Supreme Court: Violence, Low Turn Out had little impact on Uhuru's win

Jubilee Lawyer ahmed Nassir during the reading of the verdict that lead to the upholding of President Uhuru Kenyattas victory at the supreme court on December 11 (Photo: Beverlyne Musili,Standard)

Violence and low voter presence did not affect the legitimacy and credibility of the October 26 election re-run, the Supreme Court has said.

In addition, the six-judge bench yesterday unanimously ruled that failure to conduct the election in 25 constituencies in Kisumu, Migori, Siaya, and Homa Bay counties had no impact on the final tally of President Uhuru Kenyatta’s 7.4 million votes.

In effect, the judges affirmed the Independent Electoral and Boundaries Commission’s (IEBC) position that it is lawful to announce the final presidential electoral results if they are satisfied that remaining votes cannot have a major impact on already tabulated results.

Remaining votes

“IEBC can declare the winner of an election if the remaining votes do not have any effect on the final results, and we find that they were justified in declaring President Uhuru Kenyatta the winner without votes from the 25 constituencies,” ruled the judges.

The judges then shifted blame on National Super Alliance (NASA) supporters for instigating the chaos that made it impossible to have elections in those constituencies, adding the electoral agency tried all it could but its officials were blocked by opposition backers.

They added that it would be unfortunate if any court would nullify an election just because some people had prevented the IEBC from conducting the exercise. “When citizens use violence to stop an exercise, they are engaging themselves in undermining the Constitution and the rule of law, and if we rule otherwise, then we will be allowing certain candidates to instigate violence during elections in order to have that election nullified,” ruled the judges.

Alleged threats

They further said alleged threats to the Judiciary and state-sponsored threats to opposition supporters were not proven acts of violence to warrant invalidating the presidential vote. The judges, however, agreed and took judicial notice that the election was not conducted in a conducive environment, but that it did not affect the credibility of the process.

They ruled IEBC only needed to satisfy the court that they prepared for the exercise, put all systems in place, gave everyone the opportunity to vote, ensured voting took place, and followed the Constitution and relevant electoral laws in undertaking the exercise.

“In determining whether the election was legitimate and credible, we only required to be satisfied that the commission followed the law and we find that they met the constitutional threshold of conducting a legitimate and credible election on October 26,” said the judges.

On the question of low voter turnout, the Supreme Court judges ruled there was nothing unusual about the low presence of the electorate given that it is the trend whenever a repeat election is conducted.

The petitioners, Njonjo Mue and Khalef Khalifa, had argued the low voter turnout affected the credibility of the process and that Uhuru cannot be legitimately in office with only 38 per cent registered voters participating in the poll.

But the judges dismissed their arguments and agreed with IEBC that it is normal to have voter apathy during repeat elections.

“Election cannot be tainted and challenged on the question of low voter turnout. It is the trend the world over that repeat or by-elections are characterised by low voter turnout which might be as a result of voter fatigue and general voter apathy,” concluded the judges.

The judges accused the petitioners of not providing enough evidence to back up their claims of voter intimidation and bribery, adding IEBC defended its conduct in cancelling polls in hotspot areas.