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How IEBC lost Supreme Court battle against Raila Odinga

Thursday November 9 2017

Supreme Court judges

Kenya's Supreme Court judges. Judges can’t promote democracy on their own. PHOTO | FILE | NATION MEDIA GROUP 

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As Kenya prepares for another round of a presidential election being challenged in court and the theatre of Kenya’s best legal minds, the Nation recaps the landmark September 1 ruling that annulled the August 8 poll.

In the historic ruling, the first of such in Africa and the Commonwealth, and only the fourth in the world, the Chief Justice David Maraga-led Supreme Court ruled that the process in an election was as important as the numbers, and could not be brushed aside.


In the 4-2 majority judgment, with Justices Prof Jackton Ojwang and Njoki Ndung’u dissenting, the Supreme Court faulted the electoral commission for failure to transmit results declaration forms from 11,000 polling stations.

Coming from Bomet, Bungoma, Busia, Homa Bay, Kajiado, Kericho, Kiambu, Kisumu, Kisii, Kirinyaga, Nyeri, Siaya, and Vihiga counties, the court noted that the commission should have asked its staff to move to areas with better coverage, saying the areas had fairly good road network.

“Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the presiding officers to travel to vantage points from where they would electronically transmit the results. That they failed to do that is in our view, an inexcusable contravention of Section 39(1C) of the Elections Act,” the court said.


The top court also faulted IEBC for failure to open its servers and show its access logs as had been ordered following the Raila Odinga-led Nasa claims of hacking.


“In other words, our order of scrutiny was a golden opportunity for IEBC to place before court evidence to debunk the petitioners’ said claims. If IEBC had nothing to hide, even before the order was made, it would have itself readily provided access to its ICT logs and servers to disprove the petitioners’ claims,” the court said.

The refusal to obey the order, the apex court ruled, left them with no option but to draw adverse reference against them.

“IEBC’s contumacious disobedience of this court’s order of 28th August, 2017 in critical areas leaves us with no option but to accept the petitioners’ claims that either IEBC’s IT system was infiltrated and compromised and the data therein interfered with or IEBC’s officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data,” said the court.

But it is in the failure by IEBC Chairman Wafula Chebukati to verify results in declaration forms at the polling stations, as recorded in those at the constituencies, that the court went out of its way in the ruling.


The Supreme Court put itself in Mr Chebukati’s shoes, imagined a speech he should have made, wrote it down, and read it on his behalf.

The court even had the time the speech should have been made: Just before he declared the final results on the night of August 11.

“Fellow Kenyans,” the court started the speech. “The results I am about to declare, are exclusively based on Forms 34B which I have received from all the 290 constituency tallying centres countrywide. I have not verified these results against those tabulated on Forms 34A from all the 40,800 polling stations countrywide.”

The speech, the court imagined, would have explained Mr Chebukati’s ground that he was doing it in compliance with the Court of Appeal’s decision in Maina Kiai case that took away from him the right to alter any result.


“This decision by the Appellate Court requires me to treat the results as tabulated by the various returning officers, as final and not to attempt, to verify them against the electronically transmitted Forms 34A. You will, therefore, have to bear with me, as court orders must at all times, be obeyed,” the court went on in the speech they prepared for the IEBC boss.

Further, the court said, Mr Chebukati should have said that since he had availed all the results forms, any observer was free to compare the results against those he was about to declare.

“If such an exercise should reveal serious discrepancies, then one can petition the Supreme Court to scrutinise them, and even annul them, since the Supreme Court has original and exclusive jurisdiction over such disputes…” the court concluded.