Judges: Numbers alone could not form basis of upholding election

From left is Justice Njoki Ndung'u, deputy Chief Justice Philomena Mwilu,Chief Justice David Maraga, Jackton Ojwang and Justice Isaac Lenaola during Supreme Court Judgement on 20 September 2017. [Edward Kiplimo,Standard]

The Supreme Court did not find any criminal culpability against individual IEBC officials.

The majority judges ruled that NASA presidential candidate Raila Odinga did not give evidence linking any officer to any irregularity. Instead, the judges ruled, they only found institutional failures and not anyone carrying out illegal practices.

“Although the petitioners claimed that various offences were conducted by the officials they did not prove. What we saw is institutional failures and we are unable (to find) any evidence of individual culpability,” the judges ruled.

The court ruled that IEBC should carry out a fresh election and should not conduct the election in a casual manner as it did.

“The presidential election was not conducted in accordance with the Constitution. That illegalities and irregularities were substantial, a declaration is hereby issued that the third respondent was not validly elected. The IEBC should conduct a fresh election within 60 days,” the judges ruled.

Supreme Court judges detailed irregularities committed by the electoral agency to justify their nullification of the August 8 presidential election.

Chief Justice David Maraga, his deputy Philomena Mwilu, justices Smokin Wanjala and Isaac Lenaola reiterated they would not close their eyes to electoral irregularities and illegalities that would interfere with the credibility of an election.

“We have shown that results of an election can be overturned if a petitioner can prove the election was not conducted in accordance with the Constitution and election laws. All we are saying is that IEBC (Independent Electoral and Boundaries Commission) must conduct the election in conformity with the Constitution,” the Chief Justice said.

The judges said the agency must avoid the mistakes it made during the August 8 presidential election.

They warned that if IEBC, in the repeat presidential poll scheduled for October 17, fails to conduct an election within the confines of the Constitution and electoral laws, they would nullify the outcome irrespective of who is declared winner.

To justify why they nullified President Uhuru Kenyatta’s win, the judges singled out three issues for determination; whether the presidential election was conducted in accordance with the law, whether there were irregularities, and if they impacted on the validity of the election.

Key among their findings were the discrepancies in Forms 34A and 34B, the unexplained difference of over 500,000 votes between the final presidential results and other seats, irregularities in results transmission and failure by IEBC to open their servers for audit.

“Quality is as important as quantity and whether President Uhuru got a high number of votes is irrelevant. It is our finding that the illegalities and irregularities committed were substantial and no court would regard them as insignificant to legitimise the election,” they ruled.

IEBC had declared Uhuru the winner with 8.2 million or 54 per cent of the presidential vote. But Raila, who the commission said received 6.7 million or 47 per cent, successfully petitioned the court to invalidate the election.

Among the constitutional provisions and electoral laws the Supreme Court said IEBC violated were articles 38, 81, 86, 88, and 138 of the Constitution, Sections 39, 44, 53 and 83 of the Elections Act, and Regulation 22 of Elections Technology Act.

The judges said the commission failed to disprove the evidence adduced in court, even after the petitioner, Raila, had argued his case and shifted the burden to IEBC.

“We gave them (an) opportunity to prove the election was credible and in conformity with the law but they refused to seize the opportunity. Instead they chose to be contemptuous and disregarded our order for limited access to their servers, which would have disproved claims of hacking,” the judges ruled.

It was that audit of IEBC servers, ICT systems and Forms 34A, 34B and 34C which formed part of the evidence relied upon by the judges to detect irregularities and non conformity with the law during voting, transmission, tallying and declaration of final results.

Forms 34A

The Supreme Court found that the electoral commission failed to adhere to the Constitution by announcing President Kenyatta the winner without having all forms 34A from the over 40,000 polling stations.

They questioned how IEBC Chairman Wafula Chebukati would have ascertained that what was in forms 34B was as a result of collating all the forms 34A when he had not received and verified them.

Verification of the results tallied in the national tallying centre formed the backbone in which the highest court in the land ruled that the election failed to meet the threshold set by electoral laws and the Constitution.

