Fresh nomination was not required for the purposes of the Repeat Presidential election held on October 26, 2017
John Harun Mwau and 2 others v Independent Electoral and Boundaries Commission & 4 others  eKLR
Petitions Nos. 2 And 4 Of 2017
(As Consolidated November 14, 2017)
Supreme Court of Kenya
D Maraga, CJ; P Mwilu, DCJ; J B Ojwang, S C Wanjala, S N Ndung’u & I Lenaola, ScJJ
December 11, 2017
Reported By Long’et Terer & Njeri Githang’a
Electoral law – presidential election –repeat presidential election-validity of a presidential election-petition challenging the validity of the president elect after a repeat election-allegations of non-compliance with the Constitution and electoral laws- allegations of various irregularities and illegalities during the conduct of the elections –what were the principles of free and fair elections -whether the Presidential Election was conducted in accordance with the principles laid down in the Constitution of Kenya, 2010 and the written laws relating to elections- whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election and if in the affirmative, what was their impact, if any, on the integrity of the election- Constitution of Kenya, 2010, articles 81, 86,138
Electoral Law-presidential elections-withdrawal of a presidential candidate-withdrawal before a repeat election-manner in which such withdraw should be made-what was the legal effect of the withdrawal of a Presidential election candidate before election- in determining the legal effect of withdrawal by a candidate before an election, what guidance was to be drawn from the pronouncements of the Supreme Court in Raila 2013- Elections (General) Regulations, 2017 Regulation 52
Electoral law-presidential elections-conduct of presidential elections- constitutional threshold of a free and fair election -whether the election conducted on 26th October, 2017 met the constitutional threshold of a free and fair election under article 81 of the Constitution-what are the legal consequences of not holding a Presidential election in each constituency under article 138(2) of the Constitution-whether the election held on 26th October, 2017 and its results, was legitimate and credible, both in fact and in law- Constitution of Kenya, 2010 articles 81and 138(2)
Statutes-amendment of statutes-retrospective application of statutes-what was the effect of the Election Laws (Amendment) Act, 2017 on the conduct of the Presidential election held on October 26, 2017-was section 83 of the Elections Act (as amended) unconstitutional- Elections Act, section 83 (as amended)
Electoral law-presidential election-electoral process-repeat presidential election-nomination of candidates- what was the purpose of nominations in a presidential election-whether there was need to conduct fresh nominations of candidates in preparation for the repeat presidential election -what was the place of the Raila 2013 decision, and the Ekuru Aukot Judgment, in the conduct of the fresh election
Jurisdiction-jurisdiction of the Supreme Court-exclusive original jurisdiction of the Supreme Court-jurisdiction to determine matters pertaining to a presidential election- whether the Supreme Court could determine an issue touching on the constitutionality of any law integral to the determination of a cause before it, although pending before another Court- whether the Court would, notwithstanding the fact that a matter is pending on appeal, proceed to determine the issue-Constitution of Kenya 2010, articles 140(3) & 163(3).
Legal Precedent-stare decisis -binding (ratio decidendi) and persuasive precedents (obiter dicta)-nature of observations in a judgment which are not an issue raised or pleaded by the parties to the dispute in question-whether the Courts are bound by such observations-extent to which such observations would be of persuasive value-whether the observations in Raila 2013 were of binding authority- whether it was necessary for the Court to make a clarification of the meaning of the said paragraphs, in view of the contradictory interpretations attendant upon them.
Electoral Law-principles of elections-legitimacy and credibility of elections-the meaning and applicability of the term ‘legitimacy’ and ‘credibility’, in the general context of a Presidential election-whether the election conducted on 26th October, 2017 lacked legitimacy and credibility
Statutes-constitutionality of statutes-constitutionality of section 83 of the Elections Act as amended- where the section had two limbs - compliance with the law on elections, and irregularities that may affect the result of the election- where the amendment made the two limbs in the provision disjunctive-whether the section as amended was unconstitutional-Elections Act, section 83
On August 8, 2017 Kenya held its second general election under the Constitution of Kenya, 2010 and the Hon. Uhuru Muigai Kenyatta, the 3rd Respondent, was declared the winner of the Presidential election. The Hon. Raila Amolo Odinga and the Hon. Stephen Kalonzo Musyoka, who had contested as Presidential and Deputy-Presidential candidates respectively, challenged the election, in Raila Amolo Odinga & Another v. The Independent Electoral and Boundaries Commission & 2 Others, Presidential Election Petition No. 1 of 2017, (Raila 2017). In a decision rendered on September 1, 2017, with reasons reserved and delivered on September 20, 2017, the Supreme Court, by a majority of four-to-two, nullified that election and, pursuant to article 140(3) of the Constitution, directed the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh Presidential election within 60 days.
Through a Gazette notice dated September 5, 2017, the IEBC and its Chairman directed that only Jubilee Party and Orange Democratic Movement would participate in the fresh presidential elections. Ekuru Aukot, a presidential candidate for Thirdway Alliance Party in the August 8, 2017 general elections filed a petition in the High Court stating that under articles 27, 38, and 140(3) of the Constitution, as a candidate who participated in the August 8, 2017 elections, he had a right to participate in the fresh presidential elections slated for October 26, 2017. The High Court in the Judgment in Ekuru Aukot directed the inclusion of Dr. Aukot as an additional Presidential candidate. Following the decision, the IEBC through a Gazette Notice included all the presidential candidates who had participated in the August 8, election.
In the meantime, a day before the Judgment in Ekuru Aukot was delivered, The Hon. Raila Amolo Odinga and the Hon. Stephen Kalonzo Musyoka, who were contesting as Presidential and Deputy-Presidential candidates respectively, withdrew from the elections and urged their supporters to boycott the election. The IEBC conducted a fresh Presidential election on October 26, 2017 with all the eight Presidential Candidates on the ballot. However, elections in 25 Constituencies were postponed due to serious breaches of the peace in those constituencies. Even on the specially-designated Election Day, elections could not be held in the said areas, due to violence; and the 1st Respondent called off the repeat elections. Consequently, on October 30, 2017 upon the tallying and verification of results being complete the Chairperson of IEBC declared the 3rd Respondent as the winner, having garnered 7,483,895 out of the 7,616,217 valid votes cast despite the electorate in the 25 Constituencies not having voted.
Two petitions were filed challenging that election: Petition No. 2 of 2017 by Mr. John Harun Mwau (hereinafter, 1st Petitioner) and Petition No. 4 of 2017 by Mr. Njonjo Mue together with Mr. Khelef Khalifa (hereinafter, 2nd and 3rd Petitioners). Those two petitions were consolidated, with petition 2 of 2017 being the lead file.
Petition No. 2 of 2017 was based mainly on one legal issue: that the 1st and 2nd Respondents failed to conduct fresh nominations for the election of 26th October, 2017, thus rendering the election null and void. Petition No. 4 of 2017 on the other hand raised the following grounds:
(i) The 2nd Respondent did not conduct any nominations of presidential candidates in accordance with the Constitution and the Law: the 3rd Respondent was [thus] not validly, procedurally and/or lawfully nominated as a presidential candidate.
(ii) The election conducted by the 1st and 2nd Respondents on October 26, 2017 failed to meet the general principles stipulated under article 81(d) of the Constitution of Kenya: of universal suffrage based on the aspiration for fair representation and equality of vote. And it failed to meet the general principles stipulated under Article 81(e) of the Constitution of Kenya of a free and fair election, which were;
(a) The election was not free from violence, intimidation, improper influence or corruption;
(b) The fresh election was not conducted by an independent body;
(c) The fresh election was not transparent; and
(d) The fresh election was not administered in an impartial, neutral, efficient, accurate and accountable manner.
(iv) The fresh election was further marred by illegalities and irregularities; and
(v) Given the prevailing conditions and circumstances, the 1st and 2nd Respondents could not and should not have proceeded with the conduct of the fresh election on 26th October, 2017.
On the basis of the foregoing averments and allegations, the Petitioners sought various reliefs including the declaration that the election of the President-elect in the fresh Presidential election held on October 26, 2017 pursuant to article 140 (3) of the Constitution was invalid.
Before the October 26 elections, Parliament passed the Election Laws (Amendment) Act 2017 on October 12, 2017 and submitted to the President for assent on October 13, 2017. The President having not assented to the subject Bill by 27th October, 2017 (the 14th day), by operation of law (Article 115(6) of the Constitution) it was deemed assented to on that date. It was then published in the Gazette on 2nd November, 2017.
(i) What was the locus standi of the Petitioners? Were their causes being pursued in the public interest?
