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Judge Njoki Ndung'u criticises apex court's majority decision

Wednesday September 20 2017

Njoki Ndung'u

Justice Njoki Ndung'u. She, Judge Jackton Ojwang and Deputy Chief Justice Phimomena Mwelu delivered the ruling on December 14, 2017. PHOTO | FILE | NATION MEDIA GROUP 

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Justice Njoki Ndung'u, who together with Justice Jackton Ojwang dissented with the majority decision to quash the re-election of President Kenyatta, has criticised the judgment.

Judge Ndung'u on Wednesday said she was satisfied that the August 8 poll was conducted in accordance with the Constitution and election laws.


She discounted key parts of the evidence that informed the decision of the majority opinion.

The judge, who said she analysed the entire evidence adduced by Independent Elections and Boundaries Commission (IEBC) against the Nasa petition, stated that the disputed Form 34As used to declare the election were proper in form and content.

The judge, who was the last to deliver her full decision, stated the court must be sure there are real and not imaginary grounds for concluding that the presidential results were not fair.


Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola had in their judgment upheld arguments by Nasa.


They ruled that IEBC failed to verify the numbers before declaring Uhuru Kenyatta the winner and Nasa proved that declaration was made before receiving all the 40,883 Forms 34As in breach of the Elections Act.

The court also said that a random scrutiny of some Forms 34As showed there were widespread discrepancies.

Justice Ndung’u, however, said she conducted a comprehensive analysis of all the 291 Forms 34B (290 constituencies and Diaspora) and the disputed Forms 34A and noted they were proper.

She faulted her colleagues for not using the certified Forms filed in court by the IEBC to verify the allegations made by the petitioner, Nasa flag-bearer Raila Odinga.

Where there were omissions, she said, the same could not affect the result of the election and the court had powers to inspect other election materials to verify the integrity of the elections.


But Justice Ndung’u said there was a verifiable paper trail which the court could use to verify the various allegations and which was not used.

She further explained the verification and cited the various agents who could carry out the process including IEBC, observers, the media, the public and any election court hearing an election petition.

Therefore, she said, the lack of security features or signatures from agents, as cited by Nasa, was not by itself a reason to invalidate the election in a scheme of interlocking verification mechanisms.

She ruled that the majority opinion did not have the basis to overturn the election of President Kenyatta.

“Verification is an exercise that comprises the entire electoral process,” she said.

In her decision, the judge mostly focused on the rights of voters, arguing that elections are “rights- centric” and not “form-centric” and further emphasised that where the court is in doubt, inspection of the ballot materials was essential.


The result of the election, she said, was never an issue and the same was not shown to have been affected by the alleged irregularities or illegalities.

According to her ruling, there was no basis to reverse the will of voters and in the absence of evidence, she added, a court must not interfere with the people’s choice.

The judge also said an assumption by the majority that since there were more votes cast in favour of the Mr Kenyatta compared to governors and MPs then IEBC had interfered with the result of the presidential election was wrong.

The law allows a voter to cast only one ballot so long as the unused ballots were kept aside in tamper proof envelopes, she informed the other judges, adding that a voter is also not under any obligation to vote for all six candidates in an election.

The judge also faulted her colleagues for deliberately overturning a previous decision of the court on Section 83 of the Elections Act to favour a finding of nullity.


“Elections belong to everybody, and it is everyone’s responsibility to protect them,” she ruled.

On the electronic transmission of results, she disagreed with the majority decision that IEBC disobeyed the court’s order to provide access to ICT logs and servers.

The judges had found that the commission’s failure to open itself up for scrutiny was proof that it was hiding something.

But Justice Ndung’u said the court’s orders were very clear and distinct that the IEBC was expected to provide a read-only copy of the logs in the servers (with an option to copy).

“The court did not give orders for the petitioner to access the first respondent’s servers but only access the read-only copy information as their integrity had to be protected,” she said.

In polling stations not covered by 3G and 4G mobile phone networks, manual transmission of results was the proper mode of transmission as it is the complementary mechanism of technology, she stated.


A legislative reconsideration of the electoral law to clarify that technology is secondary to the manual transmission system should also be made, according to her.

“Our electoral process is not purely electronic, it comprises of both manual and electronic, it is largely manual,” she stated.

Justice Ndung’u also took issue with a part of the court’s majority that threatened to nullify a repeat election if the similar errors raised in their judgment recurred.

“It is injudicious and imprudent. The discipline of an unappointed arm of the government should be self-regulatory. No arm of the government is infallible,” she said.


In her opinion, a part of the judiciary should not be seen to threaten parties with the likelihood of appearing before it in the future, adding that it is mandatory that the Supreme Court only makes a determination in an presidential election petition after thorough and proper consideration of the evidence before it.

The majority judges, according to her, proceeded with the determination of the case akin to a court sitting on appeal.

In her assessment, Mr Kenyatta was properly and validly elected as the president and the effect of the judgment was to deny Kenyans their right.