According to the court, IEBC Chief Executive Ezra Chiloba admitted refusing to give NASA all the forms 34A (results from the polling station) used in generating forms 34B (aggregate at the constituency level), five days after final results had been announced.

“Why was the IEBC not able to give all the forms if the results were based on them? Why were there 11,000 forms 34A missing? Were all forms transmitted simultaneously to the constituencies and national tallying centre?  If so, why was it difficult to supply them?” the court questioned.

 

Forms 34B

A scrutiny of randomly selected forms by Supreme Court registrar Esther Nyaiyaki revealed that some did not have water marks and security features while others were carbon copies.

 Although there is no requirement that the commission puts water marks, the court found that lack of uniformity in the forms created doubt on whether the final result was a true reflection of the will of the people.

Interestingly, form 34C, which is the document given to president as proof of the win, did not have the security features that had been assured by the commission.

The judges found that since the ballot papers and forms were all printed by Al-Ghuriar, then uniformity was expected.

“We were disturbed that the court would be left to be asked about the security of the tabulation forms. Form 34C did not have security features. Many of the forms had not been stamped and not signed. Why would a returning or presiding officer not sign a form that he or she generated?” the judges posed.

The court, however, did not find individual culpability of the IEBC top leadership.

Although the judgement questioned why some returning officers failed to sign the forms and why there was no verification, it was silent on who to blame.

Results transmission

The court ruled that IEBC had not explained why the scanned forms were not sent together with the text. According to the judges, the commission assured Kenyans 45 days to the election that it would have both the forms and the results keyed in sent at the same time.

The court found IEBC did not give a satisfactory explanation as to how lack of 3G and 4G network affected the simultaneous relaying of results.

 Majority judges explained that if the forms were scanned at the polling stations, they would have been transmitted immediately since both the returning and presiding officer accessed the network.

“The IEBC ICT officers ought to have known that there are areas without network and would have given a solution. All that was required for the presiding officer was to move to a vantage point of the network and the same would be automatically sent since the same had already been scanned.”

Tallying

The judges were categorical that an election is not only about the numbers but also the process used to generate it.

“Even in school during mathematics classes, we were taught that to arrive at a conclusion there must be a formula. We find that the tallying process affected the validity of the results,” the judges ruled.

 

They ruled that the most important aspect during the election is counting and tallying of votes and given that many results were transmitted in the absence of scanned forms 34A, Chebukati could not validly tally and declare the final results.

Audit of forms, servers and logs

On their order for audit of forms 34A, 34B, 34C and the IEBC servers and logs, the judges ruled that the findings by their court-appointed ICT experts painted a grim picture, confirming that the election was not done in accordance with the law.

The judges questioned why despite their order, IEBC only opened the servers two hours before the closure of the hearing without giving the ICT experts the option to copy the data and logs.

“It became difficult for our experts to ascertain if there was hacking of the IEBC systems. They failed to allow access to two critical areas of their logs and servers, which would have tilted the case in their favour. Their refusal made us believe the systems were infiltrated and that the outcome of the results could not be verified,” the judges declared.

Irregularities and illegalities

The judges ruled the election was marred by irregularities and illegalities that made the final results invalid.

According to them, many forms used to conduct the election had no security features, others had no uniformity and IEBC failed to give a concrete explanation for the discrepancies.

Out of 4,299 forms randomly selected for scrutiny, the judges found out that 481 were carbon copies, 157 were not stamped, 259 were not signed, 289 had not been properly filled which in total affected 90 constituencies accounting for over 3.5 million votes.

“Not every irregularity is enough to nullify an election, but we found the irregularities and illegalities had replicated across the country. Our findings were that the irregularities were of such substantial magnitude that any person in his right senses cannot say the elections were free and fair,” said the judges.

They reiterated that numbers alone could not be the basis of upholding the elections, adding that the numbers at times cannot be an expression of the people’s will but a generation of forms that do not conform to the Constitution and election laws.