(ii) Whether the Presidential election was conducted in conformity with the Constitution and the applicable laws.
a. Whether the election met the constitutional threshold of a free and fair election under article 81 of the Constitution?
b. Was the Presidential election held on October 26, 2017 marred with illegalities and irregularities? if so, what were their effects on the validity of the election?
(iii) What was the legal effect of the withdrawal of a Presidential election candidate before a repeat election?
(iv) In determining the legal effect of withdrawal by a candidate before an election, what guidance was to be drawn from the pronouncements of the Supreme Court in Raila 2013?
a. Whether the pronouncement on withdrawal of a presidential candidate in the Raila 2013, were of binding authority.
b. Whether the Court could, notwithstanding the fact that the matter was pending on appeal, proceed to determine the issue.
c. Whether it was necessary for the Court to make a clarification of the meaning of the said paragraphs, in view of the contradictory interpretations attendant upon them.
(v) What were the legal consequences of not holding a Presidential election in each constituency under article 138(2) of the Constitution?
(vi) What was the effect of the Election Laws (Amendment) Act, 2017 on the conduct of the Presidential election held on October 26, 2017?
(vii) Was section 83 of the Elections Act (as amended) unconstitutional?
(viii) Whether fresh nominations ought to have been conducted following the annulment of the presidential election held on August 8, 2017 and before holding the repeat elections.
a. What was the purpose of nominations in a Presidential election?
b. What was the place of the Raila 2013 decision, and the Ekuru Aukot Judgment, in the conduct of the fresh election?
(ix) What is the meaning and applicability of the term ‘legitimacy’ and ‘credibility’, in the general context of a Presidential election?
(x) Whether the Supreme Court could determine an issue touching on the constitutionality of any law integral to the determination of a cause before it, although pending before another Court.
Relevant Provisions of the Law
Elections Act, Section 14
Section 14 provides the manner in which a Presidential election is initiated, in the following terms:
“(1) Whenever a presidential election is to be held, the Commission shall publish a notice of the holding of the election in the Gazette and in electronic and print media of national circulation—
(a) in the case of a general election, at least sixty days before the date of the election; or
(b) in the case of an election under Article 138(5) of the Constitution, at least twenty-one days before the date of the election;
(c) in any other case, upon the office of the President becoming vacant.
“(2) The notice referred to in subsection (1) shall be in the prescribed form and shall specify—
(a) the nomination day for the presidential election; and
(b) the day or days on which the poll shall be taken for the presidential election, which shall not be less than twenty-one days after the day specified for nomination.”
Rule 8 of the Supreme Court (Presidential Election Petition) Rules, 2017 as follows:
(i) the validity of the conduct of a presidential election;
(ii) the validity of the qualification of a President-elect;
(iii) the commission of an election offence as provided under the Election Offences Act (No. 37 of 2016);
(iv) the validity of the nomination of a Presidential candidate or
(v) any other ground that the Court deems sufficient, provided such ground shall not be frivolous, vexatious or scandalous.
Regulation 52 of the Elections (General) Regulations, 2017 which provides that:
“(1) A candidate who has been nominated may withdraw his or her candidature by delivering to the respective returning officer a notice to that effect in Form 24A not later than three days after nomination.
“(2) Where there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected in accordance with regulation 53.”
Constitution of Kenya 2010
The right to vote is enshrined in article 38 of the Constitution, which provides that:
“(3) Every adult citizen has the right, without unreasonable restrictions??
a) to be registered as a voter;
b) to vote by secret ballot in any election or referendum; and,
c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office”
Article 83 of the Constitution
Article 83 of the Constitution which outlines the prerequisites of voter registration, in the following terms:
“(1) A person qualifies for registration as a voter at elections or referenda if the person –
(a) is an adult citizen;
(b) is not declared to be of unsound mind; and
(c) has not been convicted of an election offence during the preceding five years.
“(2) A citizen who qualifies for registration as a voter shall be registered at only one registration centre.
“(3) Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.”
“ Audit of the register of votes
“(1) The Commission may, at least six months before a general election, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of –
(a) verifying the accuracy of the Register;
(b) recommending mechanisms of enhancing the accuracy of the Register; and
(c) updating the register.
“(3) For purposes of the first general election after the commencement of this section, the Commission shall, within thirty days of the commencement of section, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of –
(a) verifying the accuracy of the Register;
(b) recommending mechanisms of enhancing the accuracy of the Register; and
(c) updating the register.
“(4) The firm engaged under subsection (3) shall conduct the audit and report to the Commission within a period of thirty days from the date of engagement.
“(5) The Commission shall, within fourteen days of receipt of the report under subsection (4), submit the report to the National Assembly and the Senate.
“(6) The Commission shall implement the recommendations of the audit report within a period of thirty days of receipt of the report and submit its report to the National Assembly and the Senate”
Elections Act, 2011
“(1) An adult citizen shall exercise the right to vote specified in Article 38(3) of the Constitution in accordance with this Act.
“(2) A citizen shall exercise the right to vote if the citizen is registered in the Register of Voters.”
“(1) The Commission shall maintain an updated Register of Voters.
“(2) For purposes of maintaining an updated register of voters, the Commission shall?
(a) regularly revise the Register of Voters;
(b) update the Register of Voters by deleting the names of deceased voters and rectifying the particulars therein;
(c) conduct a fresh voter registration, if necessary, at intervals of not less than eight years, and not more than twelve years, immediately after the Commission reviews the names and boundaries of the constituencies in accordance with Article 89(2) of the Constitution;
d) review the number, names and boundaries of wards whenever a review of the names and boundaries of counties necessitates a review; and
(e) revise the Register of Voters whenever county boundaries are altered in accordance with Article 94(3) of the Constitution.”
“(1) The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where??
(a) there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;
(b) it is impossible to conduct the elections as a result of a natural disaster or other emergencies,
(c) that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.
“(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.
“(3) Notwithstanding the provisions of this section, the Commission may, if satisfied that the result of the elections will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made”
Elections Act Section 83 (as amended) provides:
83. (1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that –
(a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
(b) the non-compliance did not substantially affect the result of the election.
(2) Pursuant to section 12 of the Interpretation and General Provisions Act, a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.
Elections (General) Regulations, 2012
Regulation 87 of the Elections (General) Regulations, 2012 in the following terms:
“(3) Upon receipt of Form 34A from the constituency returning officers under sub-regulation (1), the Chairperson of the Commission shall??
(a) verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre;
(b) tally and complete Form 34C;
(c) announce the results for each of the presidential candidates for each County;
(d) sign and date the forms and make available a copy to any candidate or the national chief agent present;
(e) publicly declare the results of the election of the president in a accordance with Articles 138(4) and 138(10) of the Constitution;
(f) issue a certificate to the person elected president in Form 34D set out in the Schedule; and
(g) deliver a written notification of the results to the Chief Justice and the incumbent president within seven days of the declaration;
Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner on the basis of Article 138(4)(a) (b) of the Constitution…”
Raila Amolo Odinga 2013
The operative paragraphs are 289- 290 where the Court thus stated:
“289. It is clear that a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.
“290. Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(8) (b) would become applicable, with fresh nominations ensuing.”
Republic v. Independent Electoral and Boundaries Commission Ex Parte Khelef Khalifa & Another, Judicial Review Misc. Application No. 628 of 2017 (formerly Mombasa JR 58 of 2017  eKLR), and the Court held [paragraph 114] that:
114 “Having considered the issues raised herein and pursuant to Section 11 of the Fair Administrative Action Act, 2015, these are my findings:
(1) The Respondent was under a constitutional and statutory obligation pursuant to Regulation 3(2) of the Elections (General) Regulations, 2012 to provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.
(2) The Respondent did not provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.
(3) In so doing the Respondent violated Regulation 3(2) of the said Regulations as read with Articles 38 and 81 of the Constitution.
(4) Since there is no prayer seeking either the cancellation of the fresh elections due for 26th October, 2017 or their postponement, it would not be efficacious to grant the orders herein in the manner sought.
115. Therefore without sanitizing the said process, I decline to issue the reliefs sought herein in the exercise of my discretion not based on lack of merit, but on public interest.”
1. The Court’s jurisdiction to hear and determine a Presidential election petition was provided for under article 140 (1) of the Constitution, which provided that “A person may file a petition in the supreme Court to challenge the election of the president-elect ….” Article 260 of the Constitution defined a person to include a “company, association or other body of persons whether incorporated or unincorporated.” Guided by the terms of articles 140 and 260, “a person” under article 140 of the Constitution, included both a natural and a juristic person. There was no requirement for participation in an election, under article 140. The 3rd Respondent did not, effectively affirm his submission to the effect that article 140 (1) bestowed locus standi only upon persons who had exercised their rights to vote under article 38. Therefore, the Petitioners had the legal standing under article 140 (1), to file the Petition.
