Judge terms nullification of Uhuru’s re-election political

Judge Jackton Ojwang at the supreme court . 20/9/2017 PHOTO BY GEORGE NJUNGE

Justice Jackton Ojwang said he disagreed with the decision to annul the victory of Uhuru Kenyatta because it was political and not based on law.

The former University of Nairobi law lecturer dismissed the ruling by his four colleagues, saying it failed to consider the Bill of Rights.

“This was a political decision. It is not a product of any juristic process. It was devoid of any legal analysis,” said Justice Ojwang as he read his over two-hour ruling.

He added: “In my considered opinion, judges should focus their attention on the intellectual and jurisprudence rather than emotions by the citizens and political agencies.”

The judge said the petition, filed by NASA presidential candidate Raila Odinga seeking to cancel the election of President Kennyatta after August 8 elections, focused on a limited number of contentions.

They included the argument that the said presidential election was not conducted in accordance with the Constitution and that it was also compromised by certain illegalities and irregularities. The judges said they also overturned Uhuru’s victory because the election lacked integrity, therefore it ought to be invalidated.

“Such claims invoke the question; how is the court to be guided?” Justice Ojwang said.

The other judge who dissented was Njoki Ndung’u as Chief Justice David Maraga, his deputy Philomena Mwilu and judges Smokin Wanjala and Isaac Lenaola ruled in favour of the petitioner.

Another Supreme Court judge Mohamed Ibrahim was hospitalised in the final days of the petition hearings and was therefore not part of the final determination.

Justice Ojwang said Raila failed to prove his case. He said the Opposition chief made ‘wide claims’ hinged only on one pillar of the electoral process — transmission of results.

“Even though there were procedural challenges resulting from human errors, it was not enough to warrant nullification of the elections,” Ojwang said.

“I am of the opinion the majority decision failed to resonate with the Constitution. The case was not valid and was based on weak grounds.”

According to the judge, the election was conducted in an entirely credible manner and Odinga’s ‘broad claims’ did not warrant its nullification.

He also defended IEBC chairman Wafula Chebukati saying he discharged his mandate within the law.

“IEBC chairman is mandated to declare results within seven days. Throughout the process, he discharged his mandate in accordance with the law.”

“The court has to consider whether such contentions should be the basis for annulling the outcome of the presidential election because it is the Constitution that gives the peoples the right to find a pacific, rationale and humane regulatory structure for governance.”

“The Constitution safeguards certain rights and values. It safeguards the rule of law, democracy and participation of the people.”

He quoted the Constitution, which says every adult has a right, without unreasonable restriction, to vote by secret ballot in any election, and to be a candidate for public office.”

“The Constitution entrusts the interpretative mandate to courts to which, for the faithful discharge of its tasks, voters have entrusted the adjudicative sovereignty,"  Ojwang said.

“The law provides the court shall adopt the interpretation that most favours the fundamental rights. The Supreme Court, which is taking such an interpretation just like any other court, is under obligation to promote values that underline an open democratic society based on human dignity, quality, equity and freedom.”

He said the court should have made its decision without what he termed as undue regard to procedural technicalities.

“The court, in its decisions, should always promote constitutional values, rule of law, human rights, fundamental freedoms as spelt out in the Bill of Rights and good governance."