Court not to blame for petitioners’ failure to prove case

By Charles Kanjama

NAIROBI, KENYA: It is a truism of self-respecting murder mysteries that in the aftermath of a murder everyone has something to hide. Agatha Christie, supreme writer of murder mysteries, dramatised this in The Murder of Roger Ackroyd, where the Belgian detective Hercule Poirot sits all the potential suspects in a room and declares, “Every one of you in this room is concealing something from me. It may be something unimportant – trivial – which is supposed to have no bearing on the case, but there it is. Each one of you has something to hide.”

One of Agatha Christie’s favourite detectives was the elderly spinster Miss Marple, who proved that the shrewdest detective is the keenest student of human nature. This indeed was the secret behind the most famous literary detective in history, Arthur Conan Doyle’s Sherlock Holmes. Holmes’ forte was the truism that every criminal leaves some clues behind, even if the biggest clue is the lack of clues.

Patricia Cornwall’s novels from the perspective of a keen medical examiner have shown that every murderer leaves something behind, whether a part of self, or a clue from the damage to the corpse. Hence the fascination of mystery writers with the perfect crime, from Edgar Allan Poe’s The Imp of the Perverse to Dostoyevsky’s Crime and Punishment. Yet the perfect crime may be the hardest of all to hide, because it festers in the soul, corroding the person from within, and ever yearning for release.

The post-mortem of the Supreme Court decision in Raila v IEBC cannot be effectively done without keeping these principles in mind. Analysis of the decision discloses an extra fact, “Each key participant in the case was guilty of exaggeration.”

For example, the CORD team promised rock-solid evidence of rampant irregularities and delivered a feeble case focused on about 11,000 votes. Even the additional 800-page affidavit, which they tried to bring in on day 16 of a cast-iron 21-day petition period, only came up with alleged irregularities of just several thousands.

If conclusive, these allegations would have reversed the eight thousand vote margin of Jubilee’s first round victory, but not the enhanced victory margin of 60,000 votes arising from the success of Kuria v Hassan, the petition on rejected votes.

The IEBC legal team promised a systematic response to all the allegations raised but focused mainly on explaining the eight steps of verification in its tallying process. The Jubilee legal team gave a more systematic response, but underestimated the Africog petition as merely a smaller sister of CORD. The Africog team oversold its allegations of discrepancies and failed to counter IEBC explanations that any transcription and addition errors in provisional results were corrected during verification.

And the Supreme Court itself failed to engage in a sufficient and detailed analysis of the facts and law.

Subjective critics of the Supreme Court decision have also failed in their legal and evidentiary analysis, and have misled Kenyans on various fronts. Ultimately, Kenyans asked: “If there was doubt that Uhuru had reached 50 per cent, shouldn’t the court have ordered a run-off?”

This question is at the heart of any critical legal analysis of the court’s judgement. And fortunately, this issue of the burden and standard of proof was one that the Supreme Court dealt with sufficiently.

The answer of the court was that the legal burden of proof remained on the petitioners, and the standard of proof remained pretty high. In other words, CORD and Africog had the job, not of raising doubt about Uhuru’s tally, but of erasing doubt that Uhuru Kenyatta may indeed have reached 50 per cent. If there was reasonable doubt either way, the court was obliged to confirm the IEBC results, which it did.

The perfect crime, like the perfect election, does not exist. Rigged elections always disclose a plethora of evidence of systematic intent to manipulate the exercise or the results. So it is the petitioners’ duty, as explained by the court, “[to] clearly and decisively show the conduct of the election to have been so devoid of merits and so distorted as not to reflect the expression of the people’s electoral intent.” The Supreme Court is not to blame for CORD’s failure to prove its case to the required standard.