Supreme Court votes for democracy in Kenya election petition

The historic ruling by the Supreme Court of Kenya, which annulled the declaration of President Uhuru Kenyatta as the winner of the 2017 presidential election and ordered a fresh election, signifies the emergence of the Supreme Court as the guardian of democracy.

The court’s decision — by majority, not unanimous — means that Kenyans will now go back to the polls in 60 days to elect a president after the judges found that the Independent Electoral and Boundaries Commission failed and/or neglected to conduct the elections in accordance with the Constitution of Kenya and the Elections Act.

The court also found that the presidential elections had been so ridden with irregularities and illegalities as to the requirement for transmission of the electoral results from the polling stations.

As a result of these findings, the court declared that the elections and consequent declaration of Mr Kenyatta as having been re-elected invalid, null and void.

Two judges of the Supreme Court were in dissent. Justice Prof Jackton Ojwang’ and Justice Njoki Ndung’u disagreed that the election should have been invalidated.

The petition was filed on August 18 by opposition leaders Raila Odinga and Kalonzo Musyoka, who had run against President Kenyatta. They named the IEBC and its chairperson Mr Wafula Chebukati as first and second respondent, respectively, and President Kenyatta as the third respondent.

At the heart of the petition were claims that the IEBC and and/or its officials and agents had engaged in, or deliberately countenanced, illegalities and irregularities, which failed to meet the requirements of the Constitution and the electoral laws of Kenya. They, therefore, sought orders of the court to have the elections annulled and a new election to be conducted.

More specifically, Mr Odinga and Mr Kalonzo complained that the IEBC had failed to relay results as required by law. They claimed that the IEBC started transmitting supposed results of the elections after polling closed, contrary to the law.

Results transmission

An earlier ruling in the Court of Appeal had declared that the results of presidential elections should be handled in a specific way. It required that upon closure of the polls, the votes should be counted and declared publicly and the results filled into the legally required forms at the polling station (Form 34A).

The results thus declared, would be the final results and would not be amenable to change at any other level whatsoever, not even by the chairperson of the IEBC who in law is designated as the presiding officer for presidential elections. The presiding officer at the polling station was required to post a copy of the Form 34A at a publicly accessible point within the station.

Simultaneously with the posting of the Form 34A, the presiding officer was required to capture a scanned image of it and transmit the image to the IEBC National Tallying Centre in Nairobi as well as to the Constituency Returning Officer for the constituency in which the polling station is situated.

The constituency returning officer would, upon receipt of all the Forms 34A from all polling stations in the Constituency, collate the forms and compile them into an aggregate that would be laid out in a Constituency Tally Form known as Form 34B. An image of Form 34B was also required to be transmitted to the National Tallying Centre and followed by a delivery of the original to the tallying centre.

At the national centre, all the Forms 34B would be collated and the results relayed into a national aggregate into a Form 34C, which would then be used by the IEBC chair to declare the final result.

During the 2017 elections, Kenya had 40,883 polling stations (which translates to 40,883 Forms 34A), 290 elective constituencies. However, there were to be 292 Forms 34B.

The two extra Form 34Bs arose from the diaspora and prisoners’ votes, which were considered as additional constituencies for the purposes of the presidential elections. Prisoners and Kenyans in Uganda, Tanzania, Rwanda, Burundi and South Africa are eligible to vote for president. The 292 Forms 34B would then be reduced into a single Form 34C.

The essence of this decision was, therefore, that the results declared at the 40,883 polling stations would be final and that they would have to be reflected in the Forms 34B and finally into Form 34C for declaration of the result and without any authority for any changes to any of the forms declared at the polling stations.

Scanned images

This rigorous process sought to address the complaints in previous elections to the effect that presidential results were frequently changed at the national offices by IEBC officials under the premise that they were making adjustments to mistakes. The Court of Appeal, it may be said, locked this process with golden handcuffs from the polling stations.

Flowing from this was also the constitutional requirement that Kenya’s electoral system would be simple, verifiable, accurate, secure, transparent and accountable.

These constitutionally sanctioned requirements dictated that the results from the polling station be final (that is, they could not be changed) and that the results from the polling station had to be transmitted simultaneously with the images of the forms to eliminate opportunity for tampering.

This Court of Appeal decision was at the heart of the complaint by the petitioners. They claimed that the IEBC failed to send the images of the forms from the polling stations simultaneously with the results sent to the National Tallying Centre. That not only defied the Constitution, but was a systematically aimed at changing the forms.

In particular, the petitioners claimed that as of the time of declaration of the results on August 11, the IEBC had not received up to 10,000 of the Forms 34A. This meant, in the contention of the petitioners that the results were declared without verification as required by law and confirmed in the Maina Kiai judgement at the Court of Appeal.

Hacked system?

