(d) A declaration that the rejected and spoilt votes count toward the total votes cast and in the computation of the final tally of the Presidential Election.

(e) An Order for scrutiny and audit of all the returns of the Presidential Election including but not limited to Forms 34A, 34B and 34C.

(f) An Order for scrutiny and audit of the system and technology used by the 1st respondent in the Presidential Election including but not limited to the KIEMS Kits, the Server(s); website/portal.

(g) A declaration that the non-compliance, irregularities and improprieties in the Presidential Election were substantial and significant that they affected the result thereof.

(h) A declaration that all the votes affected by each and all the irregularities are invalid and should be struck off from the final tally and computation of the Presidential Election.

(i) A declaration that the Presidential election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void.

(j) A declaration that the 3rd respondent was not validly declared as the President elect and that the declaration is invalid, null and void.

(e) The Court ordered access to Technical Partnership Agreements for IEBC Election Technology System including a list of technical partners, kind of access they had and list of APIs for exchange of data with partners. The documents were issued with the exception of the list of APIs. The Court appointed ICT Experts said full information on APIs would have enabled determination of what kind of activities may have taken place;

(f) The Court had also ordered IEBC to provide the petitioners with the log in trail of users and equipment into the IEBC servers, the log in trails of users and equipment into the KIEMS database Management systems and the administrative access log into the IEBC public portal between 5th August 2017 to date (being the date of the Court Order which was on 28th August, 2017). These were also not provided. Instead, IEBC provided pre-downloaded logs in a hard disk whose source it refused to disclose. The IT experts agreed with the petitioners’ contention that the 1st respondent should have demonstrated that the logs emanated from IEBC servers by allowing all parties to have Read Only Access. Alternatively, the 1st respondent could have accessed the information in the presence of the petitioners’ agents. Partial live access was also only purportedly provided on 29th August, 2017 at about 3.50pm without ability to access the logs or even view them. The exercise was therefore a complete violation of the Court Order and the access was not useful to the parties or the Court.

Undue influence at elections

171C. (1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.

(2) Without prejudice to the generality of the provisions of sub-section (1), whoever–

(a) threatens any candidate or voter, or any other person in whom a candidate or voter is interested, with injury of any kind, or

(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).

(3) A declaration of public policy or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.”

(b) Anti – copy patterns; when the results declaration forms are photocopied, hidden texts appear on the copy produced thus distinguishing the original from the reproduced copy. Thus, a photocopy would be distinguishable from an original form.

(c) Watermarks; when the results declaration forms are viewed against normal light or at an angle, a pattern or text incorporated in the form can be seen.

(d) Micro text; the results declaration forms have text characters printed in very small font size which appear like a line to the naked eye and are verifiable only under a magnified glass.

(e) Tapered serialization; this means serial numbering. Each of the result declaration forms has a unique serial number to ensure monitoring and control of the distribution of forms. Furthermore, this serialization cannot be done by regular mechanical impact devices.

(f) Invisible UV printing; each result declaration form bears invisible logos which may only be seen under a UV light. This feature renders the forms almost impossible to counterfeit.

(g) Polling station data personalization; In addition to having the candidates’ names, the forms 34A are personalized with the details of the polling station’s name and code, ward name and code, constituency name and code and the county name and code. This curbs the misuse of forms at different stations and minimizes manual entry of information by officials at the polling stations.

(h) Self – carbonating element; Forms 34A bear this aspect thereby restricting manual entry of data on the form 34A to only once and consequently enhancing accuracy and verifiability of the results.

(i) Barcodes; The Forms 34B and Form 34C are printed with barcodes which identify the tallying center by showing the county codes and constituency codes, therefore ensuring quick identification and verification of results.

216. THAT security features were also incorporated in the ballot papers used in the 8th August 2017 election all in an effort to ensure that the elections were free and fair. For example, each ballot paper included different colour coding of the background of each ballot paper for the six (6) elections. Each ballot paper when examined visually contained a different colour. Specifically the commission used different background colors for each election to wit:-

a. Presidential-Plain white.

b. Member of National Assembly-Green colour.

c. Senator ballot paper-Yellow colour.

d. Member of County Assembly-Brown colour.

e. County woman member of national assembly-Purple colour.

f. Governor-Sky Blue Colour.

