won by Hon. Uhuru Kenyatta. The Respondents, on their part, aver that the Constitution does not expressly provide that rejected votes should not be counted in the computation of the threshold percentage for a win. Having sought and received divergent legal opinions on the issue, the Respondents now urge the Court to settle the issue, as it is likely to arise in future elections. 

[22]   The specific questions to be answered in this claim are as follows:

1. Whether in determining that a candidate has met the threshold stipulated in Article 138 (4)(a) of the Constitution, the term “all the votes cast” includes (i) only valid votes, or (ii) both valid and rejected votes. 

2. Should a ballot paper that has been rejected under the provisions of Regulation 77 of the Elections (General) Regulations, 2011, and has been categorized as being “void”, be capable of being factored in, during the tallying process?

(ii) Petitioners’ Case

[23] The Petitioners state that “rejected votes” were erroneously factored into the tallying system by the 2nd Respondent, and that this has had the prejudicial effect of reducing the percentage of votes won by Uhuru Kenyatta, and keeping his tally only slightly above the threshold for a win. 

[24] The Petitioners state that, at the commencement of transmission of Presidential election results, the 2nd Respondent excluded rejected votes from the computation of the percentage of the votes cast. They state that the common understanding at this stage, was that the votes cast as envisaged by Article 138 of the Constitution included only ballots that constituted valid votes. 

[25] They further assert that in calculating the percentage attributable to each candidate, the Respondents erroneously and unlawfully used a format that included rejected votes as a basis for determining whether a candidate had met the threshold stipulated in Article 138(4)(a) of the Constitution.

[26] They aver that Rule 77 (1) of the Election (General) Regulations, 2012 states that, rejected ballot papers shall be void and shall not be counted. Consequently, the results announced at each polling station as contemplated by Articles 86 (b) and 138 (3) of the Constitution, cannot include rejected votes among the results announced in favour of any candidate. The Petitioners contend that Rule 77 (1) of the Election (General) Regulations, 2012 states that, rejected ballot papers shall be void and shall not be counted. Consequently the results announced at each polling station as contemplated by Articles 86 (b) and 138 (3) of the Constitution, cannot include rejected votes among the results announced in favour of any candidate.

[27]  In the submissions, Mr. Regeru, counsel for the Petitioners, based his arguments on several points, which he urged the Court to use as tools of analysis, in reaching a conclusion in the matter: one being the law as stated in the Constitution, Article 259; and Section 109(1)(p) of the Elections Act 2012; another being arguments based on common sense and logic; and another still, the legal opinions filed as evidence; yet another, being the practice of the 1st and 2nd Respondents; and another still, comparative practice in other jurisdictions. They urge that improperly-marked ballots should be rejected and not factored into the counting and tallying of votes. They rely on the case of Popular Democratic Movement v. Electoral Commission, Constitutional Case No. 16 of 2011, where the Seychelles Constitutional Court (Burhan, J.), being faced with the question whether a rejected vote could be considered a “cast vote”, held that:

“rejected ballot papers are not to be counted as ‘votes’, therefore the term ‘votes cast’ cannot and will not include ‘rejected’ ballot papers”.

(iii)  Responses

[28]   Mr. Ngatia, learned counsel for the 3rd Respondent, in oral submissions, founded his client’s case on certain facts:  transmission of results started on the evening of 4th March 2013; electronic results were transmitted without factoring in the rejected votes, and a stage was reached when the rejected votes on the electronic board had accumulated to the figure of 300,000; so in a real sense, they became “candidate number 3,” after the 1st candidate and the 2nd candidate; members of a rival political party then wrote a letter to the Respondent, requesting that rejected votes be factored in the computation of percentages; to factor in the rejected votes would mean that a candidate who had a 53% lead could come down to 49%; and such a situation would then occasion a run-off election between the two leading Presidential election

candidates.  Mr. Ngatia submitted that, towards the evening of 5th of March, the 1st Respondent announced that, thenceforth, the 2nd Respondent would depart from its previous position and now factor in the rejected votes. He submitted that this announcement was made without giving any other Presidential election candidates an opportunity to be heard; and that all the legal opinions given, vindicated his complaints.

