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Why Supreme Court Judges Njoki Ndung'u and Jackton Ojwang’ dissented

By Kamau Muthoni and Paul Ogemba | Sep 2nd 2017 | 3 min read

Two Supreme Court judges Njoki Ndung’u and Jackton Ojwang wrote a dissenting verdict in which they found there was no reason to nullify the 2017 presidential election.

The two judges in their verdict, read separately, found that National Super Alliance (NASA) leader Raila Odinga failed to prove that the results announced at the constituencies had issues.

They questioned how the transmission system, which Independent Electoral and Boundaries Commission (IEBC) claimed was just a bus, could be the only basis of nullifying the whole election.

In fact, Justice Ojwang said that Kenya’s election is manual and mildly supported by the electronic process.

“It was not proved that the voters’ will during the conduct of elections, was so affected by any irregularities cited so as to place this court or the country in doubt as to what the result of the election was,” Justice Njoki ruled.

She weighed in on four issues in her decision: whether the registration of voters had problems; whether they were properly identified at the polling stations, and, if they were allowed to cast their ballots peacefully.

In Njoki’s mind was also the question on whether the votes cast, counted, declared and verified at the polling station were to the satisfaction of the parties.

She found that no one had contested the numbers announced.

“If the answer to all these questions is in the affirmative, then the election has been conducted properly,” she ruled.

Bad faith

“The petitioners in my view did not present material evidence, to the standard required, to upset the results returned to the National Tallying Centre by the presiding officers in Forms 34A. Those results, counted and agreed upon by agents at the polling station were not challenged.”

The judge agreed with the commission and President Uhuru Kenyatta that there cannot be an election that is 100 percent.

“Challenges are to be expected during the conduct of any election. However, those challenges which occurred, (and in my opinion, none of which occurred deliberately or in bad faith, and which fell particularly outside the remit of the voter and his or her will) – ought not to supplant the voter’s exercise of their right of suffrage.”

Justice Ojwang ruled that there was no iota of evidence from NASA presidential candidate Raila Odinga to upset the will of the Kenyan people. He said that the election was basically about the electorate and not the process that culminated to the final tally.

Ojwang said the case presented before him was on general allegations which did not have a backing by the Constitution and the election laws.

Iota of merit

“Hardly any conclusive evidence has been adduced in this regard which demonstrates such a manifestation of irregularity as to justify the invalidation of the election results,” he ruled. “It is clear to me beyond peradventure that there is not iota of merit in invalidating the clear expression of the Kenyan peoples’ democratic will which was recorded on August 8, 2017”.

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