There were no surprises when the Supreme Court delivered its reasons for having annulled the August 8 election Wednesday. It had been clear from the determination delivered on September 1 that the petition was going to revolve around “process”.
The court had made strong mentions of compliance with the Constitution and the law in the September 1 pronouncement.
When they delivered their reasons Wednesday, the majority judges approached the issues in a simple way. Numbers were the product of a process.
They were the end product of an elaborate and pre-determined procedure. So, if the process and procedures were not followed correctly, the numbers would all be wrong.
The judges used a very common example of basic maths to explain their point. They said that in a maths test, a student has to show the process through which they have arrived at the solution.
Indeed, a student who comes up with correct answers and is incapable of showing how he or she arrived at the answer is invariably judged to have copied.
The majority in the court approached IEBC from this perspective. They said it was imperative for the commission to show how it had arrived at the final figures.
They wanted the commission to show how it had complied with the legal processes and procedures since this was the only way one could tell whether the results were genuine.
But IEBC had failed to do this throughout the petition’s hearing. It instead treated the need to account for the numbers as irrelevant.
When for instance the commission was asked by the judges what the numbers displayed on the public portal and the TV were, the commission said they were mere statistics.
The commission was equally dismissive of questions regarding the disparity in the format of declaration forms and also on the query of non-transmission of Forms 34A.
It had turned out during the hearing that the commission had not received over 10,000 Forms 34A at the time the chairman declared the result of the presidential election.
The judges were particularly disturbed by the cavalier way the commission dealt with mandatory requirements of the Constitution, electoral laws and regulations.
This attitude made the judges doubt whether these were mere irregularities or deliberate transgressions intended to manipulate the exercise.
In the end, the judges concluded that either the electoral system was compromised by external forces or sabotaged by IEBC officials themselves.
This was made worse by the commission’s refusal to obey an express court order to allow scrutiny of its technology.
According to the judges, the process of scrutiny was the best opportunity for the commission to debunk the petitioner’s case and prove it had conducted the election in accordance with the Constitution.
The court was of the opinion that this is something the commission would have itself offered. It did not need to be forced to do it.
But instead of taking the chance to shoot down the petitioner’s accusations, the commission instead disobeyed the court’s order and did so in a manner the court found to be contemptuous.
The judges in this respect concluded that IEBC had conducted the election as though the Constitution and the law did not exist. They said the commission was acting as though it was a law unto itself.
Listening to the judges, one gets the picture of an IEBC that feels it is above the law and acts with impunity, of commissioners and a secretariat that does not see themselves as under an obligation to play by any rules other than their own.
The court observed how the commission made changes to the operation of the Kenya Integrated Election Management System (Kiems) kits by allowing the gadget to transmit text without image and it did not consult any of the candidates or even inform them that it had done so.
The same happened regarding the declaration forms where substantive changes were made to content and format without any reference to the candidates.
On the issue of transmission of results from areas with no network, the judges were outraged that the commission had sat back till two days to the election date to tell the country that about 11,000 polling stations had no coverage.
The court noted that the commission had done nothing to address this issue, though it had been privy to it weeks before voting day.
Where the commission attempted to make an explanation, it did so as though it didn’t matter whether the reasons were convincing or not. The commission had, in fact, throughout the petition treated the court as an irritating interruption of an electoral process whose fate had already been accomplished.
In this way, impunity became not only the reason IEBC bungled the election, but also the reason it fluffed its own case at the Supreme Court.
The judges found that the petition was very clear about its foundations and approach when it questioned the election. The judges said IEBC never understood the case.
We as lawyers for the petitioners were increasingly dumbfounded by the direction the commission took in the case from day one.
The commission entered the case informed by its own belief as to what was going to be the most important issue around which the court would make its decision.
It was very clear throughout the hearing that the commission did not understand what the case was about.
The commission kept dwelling on numbers even as the court was clearly indicating to it that you could not talk about numbers before you ensure that those numbers were genuine. It did not matter what the votes for the candidates were when there was evidence that those votes were not verifiable and were fraudulent.
By ignoring the clear signals from the court during the hearing, the commission did not care to convince the court that its systems were secure, its documentation verifiable and its numbers accountable.
This was a function of impunity. I don’t think it ever occurred to the commission even in its wildest imagination that the court could overturn the election.
The commission came to court arrogantly, responded to the petition arrogantly, treated the court arrogantly and unfortunately met an upcoming phenomenon in Kenya which we all must start getting used to; a strong and independent Judiciary that is made up of judges who are not respecters of men and that have the courage to state the truth of the law as they see it.
Mr Mwangi, a lawyer, coordinated the defence team for Nasa presidential candidate Raila Odinga in the petition.