[29]  Mr. Ngatia urged that the Constitution, in Article 138, makes reference to “votes that are cast”. But from the Elections Act, confusion is apparent; as a vote is equated to a ballot paper.

[30] Mr. Ngatia submitted that a ballot paper is nothing more than an instrument to convey the choice of a voter; and a vote is the definable and ascertainable ballot paper; once the ballot has been translated into a valid choice, it becomes a vote.  He submitted that there cannot be a vote which is invalid, what is invalid is a ballot paper; and, as a vote is a defined choice, a ballot which does not translate into a vote is nothing more than a ballot which is rejected.

[31]  Mr. Ngatia submitted that rejected votes should never be the basis for triggering a run-off election.  

[32]   Mr. Kigen, learned counsel for the 3rd Respondent, also urged that the prospect of a ballot paper acquiring the character of a vote is conditional on it clearly showing the choice and preference of the voter. As long as the document deposited in the ballot box does not clearly show what the intention of the voter is, then it should not be included as a vote and should not be allowed as part of the tallying, in ascertaining winning margins.

[33] Counsel contends that the inclusion of rejected votes can only work against a candidate with more votes, and not to the disadvantage of the runner-up. 

[34]  Mr. Oraro, learned counsel for the Petitioner in Petition No. 5, submitted that Article 138(4) of the Constitution means what it says: there is no qualification to the phrase “votes cast”; thus all votes cast must be included whether valid or rejected, in the computation of the percentage threshold for a win. He argued that if the drafters intended that only a certain category of votes would be considered for purposes of determining whether the winning percentage threshold had been met, nothing would have been easier than to stipulate so.

 [35] He remarks a signal by this Court that, it is not tenable to ascribe meanings to constitutional provisions through the sheer craft of interpretation, or by way of endeavours to discern the intentions of Parliament, where the wording of legislation is clear and entails  no ambiguity. 

[36]  Mr. Oraro submitted that the distinction given by Mr. Ngatia on ‘vote’ and ‘ballot paper,’ is a distinction without a difference: as what is defined in the Elections Act is a ballot paper; ballot paper means paper used to record the choice made by voters and shall include an electronic version of a ballot paper, or its equivalent for the purposes of electronic voting.

[37] Counsel further submitted that the argument by the Petitioners for excluding rejected votes is based upon a Regulation; and so the position urged was that the Constitution should be made to fit the terms of subsidiary legislation: a proposition to be rejected, as regulations cannot be used to interpret a provision of the Constitution which is the supreme law.

[38] Mr. Oraro submitted that Regulation 77 of the Elections (General) Regulations, 2012 does not require the exclusion of rejected votes in the final tally, for the purpose of determining whether a Presidential election candidate has attained the threshold percentage required by Article 138 of the Constitution. For Regulation 77 (e) prescribes when a ballot paper is to be rejected, and is not to be attributable to any of the candidates, nor feature in the aggregate tally for the candidate. 

[39] Mr. Oraro submitted that whether a ballot paper has been rejected and void, for purposes of being attributed to any one particular candidate, does not and cannot change the fact that it was a “vote cast”.

[40]  Learned counsel, Mr. Ndubi for the 2nd petitioner, agreed with the 1st Petitioner’s position, and urged that the Constitution of Kenya, 2010 had the clear intention to repeal and replace the Constitution of Kenya, 1969 which has been in force. The former Constitution had provided that “the candidate for President….and who receives a greater number of valid votes in the presidential election than any other candidate…” So, to determine the winner in Presidential elections, the reference was to “valid votes”; and this is now replaced with “votes cast” – an expression so broad as to include “rejected votes”.

[41]  For the Respondents, counsel submitted that the decision to include “rejected votes”  in the elections was made in good faith, based on a literal interpretation of Article 138 (4), as read together with Articles 86 (b) and 38 (b) of the Constitution: and these Articles do not provide that rejected votes should not be counted, or considered in the computation of Presidential election vote-percentages, envisaged under Article 138 (4) of the Constitution.

