Ojwang’, Ndung’u fault Supreme Court majority decision


Supreme Court Judge Lady Justice Njoki Ndung’u
Supreme Court Judge Lady Justice Njoki Ndung’u.

The Supreme Court of Kenya nullified the presidential results of the August election after four of the six sitting judges ruled in favour of the petitioner’s claims after faulting electoral commission’s handling of the results transmission.

Chief Justice David Maraga, his deputy, Philomena Mwilu, Justices Smokin Wanjala and Isaac Leonala ruled in favour of the petitioner while Justices Njoki Ndung’u and Jackton Ojwang’ dissented, ruling the court ought to have ordered a vote recount.

Jackton Ojwang giving his detailed judgement said that;

” What evidence did the petitioners use, and did they discharge their initial burden of proof and completed with an effective clearance of the constant legal burden upon them? The evidence scenario speaks for itself as the petitioners resort to broad assertions of alleged wrongs on the paths of the first and third respondents. The primary results declaration forms 34A and 34B had in no way been compromised as we gauge their accuracy and overall integrity. We depose that the forms 34Bs had been forwarded from the constituencies to the national tallying center for verification with forms 34As and for tallying purposes. ”

He went on to state that the IEBC handled the elections in a transparent and commendable way and the results truly displayed the sovereign will of the people.

Justice Ndung’u, in her four-hour detailed dissent judgment concurred with the ruling of Justice Ojwanga, and even said that she strongly recommended the four judges who ruled in favour of the petitioners to consider going back to the drawing board to reverse their judgment, a privilege enjoyed by the Supreme Court being the apex court in the country.

“If the outcome incapable of being trusted in reflecting the will of the people, can a reliable outcome be determined in a manner other than holding a fresh election? An attempt to displace election without proper recourse to the stated case and evidence amounts to an unfair dislocation of accrued rights under the Constitution to the people and their elected representatives.”

The dissenting judges took seven hours to render their judgments, however, the initial ruling by the majority of the judges on the bench to nullify the presidential election still stands as the nation prepares for fresh polls next month.

Lawyer Ahmed Nassir disagreed with the majority judgment and postulated that it was unfair to claim President Uhuru Kenyatta never won the election owing to hitches in the process of results transmission.

“To nullify the results of my clients who won with a large margin on grounds of the process of the election is a blow to the civic rights and the sovereign will of the people,” he asserted.

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Story By Steve Otieno
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