Majority decision ruinous assault on constitutionalism

Voters queue to cast their ballot at Ruthimitu Secondary School in Dagoretti South Constituency on August 8, 2017. Decision of the Supreme Court to nullify presidential election is a ruinous assault on constitutionalism. PHOTO | SALATON NJAU | NATION MEDIA GROUP

What you need to know:

  • The reasoning deployed by the majority to arrive at these findings is not only devoid of any serious legal analysis expected of judges at the apex court but is profoundly wrong on the basis of first principles of democracy and constitutionalism.

  • The reason why serious judges are hesitant to overturn election results is not only based on traditional judicial self-restraint but most importantly deference to the people as the sovereign authority in a constitutional democracy. 

  • Tragically the Maraga Four were either oblivious of these first principles of a constitutional democracy or the bug of judicial activism has infected them so much that they now assume the democratic will of the people is valid subject to the approval of courts. 

After Chief Justice David Maraga read the verdict of the Supreme Court to nullify the presidential election on September 1, 2017, Senior Counsel Ahmednasir Abdullahi rose to question the wisdom of the court majority and expressed his hope that when the reasoned judgment is delivered, it would explain precisely how the alleged illegalities and irregularities reversed the huge victory of Uhuru Kenyatta over Raila Odinga.

The majority judgment delivered last Wednesday did not rise to Mr Abdullahi’s challenge to explain away an apparent robbery of Uhuru’s numerical victory but instead makes two controversial findings.

First, the majority claims that “contrary to popular view, the results of an election in terms of numbers can be overturned if a petitioner can prove the election was not conducted in compliance with the principles laid down in the Constitution and the applicable law”.

Secondly, the majority finds that “the tallying process affected the validity of the results”.

TALLYING PROCESS

Regrettably, the finding that the tallying process affected the validity of the results betrays a worrisome lack of candour on the part of the court majority.

The tallying of presidential election results occurs at three stages namely polling station (Form 34A), constituency level (Form 34B) and at the national tallying centre (Form 34C).

The numbers contained in these forms were not impeached before the Supreme Court and so the quality of the forms containing results could not in all honesty justify nullification of the presidential election. 

Moreover, as Justice Njoki Ndung’u observes in her dissenting judgment: “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 judgment was to deny Kenyans their right to franchise”.

CONSTITUTION

The reasoning deployed by the majority to arrive at these findings is not only devoid of any serious legal analysis expected of judges at the apex court but is profoundly wrong on the basis of first principles of democracy and constitutionalism.

Lest we forget, chapter one of the Constitution relates to sovereignty of the people and supremacy of the Constitution (Article 1-3) whilst Article 4 declares Kenya a sovereign Republic which shall be a multi-party democracy founded on the national values and principles the foremost being human dignity, human rights, the rule of law, democracy and participation of the people. 

The preamble to the Constitution declares that we the people of Kenya adopted, enacted and gave ourselves the Constitution of Kenya, 2010 in exercise of our sovereign and inalienable right to determine the form of governance of our country.

Pursuant to Article 1 of the Constitution, all sovereign power belongs to the people of Kenya and may be exercised directly or through the Executive, Parliament and Judiciary.

CONSTITUTION PRINCIPLES

It seems crucial to restate these first principles of our Constitution in order to make the elementary point that when the people exercise their sovereign powers directly, the other organs of government vested with delegated power to exercise the people’s sovereign power should do so without illusions about the extent and nature of their powers.

Under our Constitution, the people exercise their sovereign power directly during elections and referenda.

The reason why serious judges are hesitant to overturn election results is not only based on traditional judicial self-restraint but most importantly deference to the people as the sovereign authority in a constitutional democracy. 

Tragically the Maraga Four were either oblivious of these first principles of a constitutional democracy or the bug of judicial activism has infected them so much that they now assume the democratic will of the people is valid subject to the approval of courts. 

INVALIDATED

This is not hyperbole.  The principal reason why the court majority invalidated the presidential election is because of irregularities and illegalities in the transmission of results.

In their reasoned judgment, the majority declared those illegalities were substantial and significant enough to affect the “integrity of the elections, the results notwithstanding” and poignantly vowed to make the same decision again if IEBC does not get it right next time.

In short the IEBC systems and computers must work and get it right throughout the process failing which the electoral result will be overturned even if the part of the process involving the people is okay.

This logic is evidently so atrocious that many people are wont to forgive President Kenyatta’s uncharitable description of the majority decision as open robbery and a judicial coup.

MISUNDERSTOOD

In my opinion, much as I agree with the majority decision that IEBC seems to have misunderstood Raila Odinga’s petition which revolved around violations of constitutional provisions and principles, we must never forget that the battle was all about validity of electoral results rather than a trial of IEBC’s computers and capacity of its lawyers.

In all honesty the courts are not free from blame for making it virtually impossible for IEBC and its lawyers to know with certainty what the law is and how to comply with it.

In my view, it is not easy to hit a moving target and since the judges kept changing the meaning of laws and regulations until a few weeks to the General Election they cannot take the moral high ground in regard to IEBC’s predicament.

In late June, in middle of the campaigns, the Court of Appeal upheld the judgment of the High Court in the now famous Maina Kiai case which declared as unconstitutional Section 34(2) of the Elections Act and Regulation 87(2)(c) so that the results declared by constituency returning officers are final and can only be challenged in an election court.

NUMBERS

The appellate judges added that numbers are everything in an election and the declaration of results at the polling station is sacred because “the polling station declaration of results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station”.

Admittedly, in his petition, Mr Raila Odinga did not challenge the electoral results in Forms 34A for the 40,000 or so polling stations or the 290 Forms 34B at the constituency level.

Put differently, Mr Kenyatta won the presidential election fair and square using the yardstick of law as interpreted in the Maina Kiai Case because in the end neither Mr Odinga nor the court majority pretended that any of the “final results” declared in the 290 constituencies was fraudulent or illegal. 

On the contrary, what the court majority says is that because IEBC mishandled transmission of the final results, the outcome must be overturned because it was not and could not be verified at the national tallying centre. In effect the order for a fresh election is a punishment to the voters because of alleged mistakes of IEBC officials.

Let me confess that until the verdict of the Maraga Four, my understanding was that true justice required punishment of IEBC officials who may have bungled the results transmission but the election outcome should have been upheld.

Tragically, it is easier, as Justice Ojwang implies in his dissenting judgment, to understand the majority judgment from a political rather than a legal perspective.

 

The writer is a constitutional lawyer [email protected]