E. THE VOTERS’ REGISTER: DID IT AFFECT THE VALIDITY OF THE PRESIDENTIAL ELECTION?

(i)     The Petitioners’ Case 

[42]  Lead counsel, Mr. George Oraro, made submissions on the role of technology in relation to voter registration. He submitted that the first Respondent had adopted the “BVR” (Biometric Voter Registration), a computer-based registration solution. This involves biometric technology, which uses computer finger-print scanners and digital cameras to capture the bio-data of an applicant; such personal details of finger-prints and face photo technology are used to verify the authenticity of the voter, and to ensure greater transparency and credibility in the elections.

[43] The Petitioner submitted that the first Respondent had represented to the public that the BVR system would ensure quick and precise voter identification, and this would guarantee a credible election and prevent fraud. 

[44] Counsel focused his submissions on anomalies and discrepancies in the number of registered voters occasioned by the use of a plurality of voter registers. He submitted that, as of the 18th December 2012, the total number of registered voters on the provisional Voter Register was 14,333,339. The provisional register was then opened to the public for inspection. This register was completed and confirmed by IEBC by Gazette Notice; and it stood as the Principal Voter Register with a total of 14,352,545 registered voters. However, this number was inconsistent with the figure of 14,352,533 registered voters, by the first Respondent’s declaration of Presidential election results on 9th March 2013. 

[45]  Mr. Oraro submitted that the IEBC tried to explain the discrepancy in numbers by stating that the 14,352,533 were registered voters on the Principal

Register, but had not included 12 special cases from Soy Constituency in   Uasin Gishu County, as well as 31,318 persons registered in the non-biometric special register. However, Mr. Oraro stated that this explanation was             not valid, as it entailed mathematical inconsistencies: 14,352,533 +12+31,318=14,383,863 – an inconsistency that was further compounded by the figure of 36,236 which the third Respondent’s witness said was in the special register. Counsel submitted that the said special register was never made public. Mr. Oraro submitted that the lack of information from IEBC was contrary to Article 10(2) (c) of the Constitution which provides that transparency is one of the national values and principles of governance. Counsel urged that IEBC’s failure to publish the information was also contrary to Section 27 (1) of the Independent Electoral and Boundaries Commission Act, 2011 (No. 9 of 2011) which provides that – 

“The Commission shall publish and publicize all important information within its mandate affecting the nation.”

[46]  Learned counsel, Ms. Kethi Kilonzo, for the 2nd  Petitioner, entered upon her submission by referring to the difference between the right to a free and fair election, in the terms of  Article 38 (2) of the Constitution, and the right to be registered as a voter and to vote, provided for in Article 38 (3). She submitted that the right to vote is not an absolute right but a conditional right, and that one condition attached to this right is the requirement for the voter to be registered, before exercising the right to vote. 

[47]  Counsel submitted that there can be no free and fair elections if there is no credible register. She derived the definition of a register from Section 2 of the Elections Act, 2011 (No. 24 of 2011). By this provision, constituency register means:

“the register of voters compiled in respect of each constituency by the Commission.”

Section 2 of the same Act defines the principal register of voters as:

“a current register of persons entitled to vote at an election prepared in accordance with section 3 and includes a register that is compiled electronically.”

[48]  Counsel submitted that Section 3 of the Act provides that every citizen will be allowed to exercise their right to vote, subject to Article 138 (3) of the Constitution, if they are registered in the Principal Register of Voters. Based on this provision, learned counsel submitted that there is only one register, the Principal Register of Voters.  She further submitted that Section 4 of the Act provides that there shall be a register to be known as the Principal Register of Voters, which shall comprise a polling station register, a ward register, a constituency register, a county Register and the register of voters residing outside Kenya.  Outside this Register, counsel urged, the law does not provide for any other register. She submitted that there was no provision in the law for a special non-biometric register. Learned counsel submitted that the use of the special register was a violation of the Constitution and the law. She also stated that the validity of the Presidential election, and the right to equality and to vote, was infringed by the use of this special register.

[49]  Further, learned counsel stated that there could be no additions to the Provisional Register as publicized by the IEBC on the 18th December 2012. This is because Section 5 of the Elections Act provides that there can be no registration of voters within 60 days of the first General Election. 

