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There was no basis to upset the will of the voter, says Justice Njoki Ndung’u

By Protus Onyango | Sep 21st 2017 | 4 min read
Justices Njoki Ndung'u and Philemona Mwilu during the reading of the full ruling of the Supreme Court. [George Njunge, Standard]

Supreme Court Judge Njoki Ndung’u has faulted the nullification of the presidential election before all ballots were scrutinised to verify claims of rigging.

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

Ndung’u argued that the Supreme Court, as the final verifying agent, had the authority to order a scrutiny of ballot papers, recount, re-tallying, and inspection of ballots.

She opined that the court had the powers to inspect all poll materials to verify the integrity of the elections, but failed to do so.

“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.

Form analysis

She argued that her analysis of 291 forms 34B (constituency tally) and the disputed forms 34A (polling stations results) did not establish widespread discrepancies, and that even where there were omissions, these could not affect the results of the election.

She stressed that where the court was in doubt, inspection of the ballot was essential. 

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

 “The role of the Judiciary is to give a comprehensible interpretation of the law rather than determine a dispute mechanically and dispose it off without proper evidence,” Ndung’u said. She argued that the electronic results transmission complemented manual transmission, hence it was not reasonable to invalidate the election based on reported mishaps in the electronic system.

 “Based on the disputed outcome of the 2007 elections, IEBC adopted technology in 2013. It introduced the biometric voter register (BVR) and electronic voter identification device. This year, Kenya Integrated Electoral Management System (KIEMS) was deployed. This is what the law says. Raila should not complain about technology,” she said.

“KIEMS is only a complementary mechanism as envisaged in section 44 A of the electoral Act. Technology is not a mandatory component of elections in Kenya. It can only be used to add or improve electronic mechanism in Section 44 of the Act,” she added.

She said in annulling Uhuru’s election, the judges did not look at section 44 A in its entirety.

“Honourable justices in their majority ruling only partially looked at Section 44 A. They neglected the entire provision,” Njoki said.

She, however, acknowledged that in the country’s electoral process, the counting and declaration of votes is manual while results transmission is electronic.

“This mongrel is something that needs to be looked at. It is the one that is causing problems,” she said.

The judge refuted the evidence by the petitioner, Raila Odinga, that the presidential election had systematic and deliberate malfunctions. She argued it was unfair to interfere with the sovereign will of the people on the basis of failures by a candidate’s agent to guard their votes.

She expressed satisfaction with the verification process in the election, indicating that there were various agents of verification including the IEBC, observers, the media, the public, and the election court.

Security features

The lack of security features or signatures from agents, Ndung’u argued, was not, by itself, a reason to invalidate the election in a scheme of interlocking verification mechanisms.

Ndung’u cited the Court of Appeal ruling that had held that the counting of votes at polling stations was final.

On the majority observation of discrepancies between the votes cast for president and other seats, she opined that the voter was not under any obligation to vote for all the six candidates in an election.

She also faulted the finding that the Independent Electoral and Boundaries Commission (IEBC) refused to obey orders to provide access to servers, arguing the orders of the court were very clear that the IEBC was expected to provide a read-only copy of the logs in the servers with an option to copy. 

She noted that following analysis of evidence presented in court by the IEBC, 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 Kenyatta.

Justice Ndung’u took issue with a part of the verdict that threatened to nullify a repeat election if the same errors occurred. Her view was that all the arms of government reinforce one another and that the Supreme Court should not threaten parties with a future likelihood.

The result of the election was never an issue and the same was not shown to have been affected by the alleged irregularities or illegalities.

She pointed out that according to the practice of law worldwide, human rights are supreme as compared to others.

“In case of competing provisions, nothing else should undermine Article 1 of the Constitution on the sovereignty of the people,” Ndung’u said.

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