Dissenting judges Jackton Ojwang and Njoki Ndung’u yesterday held that the Supreme Court should have taken into consideration the sovereign will of the people to elect their leaders before nullifying President Uhuru Kenyatta’s win in the August 8 General Election.
In his dissenting ruling, Justice Ojwang noted that the petitioners, Ntional Super Alliance (Nasa)’s presidential candidate Raila Odinga and his running mate Kalonzo Musyoka, mainly relied on transmission of results as opposed to the physical issue of voting, casting of ballots and counting to challenge the outcome.
He disagreed with the majority judges’ position that an election is not an event but a process, saying what was paramount was whether or not people freely exercised their will at the ballot.
According to Justice Ojwang, Raila made broad and vague claims with regard to transmission of results which the court, as the trustee of the people’s sovereign power, should not have relied upon to void Uhuru’s win. In his view, a numerical assessment was required since it’s the foundation for any election.
Earlier, Chief Justice David Maraga and Deputy Chief Justice Philomena Mwilu had held that elections are not just about numbers but involve processes that must be credible.
“IEBC’s contumacious disobedience of this order in critical areas leaves us with no option but to accept the petitioner’s claims that the IEBC IT system was infiltrated and the data therein interfered with or IEBC officials interfered with the data or simply refused to accept that it had bungled the whole transmission system and was unable to verify the data,” she said.
On her part, Lady Justice Ndung’u noted that the election was conducted in accordance with the Court of Appeal ruling in the Maina Kiai case that results declared at the constituency level were final and not subject to alteration at the National Tallying Centre.
She added that the Kiai decision was made after the poll body had already set up the Kenya Integrated Elections Management System (Kiems) but, nevertheless, it worked to comply with it.
In her finding, she said the Supreme Court should have ordered for a recount of the votes cast instead of ordering for a fresh election, since the ballots, which are the primary election materials, are still secure and not subject to manipulation.
Lady Justice Ndung’u said the electronic results transmission was only but a complement of manual results transmission. She noted that the Constitution and the law provides for party agents, the media and observers to be present at the polling station and constituency tallying centres to verify results. In addition, the judge noted that observers, who are obliged by international instrument to be neutral, gave the election a clean bill of health. -PD