[50]  Section 6 of the Act provides that after fourteen days from the date of inspection of the register of voters, IEBC is to compile, complete and publish a notice in the Gazette, if an amendment of the register of voters is effected. Counsel submitted that the special register of voters with biometrics should have been prepared before the gazettement  process, and published thereafter. 

[51]   In the Indian case of Lakshmi Charansen and Others v A.K.M Hassan Uzzaman and Others, 1985 SCC (4) 689 SCALE 384, the Supreme Court considered the question of alterations to electoral rolls.  The facts of the case were based on a writ petition filed before the High Court in Calcutta which alleged that the electoral rolls in the state of West Bengal had not been properly revised for the purposes of the general elections. The Supreme Court held that the erroneous inclusion or omission of the names of a few persons may have serious consequences. But if a considerable number of names of such persons are either wrongly included in, or excluded from the electoral roll, it will be of great consequence.  The Court also held that:

“It is true as submitted on behalf of the Election Commission, a perfect electoral roll is not possible. But at the same time, it must be remembered that the name of any eligible voter should not be omitted from, nor the name of any disqualified person included in the electoral roll, in violation of any constitutional or statutory provisions. The error, when pointed out, has to be removed.”

[52)  Learned counsel, Mr. Oraro took up the issue of a registration book known as the “Green Book,” used by IEBC; he urged that such a book was not provided for in law.  He submitted that there had been a number of anomalies in voter registration, as in the case of Makueni Constituency, with different figures for registered voters for different elective posts: the total number of

registered voters in the Principal Register of Voters is 64,708; for the Presidential seat is 64,708 (as reported by IEBC during declaration of results); for the same position, by  Form 36, the figure is 64,525; for the Governor seat, 

64,877; for Senator seat, 64,879 and for the National Assembly seat, 64,976.

[53]  Counsel urged that the election of the President in Makueni Constituency did not meet the test of verifiability, accuracy, or credibility. 

[54] Miss Kilonzo urged that in polling station No.083 in Kieni Constituency, the total number of votes cast was 321, with 310 for the President-elect. Yet the Principal Register published on the website of IEBC on the 24th February 2013, showed only one registered voter in that polling station. The presiding officer did not indicate the number of people who were registered to vote in that polling station; and so a question remained as to whether these results were valid.

[55] Counsel relied on case law to support her submissions. In the  Indian case of NP Ponnuswami v Returning Officer Nammakal Constituency (1952) SCR 218, the Baharul Islam J held in a dissenting judgment [at 529 C] that:

“the basis of a free and fair election is the voters list prepared in accordance with the Representation of People Act of 1950 and the Registration of Voters Rules of 1960. If this is not so done, the electoral rolls will have no sanctity and consequently election will also not inspire the confidence of the people.”

[56] Learned Counsel, Mr. Oraro also invoked the Indian Supreme Court case Narendra Madivalapa Kheni v. Manikarao Patil and Others,

Supreme Court of India Civil Appeal No. 1114 of 1976, where the Court had to deal with alterations made to the electors’ roll after the roll became final. The Court found and held that:

“there is a blanket ban in Section 23 (3) on any amendment, transposition or deletion of any [name] or the issuance of any direction for the inclusion of a name in the electoral roll of a constituency [after] the last date for making nominations for an election in that constituency. This prohibition is based on public policy and serves a public purpose. Any violations of such mandatory provision conceived to pre-empt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and is in flagrant violation of section 23(3); names have been included in the electoral roll, the bonus of such illegitimate votes shall not accrue, since the vice of voidance must attach to such names. Such void votes cannot help a candidate win the contest.”

(ii)   The Responses

[57] The first and second Respondents filed a joint replying affidavit sworn by Ahmed Isaack Hassan on 19th March 2013. At paragraph 7 of the affidavit, the first and second Respondents stated that the first Respondent, in exercise of its mandate under Articles 86 and 88(4) of the Constitution, and Section 4(m) of the Independent Electoral and Boundaries Commission Act, had deployed appropriate technology in the performance of its functions. One of the areas where technology was employed was the registration of voters by use of the Biometric Voter Register (BVR). 