2. The subject-matter of the petitions before the Court met the criteria to be characterized as being in the category of public-interest litigation. Public-interest litigation is a public right, enshrined in articles 22 (1) (c) and 258 (2) (c) of the Constitution. It is a veritable vehicle for the vindication of public rights, such as extend beyond the constraints of the common law doctrine of locus standi.
3. The general guiding principle in public interest litigation should always be that, the suit must be brought in the broad public interest. It should not be a veil for private, commercial, partisan or other non-public interests. The detailed contours of the applicable law will continue to unfold, through the works of the superior Courts. The proliferation of issues raised in the matter were symbolic of parties aggrieved, and were presenting a real cause for judicial resolution.
4. The nomination process was deeply rooted in the Constitution, which recognized that an electoral contest must be preceded by the nomination of candidates to vie for elective positions. Article 137 specified the qualifications and disqualifications of a Presidential candidate.
5. Article 138(8)(a) also underscored the centrality of nomination, by decreeing that a Presidential election should be cancelled if no person had been nominated as a candidate before the expiry of the period set for the delivery of nomination papers. Nominations, therefore, was not just a formality, or an exercise in futility, nor could it be dispensed with, save for lawful cause. Besides, not everyone qualified to be nominated as a contestant, as that could be deduced from the phraseology of article 137(1) and 137(2) of the Constitution, which respectively, thus signaled: a person qualifies for nomination…”; and ‘a person is not qualified for nomination…’. The Constitution thus provided the yardstick within which the nomination exercise was to be conducted, and it was only where a person met the threshold set under article 137, that such a person would have been duly nominated. Article 138 went further to signal the process set in motion, upon the conclusion of a nomination exercise.
6. Nomination is a process through which candidates are identified for participation in an election, subject to them being properly qualified under the law, for the elective seat that they seek. It is a critical component of an electoral process, without which there would be no election.
7. The Constitution of Kenya, 2010 contemplated various instances in which a Presidential election could be held as follows:
(i) at a General Election pursuant to article 136(2)(a) of the Constitution;
(ii) whenever a vacancy occurs in the office of the President, as provided for under article 146 of the Constitution;
(iii) an election conducted pursuant to article 138(5) of the Constitution, where no Presidential candidate attains the constitutional threshold necessary before being declared elected to have been elected;
(iv) where a President-elect dies before assuming office as provided for under Article 139 of the Constitution;
(v) Where the Supreme Court determines the election of the President-elect to be invalid, pursuant to article 140(3) of the Constitution.
All such elections were unique, and took place under different circumstances. As such, it is essential that they be appraised separately, and perceived in their distinctive contexts.
8. Though the use of the phrase ‘whenever a presidential election is to be held’ under section 14 of the Elections Act signaled a wide scope of application, the substantive provision, nonetheless, confined the application of section 14 to just three kinds of Presidential election, these being: a general election; an election conducted under article 138(5); and, whenever a vacancy occurs. In all those instances, the nomination process was identified as an imperative step, before the conduct of any such election. The only Presidential election not specifically mentioned therein, is a fresh election conducted pursuant to article 140(3) of the Constitution. The failure to recognize the need for nomination in an election under article 140(3), was not out of oversight, or inattention, on the part of the drafters of the Constitution, but arose from a proper appreciation of the law.
9. Though section 14 of the Elections Act required nominations to be conducted for an election under article 138(5), the Constitution itself restricted the candidates who may participate in such an election, to only the candidate, or candidates with the greatest number of votes, and the candidate, or candidates, with the second greatest number of votes. Consequently, nominations would be pointless, as the Constitution itself established with specificity who the participating candidates should be.
10. An election held under article 138(5) of the Constitution was not a stand-alone election, but rather, one anchored on an ‘initial’ election that had been conducted and where no candidate met the constitutional threshold, for being declared elected. Similarly, a fresh election conducted pursuant to article 140(3) was anchored upon the nullification of a Presidential election, which could have been part of a general election; an election upon a vacancy occurring in the office of the President; or an election held under article 138(5) of the Constitution. It was therefore not a stand-alone election, devoid of a historical foundation.
11. The election held on October 26, 2017 was the outlaw of the nullification of the Presidential election held on August 8, 2017. The election of August 8, 2017 was itself a General Election, which is held every second Tuesday in August of every fifth year. It was also the second national election held under the Constitution of Kenya, 2010. An objective appreciation of the fresh Presidential election held on October 26, 2017 could only be achieved if it was seen in context, rather than in isolation from the General Election of August 8, 2017 and the processes leading to that earlier election.
12. Article 140 conferred upon the Supreme Court jurisdiction to determine the validity of a Presidential election, upon a contest hinged on any of the grounds provided for under Rule 8 of the Supreme Court (Presidential Election Petition) Rules, 2017. The election petition in Raila 2017 revolved around the question of results transmission, irregularities, and illegalities touching on the conduct of the election held on August 8, 2017. Upon making that finding, the Court directed the IEBC to conduct a fresh election in strict conformity with the Constitution and the applicable election laws. The nomination exercise that had taken place prior to the election, was not the subject of any contest, and so it remained valid¾and therefore, was a proper basis for the conduct of the fresh Presidential election of October 26, 2017. It emerged from that analysis that, a fresh election under article 140(3) was not a disjointed phenomenon, but one lodged within the motions of the previous electoral contest.
13. The fresh election held on October 26, 2017 only happened because the August 8, 2017 election, in view of the Raila 2017 decision, did not culminate in its logical conclusion, that of determining who the winner was. The purpose of the October 26, 2017 election, therefore, was to conclude a 5-year electoral cycle, which would have ordinarily ended on August 8, 2017, and to initiate another electoral cycle of 5 years, ending on the second Tuesday in August, of the next fifth year. From that timing scenario, it would not, be logical that a person who was not a Presidential candidate for the election held on August 8, 2017 be a contestant in a repeat election, and subject candidates to a fresh nomination¾when the issue arose neither in the petition challenging that election, nor in the final Orders of the Court. The above position may be perceived alongside the possible scenario of an election held pursuant to article 139 (in case of death of a President-elect, before assuming office), or one under article 146 (where a vacancy arises in the office of the President, and the Deputy-President’s office is vacant, or the Deputy-President is unable to assume office). In those two scenarios, a nomination process was but a logical contemplation, of the law, as there would be no other way of identifying a candidate.
14. In the appraisal of the law relating to the nomination of candidates for Presidential election, the purposive standpoint, predicated on the Constitution’s intent of assuring unbroken governance process was preffered. The nominations for Presidential-election candidates which took place on May 28 & 29, 2017, remained valid and no other nomination was required for the purposes of the fresh Presidential election held on October 26, 2017. All the Presidential candidates in the election held on October 26, 2017, were validly nominated, and it was proper for the 2nd Respondent to include them in the ballot papers as Presidential candidates.
15. There was no fault in the IEBC decision to include Mr. Jirongo in the ballot because the initial decision to exclude him was based on the fact that the High Court had on October 4, 2017, in H.C. Insolvency Cause No.3 of 2017, adjudged him to be bankrupt, thus automatically disqualifying him, by dint of article 137 of the Constitution as read with article 99 thereof, from being a Presidential candidate. However, although the said decision should have settled the matter, on October 23, 2017, the High Court stayed the Bankruptcy Order. By virtue of that stay Order, Mr. Jirongo became effectively qualified to contest in a Presidential election, and hence the IEBC decision to include him on the ballot, through Gazette Notice No. 10562 Vol. CXIX No. 160.
16. The 1st Respondent urged that it fully relied on the Raila 2013 decision, in deciding to have only two Presidential candidates in the fresh election, being the successful Petitioner and the President-elect in the invalidated election. It was clear that the decision in Raila 2013 had limited the number of candidates who would participate in a fresh Presidential election, in the context in which the issue was raised in that petition.
17. While the High Court in the Judgment in Ekuru Aukot had directed the inclusion of Dr. Aukot as an additional Presidential candidate, but without mentioning the status of the other potential candidates, the Court’s reasoning in paragraph 73 had contemplated the availability of an opportunity for every other person who had been a Presidential candidate in the elections of August 8, 2017, to participate in the fresh election.
18. There was no fault with the 1st and 2nd Respondents’ decision not to conduct fresh nominations and the inclusion of all the August 8, 2017 candidates on the ballot paper; it was a decision fully in keeping with Raila 2013, and later, the Ekuru Aukot decision: that position was binding on them at the time.
