An election is a process, not an event.’ This was the bold rationale provided by Chief Justice David Maraga in his brief remarks, after announcing that Kenya’s Supreme Court had nullified the August 8th Presidential election results, by a 4-2 vote margin. The majority judges, led by the Chief Justice himself, presented their decision in a brief publication entitled, “Determination of Petition Without Reasons”, explaining that substantial ‘irregularities and illegalities in transmission of results’ had affected the integrity of the Presidential election results. This nullification decision was immediately praised by many as a major step towards upholding the rule of law and restoring confidence in the Kenyan judicial system. However, there are reasons to question this narrative, as it is now apparentthat the decision by the majority judges was flawed, particularly because of its disregard of previously established precedence.
Under the scope: a brief critique of the ruling’s fundamental problems
Upon closer scrutiny, and with the passage of time, several problems have ensued from this Supreme Court ruling. Firstly, by declaring that the Presidential election was critically compromised, this ruling put into question the credibility of the entire August 8th election, which included five more electoral tiers below the Presidential level. This was a recipe for judicial chaos, and as expected, multiple petitions were triggered, including some seeking to nullify the entire August 8th election. Over 300 petitions were swiftly filed in lower courts, even though international observers had concluded that the elections had been peaceful, free, and fair, and that counting and tallying were also conducted transparently in the presence of party agents, and no disputes or objections were raised during the process. Secondly, it is now apparent that the majority judges had not performed the expected due diligence during their examination of the evidence. There is mounting evidence that the majority judges relied on highly questionable, if not out rightly fraudulent election documents that were illegally altered, unsigned, etc. Indeed, an early warning was provided by one of the dissenting judges, Judge Njoki Ndung’u, who examined the election documents purported to contain errors, and found that majority had complied with the election procedures and requirements, with only minor errors in a few. Thirdly, the detailed opinion by the majority judges vacated all previous precedence set by the same court and other courts in the Commonwealth, on the threshold of evidence required to nullify an election. These courts had set a clear standard ‒ that petitioners must demonstrate how any errors or irregularities cited in an election petition eroded the margin of victory as announced by the electoral commission. Notwithstanding such clear guidelines, the majority judges did not demonstrate how any purported errors in the transmission of results or in election forms could have eroded the 1.4 million vote margin of victory, which represented over 10% of the total votes cast in the August 8th Presidential election.
Judicial activism: a ticking time bomb
The final, and perhaps the most troubling of the four fundamental problems identified here, was the failure to fall back on manual verification of the results by a vote recount, even though it was within the powers of the Supreme Court to do so. After the elections, all the ballots cast in over 40,000 polling stations had been collected and stored securely for future manual verification of individual results, if the transmitted results were in doubt. The failure of the majority judges to exercise this basic option has been heavily criticized, and it implicates the majority judges in a determined scheme to have the election nullified, at any cost. Their refusal to order a manual vote recount also implies that the majority judges have shifted to an entirely qualitative judicial philosophy in the resolution of electoral disputes, in defiance of the previously well-established quantitative approach. If, this philosophical shift supplants the previous approach fully, its impact will be revolutionary in the long run. As we have seen in this case, ‘process’ issues can be relied on solely to nullify a Presidential election, without setting any thresholds or showing how these issues affected the final numerical results. An enormous sense of ambiguity and apprehension has emanated from this ruling, and is now overshadowing the upcoming repeat election, forcing the chairman of the electoral commission to file an application at the Supreme Court to reasserting his role, and to clarify the process that must be followed to conduct the repeat election, given that the Supreme Court ruling contradicted election laws passed by parliament. This ruling will continue to have serious implications and ramifications on future elections in Kenya, and needs to be urgently reviewed.
Article by John Mwenda Rutere & Grace W. Muriakiara
Opinions expressed in this article do not reflect those of Africa faith & Justice Network, but those of the authors. We strive to provide all sides to every story.