[58] At paragraph 12 of this affidavit, it is deponed that the Biometric Voter Registration technology was not meant to replace the legally required manual

system of voter registration, but was meant to provide an additional layer of efficiency and integrity in the electoral processes. 

[59] Counsel for IEBC submitted that this organization, with the concurrence of all line-stakeholders, had opted to use the Biometric Voter Registration technology in carrying out the voter registration exercise. It is submitted that in the process of voter registration, the Commission, in accordance with Article 83 of the Constitution, put in place appropriate mechanisms to ensure that all persons who presented themselves for registration, were registered as voters. The first Respondent referred to Article 83 (3) of the Constitution as the basis for having an all-inclusive voter register.

[60] Article 83 (3) of the Constitution thus provides:

 “Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.”

[61] Upon completion of the voter registration exercise, the  Commission developed the Principal Register of Voters, which was used in the March 2013 General Elections.  The first Respondent’s case sought to rebut three points raised by the Petitioners. The first Respondent responded to the assertion that the voter registration exercise failed the people of Kenya, because the registration process did not uphold the constitutional and statutory requirements, and fell short of the standards set by international best practice, by compromising the integrity of the voter registration exercise. The first

Respondent sought to rebut the presumption of the Petitioners, that Biometric Voter Registration was meant to replace the manual registration process. 

[62] What constituted the Principal Register of Voters?   In its submissions, the first Respondent referred the Court to the definition of a Principal Register of Voters as provided under Section 2 of the Elections Act 2011 (No 24 of 2011).  It is defined as follows:

“a current register of persons entitled to vote at an election prepared in accordance with section 3 and this includes a register that is compiled electronically”. 

[63] It was the first Respondent’s submission that a register compiled electronically is just a component of the Principal Register of Voters. 

[64] This submission was further elaborated by learned counsel for the first Respondent, Mr. Nyamodi who outlined the three components of the Principal Register of Voters, as set out below. 

(a)  The Biometric Voter Register

[65] Mr. Nyamodi referred to the affidavit of Dismus Ong’ondi sworn on    19th March 2013, as part of the evidence submitted in the first and second Respondents’ affidavit to Petition Number  5 of 2013, to define the Biometric Voter Registration System. The deponent described himself as the Director, Information and Technology of the first Respondent. He described the BVR as a system that was used to register a voter’s ten fingers and capture the face image. The biometrics are captured using this device of registration, comprising a software, a laptop computer, a digital camera and a device to

capture fingerprints.  The voter’s details as required to be captured in law, were taken, and a record of the voter with biometrics was created.  The information captured was used in the compilation of the Principal Register of Voters. This explanation was reiterated in the first and second Respondents’ written submissions. 

(b)    The Special Register

[66] Learned counsel Mr. Nyaoga, for the first Respondent, urged that Article 54 of the Constitution articulates the rights of persons with disabilities. It was in respect of this provision, that the special register, besides the biometric register, was developed. Mr. Nyaoga emphasised that persons with disabilities are also protected under Article 83 (3) of the Constitution, which prescribes the components of the register of voters. He submitted that such persons are  also protected under Article 81, which bears the general principles of the electoral system. 

[67] Mr. Nyamodi invoked Article 38(3) of the Constitution, as an important safeguard for the right to vote. This Article stipulates:

“(1)....

  (2)….

  (3) Every adult citizen has the right, without    unreasonable restrictions …….

  a) to be registered as a voter;

  b) to vote by secret ballot in any election or    referendum; and

  c) to be a candidate for public office, or office  within a political party of which the citizen is a member and if elected, to hold office.” 

[68] Mr. Nyamodi urged that the first Respondent, by dint of Article 88 of the Constitution, enjoys the unfettered mandate to organise the conduct of elections and referenda in Kenya and, specifically, to conduct the registration of voters; the first Respondent has a free hand in the registration of voters, as provided by Article 88 which states:

“(1) There is established the Independent Electoral and Boundaries Commission.

