Justice Njoki Ndung’u: Judges had no basis to overturn the will of the voter

Supreme Court judge Njoki Ndung’u criticised the nullification of the presidential election without scrutiny of ballots to verify the claims of rigging.

Njoki who alongside Justice Jackton Ojwang dissented with the majority decision to invalidate President Uhuru Kenyatta's re-election, argued that the will of the voter is supreme and in the absence of evidence, a Court must not overturn the people’s choice.

She argued the Supreme Court as the final verifying agent has authority to order for scrutiny of ballot papers, recount, re-tallying and inspection of ballots.

"It has to be satisfied with all evidence before it,” Njoki said arguing the ballots were available to carry out the scrutiny before making the drastic decision to nullify the election.

She said a court can only nullify a presidential election by looking at the nature of commission and omission, source of the commission or omission, whether the omission was foretold and what steps were taken to avert the problem and the effect of commission and omission on an individual or a group of individuals.

“The role of judiciary is to give a comprehensible interpretation of the law rather than determine a dispute mechanically and dispose it off without proper evidence,” Njoki said.

She argued that the electronic results transmission is a compliment to manual transmission hence it was not reasonable to invalidate the election citing mishaps in electronic system.

She noted that following analysis of evidence presented in Court by the IEBC on 20th September, 2017, she was satisfied that the Forms used to declare the elections were all proper in Form and content and the Majority did not therefore have a basis to overturn the election of President Uhuru Kenyatta.

In any event, she was of the opinion that the Court had powers to inspect other election material to verify the integrity of the elections.

“There was a verifiable paper trail which the Court could use to verify the various allegations and which was not used. The effect of the Judgement was to deny Kenyans their right to franchise,” she said.

Justice Njoki took issue with a part of the Majority verdict that threatened to nullify a repeat election if the same errors occurred. Her view was that all the arms of government are reinforcing each other and the Supreme Court as part of the Judiciary should not threaten parties with the prospective likelihood to appear before it in the future.