19. In making some of the pronouncements it made in Raila 2013, the Supreme Court was responding to hypothetical questions that had been expressed before it by the Attorney- General, in his capacity as amicus curiae. The questions were not essential for the determination of the two petitions before the Court; and the answers to them could not, therefore, constitute the ratio decidendi of Raila 2013. To that extent, therefore, the pronouncements in those and other related paragraphs, were orbiter dicta, and thus, not binding on other Courts. The High Court in Ekuru Aukot, was not, therefore, to be faulted for having characterized the said statements as such.
20. The matter before the Supreme Court was no ordinary matter, resolution to which could await the appellate process. The petitions before the Court could stand or fall, on the basis of how the Supreme Court would determine the twin issues of withdrawal of candidature, and nominations. As the Supreme Court, in the instance, was exercising its original and exclusive jurisdiction under article 140 of the Constitution, an abnegation of its task was not tenable; and the responsibility devolved to it to resolve the relevant questions, without reservation. The Court’s task was to determine the Presidential election petition.
21. Having declared paragraphs 286-290 of the Raila 2013 decision obiter dicta, there would be no need to clarify their meaning, since they were of no binding effect. They were of no precedential value. However, though obiter, those pronouncements held special stature, emanating as they did from the apex Court.
22. It was proper, in the circumstances, to consider the content of paragraphs 289 and 290 of the Raila 2013 decision, as the suppositions had a live face before the Court. Paragraph 289 thus read: “It was clear that a fresh election under article 140 (3) was triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election.” the foregoing statement represented the correct legal position. But the paragraph also read: “In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.” The foregoing statement was only correct to the extent that it referred to the nullification of an election of the President-elect, where the issue of “nomination of candidates” was not the basis for the nullification of the election. In the petitions before the Court, the nomination of candidates was not the basis for the nullification of the election of August 8, 2017. But if an election was nullified on the basis of flawed nominations, it was clear that the ensuing fresh election could not be conducted on the basis of the same flawed nominations. Fresh nominations would, in the circumstances, have to be conducted.
23. Paragraph 290 of the Raila 2013 decision, which appeared more conjectural in its cast, read:
“Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (8) (b) would become applicable, with fresh nominations ensuing.” Had the foregoing pronouncement not been made obiter; had it been a ratio, it would have been made per incuriam, since article 138 (8) (b) of the Constitution only contemplated three scenarios of a cancellation of an election, namely:
a) where no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations;
b) where a candidate for election as President, or Deputy-President, dies on or before the scheduled election date; or
c) a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President.
Withdrawal of a candidate from the electoral contest was clearly not one of the scenarios contemplated by the Constitution, as a basis for the cancellation of an election. In the circumstances, the Court had to depart from the decision in question.
24. Neither the Constitution nor the Elections Act made provision for the withdrawal of a candidate from an election. The procedure for withdrawal of candidature was instead provided for under Regulation 52 of the Elections (General) Regulations, 2017. A Presidential candidate who intended to withdraw could only do so within three days of the nominations by filling Form 24A, and submitting the same to the Returning Officer, the 2nd Respondent. Regulation 52 provided for withdrawal of a candidate within three days of the nominations. The said Regulation was, thus, not applicable to the situation herein. The nominations had long been conducted before the scheduled fresh election. That however did not mean that after the expiry of the three-day period, no candidate could withdraw from an election. One could not be forced to participate in an election, in which he or she had lost interest. The NASA candidate not only made a public announcement of his decision to withdraw from the elections, but addressed a formal letter to that effect, to the 1st Respondent. Such actions, constituted a substantive and legally-effective withdrawal from the elections.
25. The withdrawal of the NASA Presidential candidate from the October 26, 2017 fresh Presidential election could not, in law, have occasioned the cancellation of the elections. The retention of the name of the withdrawn candidate on the ballot could not vitiate the election given that a candidate had the liberty to withdraw from the electoral contest even one or two days before the elections, when it would be quite impossible to remove his or her name from the ballot.
26. Article 38 of the Constitution carried various dimensions of political rights. For purposes of the issue at hand, the relevant parts of the article were Clauses (2) and (3) the right to free, fair and regular elections based on universal suffrage and the right to vote by secret ballot. As to who should guarantee the right to vote, article 21(1) of the Constitution required the State and State Organs to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. The Constitution and statute law charged the IEBC, a State Organ established under article 88 of the Constitution, with the responsibility of safeguarding and guaranteeing the enjoyment of the political rights of the Kenyan people.
27. It was not left to the State and State organs to guarantee the right to vote. The obligation equally bound the voters themselves. On the basis of the evidence adduced, the violent demonstrations, actively orchestrated by certain political actors, prevented the conduct of the fresh Presidential election, threatened the lives of election officials, voters, electoral infrastructure and private property in certain parts of the country. Neither the State nor IEBC or any other State Organ failed to fulfil its duty to respect and guarantee the right to vote. To the contrary, the evidence adduced indicated that the State (particularly the Police and the Ministry of Interior and Co-ordination of National Government) took preventative action to safeguard the safety of election officials, voters, election material and infrastructure. It was also evident that there was also active correspondence between the security agencies and the 1st Respondent, on securing the country for the conduct of the fresh Presidential election. The police, furthermore, made arrests, and charged suspects of various crimes during the demonstrations.
28. Neither the State nor the IEBC bore responsibility for failure of voting in certain regions of the country. Such failure ought to be attributed to unidentified private citizens and political actors, who actively caused the offending situations, directly or indirectly. The validity of the fresh election, however, could not be successfully challenged on that ground alone.
29. While the 3rd Respondent had on various occasions expressed his dissatisfaction with the Judgment delivered by the Supreme Court on September 1, 2017, there was no evidence of any Judge of the Supreme Court being intimidated by the choice of words by the 3rd Respondent, or of any voter being discouraged from voting on that account. It was not enough to reproduce the 3rd Respondent’s political statements, attribute an effect-upon- Judges to them, and invoke the scenario of unidentified voters, then reach the conclusion that such statements had an intimidating effect. As stated in both the Raila 2013 and 2017 decisions, the burden of proof, at all times, lies on a petitioner and generalized claims, without evidence that met clear threshold, were of no value.
30. The actions by the Cabinet Secretary to bar anti-IEBC demonstrations from the Central Business Districts (CBDs) of Nairobi, Mombasa and Kisumu could not have had any bearing on the validity of the Presidential election. The 2nd and 3rd Petitioners had not shown the nexus, if any, between the actions of the Cabinet Secretary and the low voter-turnout.
31. The allegation that the State, headed by the 3rd Respondent, withdrew police security personnel attached to the NASA Presidential candidate, his running mate and other principals in that coalition, thus rendering his participation in campaigns in the Presidential election risky, leading to his withdrawal from the election altogether had also not been proved. Neither the Hon. Raila Odinga, nor his running mate, had sworn any affidavit to confirm the allegation, and even if it were true, there was no evidence that it had any impact on the Presidential election.
32. The role of Cabinet Secretaries was the subject of regulation under section 23 of the Leadership and Integrity Act, and, even if the 2nd and 3rd Petitioners had sufficient evidence, the alleged actions of the named Cabinet Secretaries could not be challenged without first examining the governing law¾ a matter which was not brought before the Court. The complaint in that regard was without merit.
33. The High Court had given a clear determination on the issue of the Government advertising its achievements, and forbade the Government (not the 3rd Respondent in any capacity) from advertising its achievements using State resources during campaign time. The decision was delivered on October 19, 2017 just a week before the repeat Presidential election was held on October 26, 2017, and it specifically related to events and actions prior to the election of August 8, 2017. The 2nd and 3rd Petitioners did not indicate whether the 3rd Respondent was in violation of the High Court Orders prior to the October 26, 2017 election, or was specifically held liable for any advertisements by the Government prior to August 8, 2017. They had also not indicated any specific instances where the Government, through the print and electronic media, advertised its achievements, during the campaign period for the election held on October 26, 2017. There was insufficient evidence placed before the Court on whether the 3rd Respondent had, in any way, used government advertisements during the 60 days leading up to the election, as a campaign tool.
34. The contention that the fresh election was not conducted by an independent and competent body in effect, argued against the very concept of legality under the constitutional process, thus negating the essential democratic values of constitutionalism and legal process. Such a stand was negative, retrogressive, and invited disapproval by the Court. Accordingly the contention in question was devoid of merit.