(2) A person is not eligible for appointment as  a member of the Commission if the person—

(a) has, at any time within the preceding five years, held office, or stood for election as—

  (i) a member of Parliament or of a county assembly; or

  (ii) a member of the governing body of a political party; or

(b) holds any State office.

(3) A member of the Commission shall not hold another public office.

  (4) The Commission is responsible for conducting or supervising referenda and  elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular,  for—

  (a) the continuous registration of citizens as voters;

  (b) the regular revision of the voters’ roll;

  (c) the delimitation of constituencies and wards;

(d) the regulation of the process by which parties nominate candidates for elections;

(e)  the settlement of electoral disputes,  including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;

  (f) the registration of candidates for election; 

  (g) voter education;

(h) the facilitation of the observation, monitoring and evaluation of elections;

(i) the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;

(j) the development of a code of conduct for candidates and parties contesting elections; and

(k) the monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.

 “(5) The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation”.

[69] The first Respondent in its submissions, urged that voter registration is a critical tool for enforcing universal suffrage, by ensuring that every individual who is eligible to vote is able to exercise his or her right to vote. It also serves the principle of equal suffrage as it guarantees that every voter will cast his or her ballot in parity with all other voters. Accordingly, the special register was a tool aimed at ensuring that there was no disenfranchisement of citizens who had the right to vote. It was the first Respondent’s submission that the special register was also anchored on Article 27 of the Constitution, which provides that every person is equal before the law and

has the right to equal protection and equal benefit of the law. It was, therefore, imperative to ensure that the registration process was inclusive, and provided for measures to include all persons. 

[70] It was on the basis of such constitutional guidelines, that the first Respondent developed the special register. To this end, the first Respondent invoked the case of Georgian Labour Party v. Georgia 9103/04 (2008) ECHR 1888.  The Court, in this matter, stated thus:

“The Court considers that the proper management of electoral rolls is a pre-condition for a free and fair ballot. 

Permitting all eligible voters to be registered preserves, inter alia, the principles of universality and the equality of the vote, and maintains general confidence in the State administration of electoral processes” 

 [71] The special register was meant, according to the first Respondent, to serve a certain category of “special” persons:

  a) voters with disability: those whose fore-limbs or     parts of their fore-limbs were unavailable for the     purposes of capturing their biometrics;

 b) those who, due to the nature of their work, had    either their fingerprints scarred or those whose    fingerprints had lost impression and could not be    captured.

(c)  the elderly, whose fingerprints, due to the decrease in elasticity of their skin, could not be captured;

d) twelve persons from Soi Constituency who had been registered using the training codes and who had to be added to this register. 

[72] Mr. Nyamodi,  submitted that, over and above the biometric and special registers, the primary data entry point, which was done by hand, was the Green Book, otherwise known as the Primary Reference Book. He elaborated that upon the completion of the voter registration exercise, there emerged a need to clean up the register to eliminate persons who had registered more than once, and persons who had not used the requisite documents for registration, namely, a valid passport, or a personal identity card. This clean-up exercise created the duplicate register and the exceptional register. The persons in these two registers were not allowed to vote. 

[73] Counsel referred the Court to the affidavit of Immaculate Kassait, who elaborated the process of voter registration. The deponent swore the affidavit as the Director, Voter Registration Programme of the First Respondent.  The deponent makes the following averments:

 a) The Commission used a limited number of BVR kits     which necessitated the sharing of these devices between    polling stations within the same county.

 b) It was a requirement that any person registering as a     voter should state their preferred polling station. 

 c) In the course of  registration, some voters were      inadvertently assigned the wrong polling stations.

d) To correct these errors, the Principal Register of Voters was opened for inspection and verification to the Public, 

pursuant to the provisions of Section 5 of the Elections Act. 

e)  The Commission then ordered a complete audit of the Principal Register, as against the Green Book which was the primary entry of data. 

f)  The persons assigned the wrong polling stations were then assigned the correct ones, as indicated in the Green Book, and these transfers factored into the Principal Register of Voters. 

g)  This verification exercise naturally resulted in a variation between the number of registered voters in the provisional register and the Principal Register. 

