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|Case Number:||Election Petition 1 of 2017|
|Parties:||Odinga & another v Independent Electoral and Boundaries Commission & 2 others|
|Date Delivered:||01 Sep 2017|
|Court:||Supreme Court of Kenya|
|Judge(s):||David Kenani Maraga, Jackton Boma Ojwang, Isaac Lenaola, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu|
|Citation:||Odinga & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition 1 of 2017)  KESC 32 (KLR) (Election Petitions) (1 September 2017) (Determination)|
|Court Division:||Election Petitions|
Presidential Election annulled for failing to conform with the Constitution and the Elections Act
On August 8, 2017, a general election was held in Kenya. Following the election, the 1st Respondent declared the 3rd Respondent as the President-Elect. Aggrieved by the pronouncement, the 1st and 2nd Petitioners filed the instant petition in which they sought for the Presidential election to be annulled for failure to comply with laid out Constitutional principles and the provisions of the Elections Act. The Petitioners based their petition on grounds that the Presidential Election was tainted by illegalities and irregularities and consequently it lacked integrity.
Relevant provisions of the law
Constitution of Kenya, 2010
National values and principles of governance
(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—
(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions.
(2) The national values and principles of governance include—
(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity, transparency and accountability; and
(d) sustainable development.
(1) Every citizen is free to make political choices, which includes the right—
(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party or
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.
(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.
General principles for the electoral system
The electoral system shall comply with the following principles—
a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.
At every election, the Independent Electoral and Boundaries Commission shall ensure that—
(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.
Determination and declaration of results
(1C) For purposes of a presidential election the Commission shall —
(a) electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre;
(b) tally and verify the results received at the national tallying centre; and
(c) publish the polling result forms on an online public portal maintained by the Commission.
Use of technology
(1) Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.
(2) The Commission shall, for purposes of subsection(1), develop a policy on the progressive use of technology in the electoral process.
(3) The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.
(4) The Commission shall, in an open and transparent manner —
(a) procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections; and
(b) test, verify and deploy such technology at least sixty days before a general election.
(5) The Commission shall, for purposes of this section and in consultation with relevant agencies, institutions and stakeholders, including political parties, make regulations for the implementation of this section and in particular, regulations providing for —
(a) the transparent acquisition and disposal of information and communication technology assets and systems;
(b) testing and certification of the system;
(c) mechanisms for the conduct of a system audit;
(d) data storage and information security;
(e) data retention and disposal;
(f) access to electoral system software source codes;
(g) capacity building of staff of the Commission and relevant stakeholders on the use of technology in the electoral process;
(h) telecommunication network for voter validation and result transmission;
(i) development, publication and implementation of a disaster recovery and operations continuity plan; and
(j) the operations of the technical committee established under subsection (7).
(6) Notwithstanding the provisions of section 109(3) and (4), the Commission shall prepare and submit to Parliament, the regulations required made under subsection (4) within a period of thirty days from the date of commencement of this section.
(7) The technology used for the purpose of the first general elections upon the commencement of this section shall —
(a) be restricted to the process of voter registration, identification of voters and results transmission; and
(b) be procured at least one hundred and twenty days before the general election.
(8) For the purposes of giving effect to this section, the Commission shall establish a technical committee of the Commission consisting of such members and officers of the Commission and such other relevant agencies, institutions or stakeholders as the Commission may consider necessary to oversee the adoption of technology in the electoral process and implement the use of such technology.
44A. Complementary mechanism for identification of voters Notwithstanding the provisions of section 39 and section 44, the Commission shall put in place a complementary mechanism for identification of voters and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.
83. Non-compliance with the law
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.
Majority: D. Maraga CJ, P. Mwilu DCJ, S. Wanjala and I. Lenaola, SCJJ
Dissenting: J. Ojwang and S. Ndung’u, SCJJ
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|