35. Violence in any form, by any person or agency (private or State), against any person, community, institution or establishment, constitutes a travesty of justice and of the rule of law. Violence undermines the democratic process and makes a mockery of the pacific resolution of disputes which is one of the hallmarks of the progressive Constitution. Unchecked and unbridled episodes of violence are a sure recipe for the disintegration of a nation, and the destruction of the constitutional order. The Court stands not for lending legitimacy to any acts of violence, as a device for settling disagreements.
36. Were any State agencies, such as the police who were allowed to resort to a limited measure of force to prevent crime, protect lives and property, and quell violent insurrection, to deploy excessive force resulting in injury, destruction of property or death, they certainly would be undermining the authority of the Constitution. By the same token, where civilians, for whatever reason, resort to acts of violence and intimidation, with the object of preventing others from exercising their democratic right to vote, or impeding election officials from executing their constitutional responsibilities, such civilians would engage themselves in the atavistic path of undermining the authority of the Constitution. Article 3(1) of that vital charter categorically declared that every person had an obligation to respect, uphold and defend the Constitution.
37. The terms of article 81(e) (ii) of the Constitution, read in proper context, had to be understood to mean that no person, candidate, political party, party agent or supporter, or State agency was to resort to acts of violence, intimidation, improper influence or corruption, to defeat the will of the people exercising their democratic rights to vote. The said provision could not be read as sanctioning or lending legitimacy to acts of violence and intimidation, to achieve the invalidation of an election. If it was to be held otherwise, the authority of the Constitution would be surrendered to cynical acts of violence: all that one would need to do, is to instigate violence in any corner of the Republic during a Presidential election, and thereafter petition the Court to nullify the election. Those who intentionally instigate and perpetrate violence must not plead the same violence as a ground for nullifying an election.
38. The Presidential election could not be held in certain constituencies because of the threat of insecurity caused by violent demonstrations. In that regard, the IEBC invoked section 55B of the Elections Act, postponing the conduct of the repeat election to October 28, 2017.The IEBC was empowered by the Elections Act to postpone an election in a Constituency, County or Ward, in circumstances specified by the Act. However, there was a non-obstante [a ‘none-the-less’ qualification] proviso to that provision; the Commission may, if satisfied that the result of the elections would not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made.
39. Inherent in the foregoing section 55B of the Elections Act statutory provisions were certain vital points:
(a) the Commission was a constitutional body established under article 88 of the Constitution to conduct elections. In particular, article 88(5) mandated the Commission to “exercise its powers and perform its functions in accordance with the Constitution and national legislation;
(b) Article 82(1)(d) of the Constitution empowered Parliament to enact
legislation to provide for the conduct of elections;
(i) the long title to the Elections Act describes it as “an Act of Parliament to provide for the conduct of elections to the office of the President, National Assembly, Senate, County Governor and County Assembly…..”;
(ii) Section 55B of the Elections Act conferred upon the Commission discretion to consider the circumstances necessitating postponement of an election in an electoral unit, such as: the likelihood that a serious breach of the peace was likely to occur if the election was held on that date. There was a low threshold placed upon the Commission, in exercising its discretion to postpone an election for one reason or the other. Mere apprehension of breach of the peace may trigger the exercise of that power. In the instant case, there was actual, not imagined, threat of violence in the affected areas. Therefore, the Commission’s actions were not outside the contemplation of that provision;
(iii) it followed, that Section 55B of the Elections Act was a normative constitutional derivative, annexed to article 82 of the Constitution: to aid the conduct of elections, in line with the principles of the electoral system, and the prerequisites of voting pursuant to articles 81 and 86 of the Constitution, and the right to vote.
Section 55B bore a non obstante clause that allowing the Commission to direct that a return of the election be made, if satisfied that the result of the election will not be affected by voting in the area in which voting remains outstanding. In terms of a Presidential election, that discretion was extended by Regulation 87 of the Elections (General) Regulations, 2012.
40. The Commission made its declaration despite the electorate in the 25 Constituencies not having voted pursuant to article 138 of the Constitution, section 55B of the Elections Act, 2011 and Regulation 87 of the Elections (General) Regulations, 2012. On that basis, even though voters in 25 constituencies had not voted, the declaration of results by the Commission was in perfect accord with the terms of the Constitution.
41. The issue of changing percentages in terms of voter turnout did not in any way call into question the final tally announced by the 1st Respondent at the time he declared the results of the presidential election. It was that final tally that ought to have attracted the attention of the Petitioners.
42. Though the issue of appointment of the Constituency Returning Officers and their deputies was an issue pending in the Court of Appeal, the Supreme Court had an obligation to set the matter to rest. The Court was considering an electoral matter in which it took the first instance, and the ultimate instance. Its singular jurisdiction in the electoral matter was to be secured by holding that the current legal status of the said electoral officials, carried validity for now, and for the future: irrespective of such determination as may later be made by any other Court on the matter. Guided by exigency, and by judicial notice which must be taken of the reality of discharge of the assigned mandate of the electoral agency, the officers in question lawfully held their positions, and duly discharged the constitutional mandate devolving to them. That was also because on the election date, the stay Orders granted by the Court of Appeal were firmly in place, and to state otherwise would be to negate the value of the validity of Court decisions, unless and until they were overturned. The decision of the High Court, to that extent, could not be the basis for invalidating the October 26, election.
43. The allegation of arbitrary relocation of polling stations contrary to the law as regards Kibra Constituency, had not been substantiated with any evidence showing that only 2 people voted at the polling station. No one had come up to say that he or she could not trace or find the polling station after it was moved. It was also admitted that the polling stations were moved as a result of violence that erupted, and that the 2nd Respondent exercised the powers which were conferred on it under Regulation 64(2) of the Elections (General) Regulations 2012. In that regard, the allegations by the Petitioners were in generality, and were not supported by any evidence and had been rebutted by the various returning officers.
44. Most polling stations had agents mainly from the 3rd Respondent’s party. However, save for the bare allegations made by the Petitioners, there were no such serious anomalies as to demand that the election should be invalidated.
45. The issue of a Voters’ Register when raised in any election proceedings was a primary issue for determination. Registration of voters was also a constitutional imperative, by article 83 of the Constitution which outlined the prerequisites of voter registration.
46. Registration facilitated the effectuation of the right to vote. Article 38(3)(a) decreed that every adult citizen had a right, without unreasonable restrictions, to be registered as a voter. As such, the right to vote could not be fully enjoyed if the registration of voters was not properly conducted.
47. Gazette Notice No. 8751 suspended the registration of voters and revision of the voters’ roll, until November 8, 2017. The import of that suspension was that the total number of registered voters contained in the Register used for the August 8, General Election was still in operation during the October 26, 2017 fresh Presidential election. According to the evidence provided by the 1st Respondent, the total number of registered voters, according to Form 34C was 19,611,423 registered voters, which tallies with the number recorded in the Gazette Notice No. 6250.
48. The 2nd and 3rd Petitioners did not lead further evidence to prove the alleged changes in the number of Registered Voters, or that indeed, that affected the outcome of the fresh Presidential election. In any event, the existence of the differences was attributed to the inclusion of prisoners from the total numbers by Kura Yangu Sauti Yangu. The evidence adduced by the Respondents, therefore, sufficiently discharged the Petitioners’ allegations of an inconsistent Voters Register.
49. Part II of the Elections Act comprehensively covered Registration of Voters and Determination of Questions Concerning Registration. Section 8A (3) of the Elections Act placed a mandatory obligation on the Commission to engage a reputable firm to conduct an audit of the Register of Voters, for purposes of, inter alia, verifying the accuracy of the Register and updating the Register.
50. The Voters’ Roll was the centerpiece of an electoral process. At the heart of the right to vote was the obligation of the State to ensure that the registration of voters was undertaken and discharged properly. The Constitution addressed voter registration in four separate articles, namely: (Arts. 38(3)(a); 82(1)(c); 83; and 88(4)(f)). Kenya’s history of elections featured voter registration as one of the aspects that required intensive reform. When the Court determined the Raila 2013 case, the conclusion was that the Register was a product of several components. To consolidate those components into one central location, the KIEMS was introduced, which was a one-stop gadget, with three functionalities, being: voter registration; voter identification; result transmission. Each of those components was independent, yet they all reinforced the electoral process.
51. Voter identification addressed some of the fundamental issues that arose in earlier elections. According to the 2nd Respondent, it was an elaborate system of identification, structured in a way that did not negate any persons’ right to vote. The composite of the voter identification designs were: Biometric identification; alphanumeric search with reference to identification documents; alphanumeric search with reference to physical keying in of the biographic data; Presiding Officer Authentication (Supervision mode); and complementary identification. With the checks guaranteed by these elaborate modes of identification, most of which were witnessed by voters, and visible in the eviRTSlogs provided by the 2nd Respondent, the 2nd and 3rd Petitioners had not met the dictates of proof to show that: dead persons participated in the election; unqualified persons voted; persons with special needs were denied the chance to vote or that the total number of registered voters was in doubt at the time of the election.