h)  On  18th February 2013, the Commission held a meeting in which it realised that the provisional register was only about 99.5% accurate, as it did not contain several names that had been captured in the Green Book, which was the  primary reference document; for in some instances, the BVR kits had either been damaged or dis-configured and could not relay the data captured in them. 

i) The Commission, in a bid to ensure that all the persons who had presented themselves for registration were not disenfranchised owing to the failure of the BVR kits, resolved to allow the persons in these special circumstances to vote, upon verification of their data. 

j)  The Commission certified the Principal Register, subject to this resolution. Minutes of the Commission’s meeting with respect to this meeting were provided. 

k) This resolution was communicated to the political party  agents by the Commission Liaison Committee.

l)  The use of the Green Book in the affected polling stations  resulted in an upward variation in the registered voters at the affected polling stations. 

[74] The first Respondent in its submissions, stated that the figure of 14,337,399 registered voters was a provisional figure which did not include the persons without biometrics, duplicates, exceptionals; and data not yet collected from BVR kits around the country.  The special register contained a list of 36,236 individuals. There was also a further correction of 30,000 voters who were excluded from the main register due to operator-errors to do with double entry, and 13,237 of these were added to the main register. In Soi, twelve people were excluded from the main register, as they had been added onto the system through a test account, but were later transferred to the main register. The total number of registered voters across the country was, therefore, 14,352,545.  In certain polling stations, such as NCC and Ngong, there was voter movement occurring before the polling date, due to operator- error. The total number of registered voters in this register was, therefore,         14,352,284. The variance between the two main operational registers is 261, a margin of error of 0.0018% which, according to the first Respondent, can be considered materially insignificant.  

[75] Were alterations made to the Voter Register after the certification of the Register? Mr. Nyamodi submitted that alterations or additions may have been made after the 18th February 2013. He added however that these alterations were made pursuant to the Commission’s mandate under Regulation 12 (3) of the Elections (Registration of Voters) Regulations, 2012: 

 “Regulation 12 (3) states that the Commission may amend the Register of voters after it is certified to the extent necessary to

reflect the result of determination of any claim, or appeal that was pending at the time the register was certified”. 

[76] According to the 1st Respondent, this Regulation empowers the Commission to amend the register even after the certification, in view of the 

100% audit, and the verification process which took place.

[77] Mr. Nyamodi submitted that the Principal Voter Register existed, and was determinable and verifiable.  He submitted that the decisions made by the first Respondent to come up with the Voter Register was done so as to ensure that all the persons who had presented themselves to register as voters before the deadline, got an opportunity to vote and exercise their rights under Articles 38 (2) and (3) of the Constitution. 

[78] The case of the 2nd Respondent was advanced by learned counsel Mr. Ahmednassir Abdullahi and Mr. Kamau Karori, who took turns in making submissions. The 2nd respondent urged this Court to exercise judicial restraint in the discharge of its mandate, in the sphere of Presidential election disputes. Mr. Abdullahi focused his attention on the broader issues of judicial adjudication in the political and constitutional domains.  (These arguments are analysed further on).

[79] The 3rd Respondent asked the Court to note that there were six different elections held on the same day, including that for the office of the President: and that the requirements of registration applied equally to all.

[80] Mr. Ngatia, learned counsel for the 3rd Respondent, submitted that it was a principle guiding the preparation of the Voter Register, that the 1st 

Respondent should make every effort to ensure that all qualified citizens of Kenya are able to register as voters, and able to vote during elections and referenda. He specified the relevant provisions of the law: Articles 10(a), 10(b), 38(3)(a), 88(4)(a), 138(3)(a) of the Constitution, which also express the values and principles of democracy and the participation of the people.

[81] The 3rd Respondent maintained that the Independent Electoral and Boundaries Commission had conducted its affairs  in a transparent manner, by issuing press statements, and availing on its website notices and information regarding all aspects of the electoral process, including the registration of voters.

[82] The 3rd Respondent asserts that as far as he is aware, the Principal Register of Voters established under Section 4 (1) of the Elections Act, was prepared in full compliance with the  provisions of that Act, and the Elections (Registration of Voters) Regulations, 2012.

