The September 1 Supreme Court annulment of the presidential election was no doubt a major surprise to most, including petitioner and losing candidate Raila Odinga, and respondents President Uhuru Kenyatta, the Independent Electoral and Boundaries Commission and its chairman Wafula Chebukati.
Many observers would have expected the 2013 Supreme Court bench led by liberal activist Willy Mutunga, more likely to make such radical ruling than the present court by his successor as Chief Justice, conservative judiciary insider David Maraga.
The bombshell delivered on September 1 was history and irreversible by the time of delivery Wednesday of the full majority ruling endorsed by the Chief Justice Magara, Deputy CJ Philomena Mwilu, and Judges Smokin Wanjala and Isaac Lenaola.
The ruling read in abridged version, to be followed by circulation of the full document, was intended simply to provide the detailed reasoning behind the historic annulment of President Kenyatta’s election victory.
The reasons provided might well make one recall the final day of the petition when the lawyers representing all sides made their closing remarks.
In his closing remarks, Mr Odinga’s lead counsel James Orengo came across almost giddy with confidence that he had clinched the case.
He reminded those who had commented that the petition case had revealed no smoking gun that scrutiny of the IEBC election result forms, the electronic transmission system and the computer system server indeed revealed the smoking gun.
He contended that no one who had seen the evidence could come up with any other conclusion but that the entire election was a monumental fraud by which the declaration of President Kenyatta as the election winner could not stand.
If Mr Orengo seemed beyond himself with confidence, his adversaries on the other side, Mr Fred Ngatia and Mr Ahmednassir Abdullahi representing President Kenyatta; Mr Paul Muite and Mr Paul Nyamodi for the IEBC, and Mr PLO Lumumba and Mr Kamau Karori for Mr Chebukati, were almost timid by comparison.
They all seemed hesitant and unsure in their closing remarks. Some of them had vigorously opposed the application for scrutiny of the result declaration forms 34A from the polling stations and 34B from the constituency tallying centres, as well as ‘opening’ of the IEBC server.
But after the exercise was concluded, it was as if what was revealed left them slightly shell shocked.
One of the lost aggressive and methodical courtroom lawyers around, Mr Ngatia’s closing statements had sounded almost like a concession speech.
Like his colleagues on the respondent side, he was essentially admitting that scrutiny of the results forms and IEBC computer systems confirmed some of the allegations raised in the petition, but argued that any anomalies were simple clerical errors, and in any case had no impact on the actual recorded vote count which had President Kenyatta a clear winner.
The majority verdict read in turns Wednesday by Justice Lenaola, Justice Mwilu and finally Justice Maraga, differed with the respondents on the impact and severity of the ‘errors’.
What Mr Ahmednassir had dismissed as a ‘fishing expedition’ by a petition that had no solid evidence was actually the clincher.
The scrutiny ordered by the court served to add weight to petition claims previously presented in various affidavits that there was likely infiltration of the IEBC computer system and manipulation of results data.
It was also seen that various anomalies and discrepancies on the original and scanned Forms 34A and 34B indicated industrial-scale tampering with the vote count recording, tallying and electronic transmission systems, including introduction of forged documents.
The judges also found highly suspicious Mr Chebukati’s declaration of the presidential election results on August 11, yet up to four days later IEBC chief executive Ezra Chiloba could not produce the election results forms from which the outcome was computed.
When the forms were finally produced, many were riddled with anomalies that raised questions over whether they were the original documents, or forgeries generated later to validate a suspect outcome.
All this may have lent credence to Mr Odinga’s claims that the results that were being displayed on the IEBC portal and re-broadcast on television were not coming from the raw data uploaded directly by Returning Officers, but from an external source that was allowed to infiltrate the system.
The judges were severe in their indictment of the IEBC for its failure to fully comply with their order on granting access to its computer system server and provision of entry logs.
They noted that the scrutiny order was a golden opportunity for IEBC to disprove the petitioner’s claim on hacking and alternation of results. On the entry logs, it was found that IEBC provided copies of previously downloaded logs, which even it was unable to certify the source.
If it had nothing to hide, the judges said, IEBC should actually have offered that access without even waiting for a court order, but instead it contemptuously disobeyed the court.
The ruling noted some of the more interesting episodes during the hearing that may have appeared like sideshows, but may have influenced the decision.
One was on the question of the source of provisional results that from day one of vote counting were streamed on the IEBC website and broadcast nationally. Those were that numbers that Mr Odinga’s election agents at the National Tallying Centre at Bomas of Kenya had early on demanded be halted because the origin was not clear.
In court, IEBC lawyer Paul Nyamodi said that the numbers were not provisional results, but just ‘statistics’ that had no bearing on the final numbers announced.
Another was on the query why some official Forms 34A and 34B had serial numbers, IEBC watermark, barcode and other security features, while others did not.
Mr Muite had argued security features were not a legal requirement, but had been voluntarily employed by IEBC out of an ‘abundance of caution’.
They Court was left wondering why in that case, some of the document, if they came from the same printer working on specifications, were delivered without security features. Could they have been supplied locally from a River Road printer?
The court then dwelt on the principles governing election petitions, taking the view that while ordinary errors and omissions will not usually overturn results, in this case the irregularities and illegalities were so prevalent as to present the prospects of systematic electoral fraud that cannot be allowed to stand.
Probably having in mind raging public debate since the September 1 delivery of the verdict, judges dealt to some length on the responsibilities of the judiciary.
They concurred that the intention of the voter must remain sacred and cannot be annulled by a court.
However, they added, there are circumstances where even without specifically challenging the results announced, the transgressions leading to the outcome are so serious that numbers announced from dubious sources cannot be allowed to stand.
The discrepancies in this case were widespread enough to affect the integrity of the entire election and offend the principles laid out in constitution and the laws.
This was a case were irregularities and illegalities cited render the result as announced unverifiable
‘An election result out of corrupt practices, illegalities and irregularities cannot be taken as the sovereign will of the people’ the court concluded, as if responding to President Kenyatta’s complaints that the courts had stolen his electoral victory.