52. Section 2 of the Elections Act, 2011 defined a Register of Voters to mean a current register of persons entitled to vote at an election, prepared in accordance with section 3, and included a register that was compiled electronically. As such, a print-out of the electronic register for purposes of the election was not in violation of the law. Regulation 61 (4) of the Elections (General) Regulations, 2012, required the Returning Officer to provide each polling station with both electronic and hard copy of the Register of Voters or such part thereof as contains the biometric data and alpha numeric details of the voters entitled to vote at a polling station.
53. The Voters’ Roll was subject to periodic inspection as decreed by section 6 of the Elections Act, 2011. The discretion to determine when a Register was closed to inspection rested with the Commission. That was necessitated by the administrative needs that attached to electoral management and preparation. That continuous exercise, therefore, showed that the Commission was not under immediate obligation to act on the recommendations of KPMG.
54. The Voters’ Roll was a living document; with the addition of eligible persons entitled to vote, and the exit of others, its character also changed, necessitating regular updating. In that regard, Section 8 of the Elections Act, 2011 was very instructive.
55. The processes outlined by the law relating to registration, verification, inspection, audit, transfer of registration, and updating the Voters’ Register, were all time-bound. The 3rd Petitioner questioned processes that occurred before the conduct of the General Election on August 8, 2017. The question of the Register was addressed by the Court (paragraph 301 of the Majority decision) in Raila 2017, and the Court was satisfied that the 1st Respondent did not alter the Register as alleged by the 2nd and 3rd Petitioners. All evidence adduced and analyzed led to a contrary position. As such, there was no effect to the alleged failure by the 1st Respondent to address issues raised in the KPMG audit. In view of all the evidence presented, and the submissions, the 2nd and 3rd Petitioners’ grounds on the Voters’ Register, failed.
56. Not every irregularity or procedural infraction is enough to invalidate an election. The irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a Court of law to nullify the same. While the petition made far-reaching allegations of irregularities, the same had been effectively rebutted, or explained away in replying affidavits, and submissions of counsel.
57. Examination of sample materials submitted to the Court by the 1st and 2nd Respondents (Forms 34A, 34B and Form 34 C), as against the ones attached to the Petitioners’ pleadings, lend credence to the explanations given to the Court by the Respondents. While the 2nd and 3rd Petitioners made serious allegations of widespread malpractices having characterized the election, various counsel for the Petitioners spent most of their allocated time addressing the Court on collateral issues, instead of laying evidence, and discharging the burden of proof, by addressing the Respondents’ written submissions.
58. The Petitioners had not discharged the burden of proof to the standard established by the Court. At no time, did the burden shift to the 1st and 2nd Respondents. By the same token, the Respondents had not violated the applicable electoral law, in the management of the October 26, 2017 election.
59. At the time the cause of action arose, to wit, the October 26, 2017, the law then applying was the Elections Act, 2011. The amended laws did not become effective until November 2, 2017. In that context, the common practice was that legislation should be effected prospectively and not retrospectively; that is, laws should be forward-looking and should not apply backwards in time. Prospective application of legislation is based on ancient Roman and English common law. Prospectivity is also consistent with elemental notions of fairness.
60. It is a conventional rule of construction that, legislation must be addressed to the future, and a statute should not be given retrospective operation, interfering with antecedent rights. Legislation should bear only prospective effect, in the absence of special legislative signal to the contrary. Where a legislative body thus wishes to change the law regarding a past event/action, its intent is to be clear enough. By this principle, where legislation is ambiguous, or silent as to its effective date, it should be presumed to be prospective.
61. In the present instance, when Parliament passed the amendment to section 83 of the elections Act, it did not state that the law should apply retroactively. In the instant matter, prospectivity could be presumed to avoid construing a new law that otherwise might have attached new [post-enactment] legal consequences to events completed before the law’s enactment.
62. The applicable election law, in respect of the conduct of the October 26, 2017 election was the Elections Act, 2011, the Elections Laws (Amendments) Act, 2017 (Act No. 34 of 2017) not having come into effect as at the time of that election, and the same not having had retrospective application.
63. Having taken into account all the submissions on the question whether section 83 of the amended law was unconstitutional and invalid, and being aware, that the amended law was the subject of various pending causes before the High Court, there was no reason to take away the jurisdiction of other Superior Courts, and determining issues pending thereat. However, the position could be distinguished, from a matter arising in the course of a Presidential election in regard to which the Supreme Court had unqualified jurisdiction, and where the issue essentially related to a petition before the Court.
64. The overlapping jurisdiction between the High Court and the Supreme Court only arose when interpreting or applying the provision in so far as it related to the Presidential petition. Where however, the challenge to a statutory provision was directed as a ground in the context of a Presidential petition, the Supreme Court should not find any difficulty in addressing the same in the context of a Presidential petition. That did not exclude the power to refer the matter to the High Court, for its proper disposal, depending on the circumstances. The issue of the unconstitutionality or invalidity, or otherwise, of section 83 of the amended law would therefore be determined by the High Court, where the matter was under consideration. There was no prospect of the High Court making a finding that would affect the Supreme Court’s determination of the present Presidential election petition.
65. Kenyan elections had to be evaluated, in their general outlook, in the context of recognized legal practice; of the operative law and governance institutions; and of the profile of stable socio-political order and of economic dynamics that have sustained, and continue to sustain the community.
66. The term “Credibility” had to be measured in the eyes of the general population for whom dependability and sustainability are all-important, on a day-to-day basis. The rationale of the electoral process is that it should facilitate dependability of governance for the voting public. Though the test is largely subjective, the Court’s task is to rest its findings on its classical yardsticks of legality, rationality and objectivity, being guided by its true, professional understanding of the public interest. Thus in addressing credibility in the context of the impugned election among other things, the Court has to adhere to verifiable criteria, such as:
a. Was there valid preparation for the election?
b. Did the election take place?
c. Was the conduct of the election guided by prescribed law?
d. What scope of discretion existed within the law? Was this duly exercised?
e. Was a candidate duly declared elected?
f. In general picture, was the constitutional task accomplished?
67. From the proper meaning of legitimacy, it was not tenable to attribute lack of legitimacy to Presidential elections duly conducted by the terms of the Constitution and the relevant statutes and regulations, and by the constitutionally-designated authority, strictly in compliance with the valid orders of the Supreme Court – election essential to the sustenance of the national governance process as constantly recognized by the national population. Only the failure of the conduct of such election would constitute lack of legitimacy – as it would occasion such uncertainty and appearance of crisis as would afflict the whole population in its social, economic and political engagement.
68. From the controlling factor of legitimacy, the election would be perceived as credible, in the absence of clear evidence that;
a. the bulk of it simply failed;
b. due procedure was not followed in the conduct of election;
c. someone other than IEBC conducted the election;
d. the procedures of vote counting were not followed;
e. false results were announced, in place of the true outcome;
f. the voters were turned away from polling stations by IEBC, or by State agencies of power;
g. the motions of verification and announcement of vote-outcome were not complied with.
None of these factors were at play or at play in any significant manner.
69. In accordance with article 81(e) of the Constitution of Kenya, the repeat election was conducted by secret ballot; it was free from violence (more particularly, such violence being initiated and prosecuted by the electoral body, or by State agencies); the voters were not influenced by intimidation or corruption; the management process was in the hand of IEBC; voting was transparently done; such voting proceeded transparently, efficiently, accountably, with precision and clear expression of voter-preference. Such election hence had to be judged to have been credible for the purposes of the Constitution, the law, and the national expectation.