[83] Winifred Guchu, in her affidavit in support of the 3rd Respondent’s response, averred that all stakeholders in the electoral process, including the Petitioner and his party ODM, had participated in, and were fully informed by the first Respondent about the voter registration exercise and the various steps taken to assure the integrity, accuracy, impartiality, efficiency, simplicity and security of voter registration.

[84] She further avers that on the basis of the aforesaid assurance, the Jubilee Coalition and the CORD Coalition used the voter register prepared by the 1st  Respondent to conduct nomination of candidates as stipulated in Part III of the Elections Act, 2011.

[85] Of the Petitioner’s claim that the 1st Respondent had maintained multiple registers, this Respondent averred that he used only one Voter Register, during the elections held on 4th March 2013, which had copies extracted from the Biometric Voter Registration system. 

[86] The 3rd Respondent averred that the 1st Respondent had taken robust steps to involve members of the public, and the Political Parties, in verifying the integrity and accuracy of the Voter Register – including the publication of a notice dated 18th February 2013 informing all stakeholders that the compilation of the Principal Register of Voters had been completed. 

[87] Ms. Guchu averred that the 1st Respondent published a notice informing the public that it would hold countrywide public sensitization on the use of the BVR kits on 12th November, 2012 at several venues; and that it would release the data extracted from the Voter Register. This data was set out in various forms to provide voter numbers in all polling stations, and to give statistics of voters without biometrics per constituency, as well as a detailed voter registration analysis, and details with regard to expected daily enrolment for the period between 19th November 2012 and 26th November 2012.

[88] Ms. Guchu avers that all political parties received a copy of the provisional register of voters in the form of a CD-ROM, which  she annexes to her affidavit, together with the e-mail communications by the 1st Respondent    to political parties. And she deposes that in one of the meetings, all political parties agreed that in the event of failure of the electronic voter identifying device (EVID), the print-out from the electronic register would be used in the election.  The print-out would be made available at every polling station. 

[89] Ms. Guchu adds that in yet another meeting, the political parties complained that some of their supporters had encountered difficulties with the register during the nomination exercise. Their complaints were that some names were missing from the electronic register, while they had registration acknowledgement-slips from the 1st Respondent. The 1st Respondent explained that these were names of people whose biometric details had not been captured, or were captured but subsequently lost. Those details were retained in the manual register. 

[90] The 1st Respondent subsequently provided all the political parties with a complementary list of registered voters capturing the details of all the voters whose biometrics were missing.  The  complementary list of this category of voters had a total of 36,236 registered voters. There was no objection from any political party concerning this complementary register.

 [91] Ms. Guchu deposes that the allegation in Janet Ong’era’s affidavit in support of Petition No. 5 0f 2013, to the effect that the Voter Register was tampered with after the registration period had ended, so as to confer a benefit upon the 3rd Respondent, is not truthful.

[92] The 3rd Respondent, in his affidavit, recounts the occasion of  a press briefing at a meeting chaired by the Coalition for Reforms and Democracy’s (CORD) Presidential candidate, in which that party urges that IEBC should revert to a manual voter registration process, since the electronic system appeared to be unreliable. The 3rd Respondent submits that the Petitioner cannot, in the circumstances, claim the IEBC deliberately set up the electronic system to fail.

[93] The 3rd Respondent seeks to rely on the opinion of the Canadian High Commissioner which indicates that the IEBC had considered preparing a manual voter registration system after the procurement of the BVR system became contentious. He further submits that the Cabinet, supervised by the Petitioner in Petition No. 5 of 2013, had set up a committee to assist the IEBC to procure the BVR system within a short time-frame. 

[94] He avers that registration of voters in Kenya is manual, since a person walks to a registration centre to register himself or herself, and such registration is not done electronically.

[95] Counsel for the 3rd Respondent invoked the Ugandan case of V.K. Bategana v. E. L. Mushemeza, Election Petition No. 1 of 1996 (HCU) (unreported), in which non-compliance with certain provisions of the Parliamentary Election (Interim Provisions) Statute, 1996 was held not to affect the results of the election.  The non-compliance in that election included fail