Another ground of the petition was that some of the forms displayed by the IEBC in its online results portal were forgeries. Examples given here were the fact that some appeared to have security features such as watermarks and serial numbers while others did not. This, they contended failed to meet the requirement for transparency.

In further attacking the reliability of the forms and information used to declare the results, the petitioners contended that there appeared to have been a statistically identical gap of 11 per cent between the Mr Odinga and President Kenyatta right from the initial broadcast of results from the polling stations until the declaration of the re-election of Mr Kenyatta made on August 11.

The petitioners adduced evidence by affidavit of a statistician who contended that this was an extremely unlikely scenario within the range of statistical possibilities.

Clothed in this was the allegation by the Petitioners that the IEBC’s results transmission system had been hacked and invaded by an algorithm to maintain a result irrespective of the results.

Use of State resources

A third contention that was canvassed was that Mr Kenyatta, as incumbent president, had allowed and or encouraged state officials such as Principal Secretaries to campaign for his re-election contrary to law.

They also claimed that the Executive had taken advantage of its incumbency to campaign using state funds under the pretext of informing the public about projects that the government had undertaken during the president’s first term.

The Constitution of Kenya requires that a petition challenging a declaration of an election for the Office of President should be filed within seven days of the date on which the declaration of the results is made. The Supreme Court is then required to hear and determine the petition within 15 days. This means that the court needed to hear the petition and hand down a judgement by September 1, 2017.

The petition was heard over two days, starting with a pre-trial conference on Saturday August 26. At the beginning of the case, the petitioners applied to the court to order the IEBC to deliver to the court all the Forms 34A and 34B for purposes of verification.

They also sought an order for access to the IEBC’s elections results transmission system. Understandably, the IEBC and its lawyers opposed this second application, contending that such access would be extremely risky and would reveal sensitive, classified information the petitioners were not entitled to receive.

This application would appear to have been the centre-piece of the petition and seems to be one of the golden nuggets of this dispute. On Monday (August 28, 2017), the Supreme Court granted the application and ordered the delivery of the forms to its custody for scrutiny.

More importantly, the court granted orders for “read only access” to the transmission system. In so doing, the court struck a huge blow in favour of the citizens’ right to information under the Constitution.

The decision on the application for access to information held by the IEBC may have been important for this case, but it is even more important beyond this case as a precedent for the upholding a citizen’s right to information held by a public body.

By this decision, it will no longer be an excuse for any public body to keep information secret and deprive citizens access, claiming that the information is classified. Such claims must be tested going forward.

Succinct message

Even when the IEBC appeared to have been vacillating and failing to provide the information on time, the court reiterated the order for obedience in firm tones that communicated the succinct message that the information may be within the custody of an appointed officer, but it ultimately belonged to the public.

The hearings over two days involved a right schedule between the petitioners to whom the court allocated five hours to argue their case. The IEBC and its chair got three hours and President Kenyatta’s legal team also got three hours. The Court also permitted the Attorney-General and the Law Society as friends of the court (amicus curiae) and accorded them 20 minutes each. The court also permitted the advocates of two other presidential contestants to make representations before it.

Departure from 2013

Even though this Petition of 2017 was the second one that the Supreme Court heard challenging the election of the President, there were some clear departures from the case of 2013. The first was that the court appeared more strident in managing time and the range of advocates’ submissions.

Secondly, the court was clearly less inclined to hear or sustain technical challenges by the parties. For example, the court allowed a number of documents to be admitted in the record by both parties even though they may have been filed out of the time specified in the Rules of the court. In so doing, the court indicated that the procedure must not be allowed to prevail over substantive justice.

The IEBC’s advocates were firm that the issues raised by the petitioners were administrative challenges and mere errors and did not ultimately affect the elections and efficacy of the results. They argued that the evidence adduced by the petitioners would not show that they affected the results in a way which would have turned the result around.

Lessons learnt

The petitioners contended that the constitutional requirements as affirmed by the Maina Kiai Court of Appeal decision was that the requirements of verifiability and transparency are not in vain but are imperative requirements for a free and fair election. There inclusion in the Constitution was not for the mere reason that some draftsman had too much ink and paper.

On September 1, 2017, the petitioners’ arguments appear to have prevailed: The court found that the irregularities and illegalities so tainted the 2017 elections that the results flowing therefrom were invalid and a fresh election needed to be held.

Even though the Supreme Court will give its full judgement and reasons for its decision within 21 days, the essence of this decision is not merely the historical one that this is the first petition against a presidential election to succeed. Neither is the fact that this is one of the rare instances, not only in Kenya, but the whole world where a petition has succeeded against an incumbent president.

The real lesson from this is that the Supreme Court has emerged as the guardian of democracy by asserting its independence against the Executive and declaring boldly that it is also an arm of government and of no less stature than the Executive and the Legislature.

Equally important is that the court sent word to the country that it is not an institution to be taken for granted but can be counted upon to uphold the rights of the people irrespective of their position within the spectrum of power.