70. The burden fell on the 2nd and 3rd Petitioners, not just to allege, but to show by objective evidence the legal foundations of their claim; and thereafter to lay before the Court weighty evidence to sustain each and all of their claims. As already demonstrated, some of their claims were of such a generic order as to lend only feeble grounds for the Court to depart from prima facie perceptions of legitimacy and credibility. Examples in that category were:
(i) That the 1st and 2nd Respondents acted outside the law, and demonstrated lack of independence and neutrality;
(ii) That the 1st Respondent publicly admitted that he could not guarantee free, fair and credible elections;
(iii) That on 24th October, 2017 the IEBC, without any legal basis, appointed one Consolata N.B. Maina as a Deputy National Returning Officer, a position unknown to law;
(iv) that in a public address, the 1st Respondent, hours to the elections, publicly acknowledged that everyone was still questioning whether there was going to be an election, thus showing unpredictability and uncertainty as to the prospect of the said election;
(v) that the environment was not conducive to the conduct of a free, fair and credible election;
(vi) that the election failed to meet the general principles stipulated under article 81(e) of the Constitution of Kenya, of free and fair elections;
(vii) that the IEBC was not independent, and its decisions had been unpredictable and capricious, and not based on law: for instance, that the 1st Respondent promised to investigate the offences arising out of the decision of the Supreme Court, but failed to do so; that he promised to carry out internal changes at the secretariat, but failed to do so; that he notified the public that there had been no scuffles at the Commission, but later wrote an accusing memorandum to its CEO/Secretary;
(viii) that on October 17, 2017, in her resignation statement, one Dr. Roselyn Akombe stated that the fresh election could not meet the basic expectation of a credible election, as the Commission was saddled with endless cases which it was losing, on account of legal advice skewed to suit partisan political interests;
(ix) that the IEBC was not transparent: for instance, it could not clearly tell the public whether the voter turnout in respect of voters registered with biometrics exceeded that for those without;
(x) that the IEBC failed to take every diligent and reasonable effort to ensure free, fair and credible election.
The October 26, 2017 elections met the threshold of credibility and legitimacy under the Constitution, certain anomalies highlighted in other parts of the Judgment notwithstanding.
71. The Petitioners’ concern with voter turn-out was that it should be an expression of the legitimacy of the election. They constructed the point around the right of every citizen to vote, and the effect of violence and non-voting, in certain constituencies, and its effect on the outcome of the election. Whereas the right to vote was guaranteed, the Constitution did not impose a mandatory obligation on a citizen to vote in an election. The ultimate yardstick for determining the winner in a Presidential contest was provided for under article 138 (4) of the Constitution, in the following terms: A candidate would be declared elected as President if the Candidate received –
a. more than half of all the votes cast in the election; and
b. at least twenty-five per cent of the votes cast in each of more than half of the counties.
72. Article 134(4) spelt out the minimum threshold required of a candidate, before being declared elected. The quantifying element was the outcome in the votes cast in an election and, consequently, if the safeguards of the right to vote were guaranteed, and the optimum environment adhered to within the confines of articles 81 and 86 of the Constitution, and of all the imperatives of a free, fair and credible election, the matter resolved to the question of ‘votes cast’, and the ‘county threshold.’ A candidate only needed to attract a modicum of voter support, to earn a positive declaration. Therefore, if the foregoing attributes for declaration were not affected by the voter turn-out, the validity of the declaration stood uncompromised.
73. Low voter turn-out, without more, was insufficient as a basis for invalidation. Where the threshold for declaration had been met, to set aside an election because of low voter turn-out would be to deprive citizens who voted, of the benefit of their franchise.
74. There were various factors leading to the low voter turn-out. Re-running an election would generally have a negative impact on voter turnout. There was a proper basis, therefore, to find that voter turn-out had no direct connection to the validity of the declaration of a President-elect, even though, subject to article 138(4) of the Constitution, it remained, important for as many people as possible to participate in a Presidential election.
75. Though the 2nd and 3rd Petitioners urged persistently, that violence and intimidation were the factors that led to the low voter turn-out, and therefore compromised the credibility of the declared result, it was clear however, that such low voter turn-out was due to an amalgam of factors – including in particular, the active call for boycott, and the violent demonstrations, as well as voter-fatigue. Throughout the world, a call to boycott elections had the impact of lowering voter turn-out.
76. Regarding voter-fatigue, it was commonplace that voter turn-out is low, when voters were required to participate in elections which run one after another, with only a short break in-between, or if the number of elections in one year are numerous. It was a scenario of common occurrence. In France, the voter turn-out in the elections of April 23, 2017 was estimated to be 78.69%, while in the second round the voter turn-out was estimated to be about 38%. It was evident, therefore, that in repeat elections, and in by-elections, the voter turn-out was ordinarily lower than the turn-out in general elections. Going by such statistics, it could be deduced that low voter turn-out was not an unassailable indicator of the want of credibility of an election.
77. Voter turn-out in a repeat election is generally low. Although there were a myriad of factors in the present case that led to the low voter turn-out, an election could not be tainted solely on the ground of voter turn-out. The factors that led to low voter turn-out, although politically tainted, and inviting political solutions, were not sufficient as a basis for impugning the electoral process.
78. From the emerging portrait of the issues in the case, the primary focus on the broad-textured concepts of “legitimacy” and “credibility” by the Petitioners led them on a course of prolixity. That stood in contrast to the object of conscientious invocation of the judicial process – which brought before the Court only a limited set of meritorious issues. That latter category had been duly answered, bringing the Court to the clear conclusion that the Petitioners’ case lacked merit.
79. In both Raila 2013 and 2017, the Supreme Court took the view that, noting the substantial public interest accompanying Presidential election petitions, it would not be in the interest of justice to penalise a losing party, with the burden of costs. That reasoning could also apply to the case, especially as the Petitioners had approached the Court as registered voters (whether or not they voted in the recent election), with complaints that the processes leading to, and the conduct of the October 26, 2017 election did not meet constitutional or statutory thresholds, and that a further election ought to be held. Although the petition did not succeed, the interests of justice would disincline the Court to make an adverse order on costs. By no means did that rule out the possibility that, in a proper case, the Court may dispense the penalty of costs upon a party, where such party brings forth a frivolous or vexatious case, or a case that distinctly aims at settling political scores. In particular, the domains of locus standi, or public interest litigation, as those which in a proper case, would attract penalty in costs.
Njoki Ndungu, SCJ concurring;
80. The Supreme Court‘s jurisdiction in relation to electoral disputes is, broader than that of the other superior Courts. That interpretation, and the language of the Elections Act and the Election Laws (Amendment) Act, placed section 83 of the Elections Act at the centre of any determination by an election Court. After the hearing and analysis of the case from the submissions and evaluation of the evidence, the application of section 83 served as the Judge’s determinate vector. Therefore, although the Parties seemed to be in agreement that the constitutionality of that section was removed from the Court’s exclusive original jurisdiction and was the preserve of the High Court on the basis of a pending suit, the Court’s determination of that issue was necessary to complete the mandate bestowed under article 163(3)(a).
81. The Court had time and again held that issues pending before another Court would not be subject to determination before the Supreme Court but rather the Supreme Court would allow that other Court having the jurisdiction to determine the matter in the first instance. The High Court, the Court of Appeal and the Supreme Court were all empowered to interpret the Constitution and that in ordinary circumstances; litigation on issues of constitutional interpretation would in the first instance fall for determination by the High Court. However, it was important to distinguish those judicial pronouncements from the matter before the Court, because in all of those instances the Supreme Court had in mind ordinary causes coming before it by dint of article 163(4)(a) or (b) of the Constitution; i.e. appeals from the Court of Appeal; and, issues of constitutional interpretation or application which must have formed an integral part of the issues raised in the superior Courts and been the subject matter of determination. It followed therefore, that the Supreme Court would exercise deference to another superior Court below it in hierarchy, in instances in which the Court of original jurisdiction in respect of the matter before it, was that superior Court.
82. In a matter in which the Court was exercising exclusive original jurisdiction, – as an election Court – it was imperative for the Court to answer, in the first instance, such questions relating to interpretation and application of the Constitution that were so integrally linked to the determination of the validity or otherwise of the declared result.
83. Since the determination of a Petition challenging the declaration of a Presidential election fell to the exclusive original jurisdiction of the Supreme Court, the legal implication of leaving main issues unresolved was the creation of a lacuna in the application of the law. Losing the chance to clarify it until such time as the jurisdiction of the Supreme Court would be invoked in another like matter or such time as the Legislature illuminated the penumbras occasioned therein. The grave occasion of the Court’s acceptance of the submissions of counsel to skip the central determination revolving around the constitutionality of section 83 (as amended) left a matter properly before the Court unresolved. The Constitution did not countenance a situation whereby the Court made a partial determination on any matter, especially in an election cause.
84. In Kenya’s Constitutional scheme, the jurisdiction of the Supreme Court was not as rigid as would have been in 1989 when the Court of Appeal rendered its opinion in the Lillian S case on jurisdiction. There were rare instances, when the jurisdiction of the Supreme Court would engage the interpretation of an issue pending before a Superior Court. Where an issue is so integrally linked to the cause before the Court in exercise of its duty under article 163(3)(a) of the Constitution, the Court would address itself to that issue notwithstanding its status before a lower Court. The remarks relating to the mandate of the Supreme Court were not only applicable in exercise of its Appellate Jurisdiction but also in respect of its exclusive original jurisdiction.
