Parliament should review the law of precedent in relation to the presidential poll annulment
Mixed reaction have greeted President Uhuru Kenyatta’s demand that the four Supreme Court judges who nullified his win in the August 8 General Election come clear on the grounds they based their finding in light of emerging evidence that they was no proper scrutiny of evidence submitted by his lawyers and those representing the Independent Electoral and Boundaries Commission.
From the majority ruling, it is clear that the judges had already made up their mind to nullify the election outcome even before they retreated to consider the evidence and the law, a basic requirement in any legal process.
They based the judgement mainly on the submissions of counsel and failure by the IEBC to comply with some of the orders they had issues. In their own finding, if questions on the integrity of the process persisted, then the outcome was irrelevant.
It will be a tragedy if this is the jurisprudence that election courts will take into account in determining future disputes, including the petitions challenging the results of the six other elections that were contested on August 8.
It does not help matters when the majority vowed to nullify any other future election if the process is questioned as this would disfranchise millions of Kenyans who wake up early to cast their ballots in the belief that every vote counts at the end of the day.
For instance, the judges accuse IEBC of failing to provide full access to Forms 34A and 34B and only availing them in read only format, and this appears to have been the turning point in determining the fate of the Raila petition.
This is what the judges say: “Had the Court’s Order been complied with, it would have unraveled the mysterious puzzle surrounding Forms 34A. Regrettably, according to the information made available to Court, by its appointed experts, the 1st respondent only allowed read-only access to this information without the option to copy in soft version only two hours to the closure of Court proceedings which never fully happened anyway. By this time however, the puzzle had been unraveled in the mind of the Court and we shall shortly explain why.”
Yet according to Lady Justice Njoki Ndung’u, who dissented to the majority ruling, she took time to go through all the contested forms and found nothing wrong with them.
Given that by the time the petitioners filed their petition, Forms 34A from polling stations that were out of the 3G and 4G network had not been received, is it possible that they could have relied on falsified copies submitted by their own agents to challenge the results and the judges did not take time to scrutinise their authenticity.
With regard to access to IEBC’s servers and ICT logs, it is clear that some of these demands were beyond IEBC’s jurisdiction given that the contracted firm, Morpho-Safaran is a foreign entity.
Indeed, as Lady Justice Njoki Ndung’u noted in her dissenting opinion, the court had, in fact, disallowed a prayer by the petitioners to be granted direct, unfettered access to relevant persons and systems at Safran, being cognizant of the jurisdictional difficulties of granting access to an entity based in France that was also not party to these proceedings.
How then could the same court turn around and rule in favour of the petitioner on almost this ground alone.
Granted the inconsistencies to Forms 34A and 34B as well as lack of securities features, signatures and handover notes, had the court taken its time to scrutinise the materials deposited by the IEBC, some of the claims made by the petitioners would have been proved to be outrageous.
However, because it had already made up its mind, the majority found this to be unnecessary. The result was what the President rightly termed as monstrous injustice that took place without due regard to evidence.
Going forward, Parliament to move with speed and review the law of precedent in relation to the presidential poll annulment decision to ensure that the sovereign will of the people is protected in future elections.
By Sarah Korere, Laikipia North MP
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