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|Case Number:||Election Petition 1 of 2017|
|Parties:||Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission, Chairperson, Independent Electoral and Boundaries Commission & Uhuru Muigai Kenyatta|
|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:||Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission, Chairperson, Independent Electoral and Boundaries Commission & Uhuru Muigai Kenyatta (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
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others  eKLR
Election Petition 1 of 2017
Supreme Court of Kenya
D. Maraga, CJ, P. Mwilu, DCJ, J. B. Ojwang, S. C. Wanjala, N. Ndung’u & I. Lenaola, SCJJ
September 1, 2017
Reported by Ribia John
Electoral law – presidential election –validity of a presidential election-petition challenging the validity of the president elect-allegations of non-compliance with the Constitution and electoral laws- allegations of various irregularities and illegalities during the conduct of the elections –what are the principles of free and fair elections -whether the 2017 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, Elections Act 2011, sections 39 (1c), 44, 83;Elections (General) Regulations, 2012 Regulation 87(1)(b)
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.
i. Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the provisions of the Elections Act.
ii. Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
iii. Whether the irregularities and illegalities, if any, affected the integrity of the 2017 Presidential Election
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
1. The 1st Respondent failed, neglected or refused to conduct the Presidential Election in a manner that was consistent to articles 10, 38, 81 and 86 of the Constitution of Kenya, 2010 and in a manner that was consistent with sections 39(1C), 44, 44A and 83 of the Elections Act.
2. The 1st Respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which would be given in the detailed and reasoned judgment of the Court. However, there was no misconduct on the part of the 3rd Respondent.
3. The irregularities and illegalities conducted by the 1st Respondent affected the integrity of the election and thereby impugned the integrity of the entire Presidential Election.
Order by the majority of the Court (with J. B. Ojwang and S. Ndung’u, SCJJ, dissenting)
i.Declaration issued that the Presidential Election held on August 8, 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.
ii.Declaration issued that the 3rd Respondent was not validly declared as the President elect and that the declaration declaring him President was invalid, null and void.
iii.Order issued that directed the 1st Respondent was to organise and to conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the instant determination under article140(3) of the Constitution.
iv.Each party was to bear its own costs
Per J Ojwang, SCJ (Dissenting)
1. Whereas the substance of the case was founded on illegality and irregularity rested on the voting results electronic transmission process, there was substantial information showing that, by law, the conduct of the election should have been mainly manual, and only partially electronic. Hardly any conclusive evidence had been adduced in that regard which demonstrated such a manifestation of irregularity as to justify the invalidation of the election results.
2. As it regarded the invocation of the Constitution as a basis for annulling the electoral process, only general attributions had been made without adherence to the prescription that the task of interpreting the Constitution with finality rested with no one but the Courts.
3. Much of the evidence which the majority opinion adopted was largely unascertained, apart from standing in contradiction to substantial, more credible evidence.
4. In such a marginal state of merits in the case that challenged the conduct of elections on August 8, 2017, it was clear beyond peradventure, that there was not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will, which was recorded on August 8, 2017.
5. The procedural law for assuring the integrity of elections was abundantly set out in the Elections Act, 2011 and in the Electoral Code of Conduct; and the relevant provisions were conscientiously applied by the Independent Electoral and Boundaries Commission, which fully provided for the role of international and local observers, as well as agents, in the conduct of the Presidential Election. The resulting electoral process had all the vital features of merit, as all the observers publicly acknowledge.
6. To disregard such outstanding features of merit in the elections on August 8, 2017, was to overlook the most basic democratic principles which safeguard the electors’ entitlement to choose their public office-holders.
7. The instant petition was devoid of requisite supporting evidence, it did not rest upon the pillars of the Constitution, the ordinary law, or the pertinent elements inherent in the configuration of a democratic election.
Petition would have been dismissed
Per N Ndung’u SCJ (dissenting)
8. At the heart of democracy were the people, whose will constituted the strand of governance that Kenya had chosen. On August 8, 2017 millions of Kenyans from all walks of life yielded to the call of democracy and queued for many hours to fulfil their duty to Kenya by delegating their sovereign power to their democratically elected representatives. That was an exercise that was hailed by many regional and international observers as largely, free, fair, credible and peaceful. That duty stood sacred and was only to be upset if there was any compelling reason to do so. That reason had to affect the outcome of the election.
9. The election was conducted in accordance with the Constitution and the law. The 1st and 2nd Respondents demonstrated that they had adhered to the directions given by the Court of Appeal in the case of Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy  eKLR (the Maina Kiai case) where the Court of Appeal cautioned, that the results declared at the polling station were final. The polling station was at the heart of any election. It was what happened there that was to be assessed and that was why its outcome was final.
10. In any election, the ordinary Kenyan voter would ask themselves the following questions:-
a) Was there a problem with registration of voters?
b) Were voters properly identified at the polling station?
c) Were voters allowed to cast their ballots peacefully and within good time?
d) Were the votes cast-counted, declared and verified at the polling station to the satisfaction of all parties?
If the answer to all the instant questions was in the affirmative, then the election had been conducted properly.
11. The Petitioners did not present material evidence, to the standard required, to upset the results returned to the National Tallying Centre by the presiding officers in Forms 34A. Those results, counted and agreed upon by Agents at the polling station were not challenged.
12. What was fiercely contested was the mode through which those results were transmitted from the polling station to the National Tallying Centre. That process yielded the results that were streamed onto the portal and which, were not sufficiently impugned during the trial. The decision of the voter at the primary locale of the election, the polling station, was unchallenged.
13. How then could a process used to transmit those results for tallying upset the will of the electorate? It was not proved that the voter’s will during the conduct of elections, was so affected by any irregularities cited so as to place the instant Court or the country in doubt as to what the result of the election was. Challenges were to be expected during the conduct of any election, however, those challenges which occurred, (none of which occurred deliberately or in bad faith, and which fell particularly outside the remit of the voter and his/her will) ought not to supplant the voter’s exercise of their right of suffrage.
Petition would have been dismissed.
|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|