85. The Supreme Court had on various occasions pronounced that it should utilize every opportunity that presented itself in the course of determination of matters before it to interpret the Constitution. In view of the requirement in section 3 of the Supreme Court Act, 2011 for the Court to:
a. assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
b. provide authoritative and impartial interpretation of the Constitution; and,
c. develop rich jurisprudence, among others,
The Court could not shy away from determining conclusively all the issues relating to constitutional interpretation and application that arose within a presidential election so long as such issues were central to the determination of the question of validity of the declaration of the President-elect.
86. The resolution of a Presidential Election Petition fell to the Court for determination in exercise of its exclusive original jurisdiction pursuant to article 140 of the Constitution. Failure by the Court, to determine an issue that was integral to the Petition would have the effect of leaving part of the dispute between the parties unresolved. In terms of section 83, it would have the effect of leaving undetermined, the fulcrum of the election cause itself. Consequently, the resultant decision would be one falling short of the explicit commands of article 140 and those of article 159(2) that justice shall not be delayed and the purposes and principles of the Constitution shall be protected and promoted. Such an incomplete decision would also be contrary to the distinct objects of the Court set out in section 3 of the Supreme Court Act and the entire fabric of the Constitution.
87. In order for the Court to determine, with finality, the question of validity of the declaration of the president-elect after the election held on October 26, 2017, it must inevitably, determine all the issues that crystallised for determination and the applicable electoral law in that respect. The Court was charged to signal the law that it had relied on in arriving at its determination in any matter, more importantly, in determining the validity of a declaration in a Presidential election and for good reason. Firstly, it attracted enormous public interest. Secondly, other Courts looked up to the Supreme Court to offer the guiding compass on interpretation and application of the Constitution and its interplay with other applicable laws and Thirdly, for certainty and predictability of Kenya’s electoral jurisprudence.
88. The doctrine of presumption of constitutionality would be applicable in respect of section 83 of the Election Laws (Amendment) Act as long as that provision had not been adjudged unconstitutional by any Court. The constitutionality of section 83 fell for the Court’s determination in the instant Petition.
89. The Election Laws (Amendment) Act 2017 was passed by Parliament on October 12, 2017 and submitted to the President for assent on October 13, 2017. Article 115(1) of the Constitution provided that the President must assent to a Bill or return it to Parliament within 14 days of receiving it. Article 115(6) provided that if the President did not assent to a Bill or return it to Parliament within that period, the Bill was deemed to have been assented to at the end of that period. Under article 116(1), the law had to be published in the Gazette within 7 days of its assent whether express or implied. Article 116(2) provided that an Act of Parliament came into force 14 days after publication in the Gazette unless the law provided for an alternative date.
90. The President having not assented to the subject Bill by October 27, 2017 (the 14th day), by operation of law it was deemed assented to on that date. It was then published in the Gazette on November2, 2017. Since the Act provided that the law would come into force on publication in the Gazette, it came into force on November 2, 2017.
91. Section 83 of the Elections Act appeared in Part VII of the Act-Election Disputes Resolution, under the heading, ‘Election Petitions.’ More specifically, it addressed the conduct of the Court after an election Petition had been filed before it. In that instance, the determining cause triggering the application of the law was the cause presented for the Court’s determination. Section 83 contained the test to be applied by a Court while determining an electoral cause before it. Therefore, it did not follow an electoral event i.e. the election, it followed the declaration by a Judicial Officer, of an election cause. Section 83 (as amended) was therefore, the applicable law not just in the Petition, but in other election Petitions and appeals before other Courts.
92. Any challenge of constitutionality or otherwise of any law, act or omission ought to be brought on the basis of inconsistency with the Constitution as directed under article 2(4).The role of a Judge is to compare the impugned law or action with the provisions of the Constitution to determine consistency or otherwise. There must be more than an implied or incomplete argument touching on constitutionality to exhaustively determine a claim of inconsistency with the Constitution.
93. Inconsistency on the basis of statute and on the basis of conduct are distinguishable and ought to be comprehensively pleaded. It is not enough to plead inconsistency of a law with the Constitution as a tangential issue in a case. Claims of inconsistency must be well pleaded and argued by the Parties and where the Court determines that such a crucial question was given peripheral treatment, it may exercise its discretionary powers to ask the parties delve deeper into it. The consideration of any law or conduct against the Constitution is central to any legal proceedings.
94. The resolution of the question of section 83, as urged in the case, was very central to the matter before the Court. Section 83 of the Elections Act (as amended) was a product of the mandate bestowed on Parliament vide article 82 of the Constitution. Parliament has the legislative authority to enact laws, including, legislation on elections. Having determined that the section, as amended was the applicable law in determining the Petition and having noted that it was the determinate vector while making a judicial determination in any election Petition, interpretation of the section was therefore a vital component of the Court’s final determination.
95. Even where constitutional questions have not been presented concisely and clearly, the Court is not to overlook a determination of that issue. In a proper case, the Court ought not to defer the determination of a Constitutional issue central to the cause before it to another forum.
96. A principle developed in deference to the separation of powers and more specifically, in light of the role of Parliament under article 94 of the Constitution is ‘presumption of constitutionality.’ Any legislative action by Parliament is presumed Constitutional and the burden is on the person challenging the legislative act to show in what manner it breached the Constitution.
97. It was not apparent, either from the case by the Petitioners by way of rebuttal of the presumption of constitutionality or following the application of the law, that the same violated the Constitution and more specifically, fundamental rights and freedoms. As such the constitutional qualification against that presumption, in the strict terms of article 24 (2)(4) of the Constitution, did not arise.
98. The finality of the Supreme Court as a judicial agency, and its role as the custodian of the Constitution militates, save for rare instances dictated by the circumstances of each case, against the blanket presumption of constitutionality without delving into a holistic interpretation of the constitutional vis-a-vis, the impugned law or conduct. The Judiciary in general and the Supreme Court in particular retained control over interpretation of the Constitution.
99. The Petitioners claimed that the Amendment compromised the independence of the Judiciary and was an attempt to review the Supreme Court’s determination in Raila Odinga, 2017. The legislative authority of the Republic was vested in Parliament (art. 94). Parliament was the only body with powers to make provision having the force of law unless otherwise provided by the Constitution or legislation. Therefore, at the outset, by enacting the Election Laws (Amendment) Act, Parliament was well within its Constitutional Mandate.
100. It was admitted that on the October 2-5, 2017 the Joint Select Committee of the National Assembly and Senate committees on Election Laws (Amendments) Bill 2017 put in place avenues for public participation from the different stakeholders through the submission of proposals. That fulfilled the requirements of public participation as obliged under article 118 (1)(b).
101. The amendment to section 83 of the Elections Act was not meant to undermine the independence of the Judiciary. The purpose of the Elections Act (Amendment) Laws was elaborated in the National Assembly. The purpose according to the excerpts from the Hansard of the 12th Parliament on October 10, 2017 was to harmonise the laws by clearing any ambiguities flowing from interpretation.
102. Parliament was in no way invasive into the judicial realm in amending the impugned section. The purpose of the Legislature was to clarify the law and bring it into conformity with international best practice. A law does not become unconstitutional simply because it goes against the precedents of the Supreme Court or other Courts. The legislative mandate afforded an opportunity for the Courts to reconsider precedent and nurtures the development of constitutional law.
103. Article 81 of the Constitution outlined the principles of the electoral system. Article 86 of the Constitution on the other hand provided the imperatives of voting: voting method, counting, tallying, announcement, and post-election safeguards. Those principles were therefore cross-cutting. A stricter dichotomy would separate those two principled provisions as bearing on process and outcome. Those two critical elements of an election were crucial in the determination of its validity. The process gave rise to the outcome. Therefore, deviation from the process must be considered against its effect to the declared outcome.
104. Section 83 (as amended) provided a formula for evaluating the conduct of an election against the process and the outcome and was the product of article 82 of the Constitution. It also did not take away the powers of an election Court to determine compliance of an election with the purpose and principles of the Constitution. Therefore it was not inconsistent with the Constitution.
i. Petition No.2 of 2017, Hon. John Harun Mwau v. Independent Electoral and Boundaries Commission & 2 Others), as consolidated, dismissed.
ii. Petition No.4 of 2017, Njonjo Mue and Anor v. the Chairperson of the Independent Electoral and Boundaries Commission & 3 Others, as consolidated, dismissed.
iii. The Presidential election of October 26, 2017 upheld, as was the election of the 3rd Respondent.
iv. All parties to bear their costs.