217. THAT in addition to the colour coding, similarly as in the statutory declaration forms, each ballot paper incorporated a guilloche pattern, generic watermark, anti – copy feature, embossment, UV sensitive security, tapered serialization and tapered UV serialization to prevent duplication, misuse, piracy, fraud, counterfeiting and to improve controls.

218. THAT the security features incorporated on the results declaration forms and the ballot papers would enable the commission detect a counterfeit statutory form or ballot paper and discharge its constitutional mandate of conducting secure and verifiable elections.

219. THAT in addition to incorporating the security features, the Commission went a step further to instruct that all ballot papers need be stamped before they are issued to a registered voter to cast his/her vote. This was an extra measure initiated by the Commission with a view to ensure that the electoral process was secure. However, the absence of a stamp does not by itself speak to the authenticity of or invalidate the ballot paper.

220. THAT I confirm that all the Form 34A’s received by the Commission at the National Tally Center had all the above mentioned security features.”

 

THE DISSENTING JUDGMENT OF JUSTICE J.B. OJWANG

A. BACKGROUND

[1] So proximate to the moment of delivery of the Supreme Court’s decision in this pivotal case, did I learn that I fell on the minority side. By the Constitution, the timeline for hearing and determination was below a fortnight, and so, full versions of the Judgment had to come later. My summarized dissent, thus, grasped only the compelling elements of the case. Today, I have the opportunity to set out my opinion in detail.

[2] The question before the Court was whether the Presidential election, conducted under one and the same electoral process with five other sets of election (for Senate; National Assembly; County Governors; Women’s Representatives; and County Assemblies), had been so compromised by operational irregularity and illegality, as to compellingly attract Orders of annulment.

[3] I learnt that the majority on the Bench had come to the unreserved resolution that the Presidential election was a nullity, and that the electorate must return to the polls. Such a position was thus summarized:

“(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles, 10, 38, 81 and 86 of the Constitution, as well as Sections 39(1C), 44, 44A and 83 of the Elections Act, the decision of the court is that the 1^st Respondent failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.

“(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the 1^st Respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of the 3^rd Respondent.

“(iii) As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.”

[4] Having taken such standpoints, the majority proceeded to strike down the Presidential-election outcome, ordering as follows:

“(i) a declaration is hereby issued that the Presidential Election held on 8^th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;

“(ii) A declaration is hereby issued that the 3^rd Respondent was not validly declared as the President elect and that the declaration is invalid, null and void;

“(iii) An order is hereby issued directing the 1^st Respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination under Article 140(3) of the Constitution.”

[5] Thus, vital issues turning upon the democratic principle, issues of the terms and essence of the Constitution, of the statute law, and of the judicial mandate in the interpretation and crystallization of functional dimensions of the legal process, had been so cursorily dispatched – maybe in answer to policy objects, or to political persuasions, or to other general, social calls. For me, as an experienced lawyer and Judge, but more particularly, as a dedicated legal scholar, such an approach to contentious matters did short shrift to the firm and principled, normative configuration of the law and the legal process – elements which alone, would temper the motions of the social and political order, and ensure that the mechanisms of governance remain attuned to the ideals of civilized process.

[6] I will, in this Judgment, examine the foregoing dimensions of law with greater focus, after adverting to the pertinent issues and evidence in the whole case.

B. MAIN CAUSE AND PRELUDE

(a) Prelude

[7] The petitioners were the Presidential and Deputy-Presidential candidates of the National Super Alliance [NASA] coalition of parties, and were running on the Orange Democratic Movement Party [ODM] and the Wiper Democratic Movement Party tickets, respectively.

[8] The 1^st respondent is the Independent Electoral and Boundaries Commission [IEBC], an independent agency established under Article 88, as read with Articles 248 and 249 of the Constitution of Kenya, and the Independent Electoral and Boundaries Commission Act, 2011 (Act No. 9 of 2011) [the IEBC Act]. The 1^st respondent bears the mandate of conducting and/or supervising referenda and elections for any elective body or office established under the Constitution, as well as any other elections provided for under the Elections Act, 2011 (Act No.24 of 2011).

[9] The 2^nd respondent is the chairperson of the 1^st respondent – and bears the mandate under Article 138(10) of the Constitution, to declare the outcome of the Presidential election, and to deliver written notification of the same to the Chief Justice and to the incumbent President. The 3^rd respondent is the incumbent President, who was the candidate of the Jubilee Party, and who was declared the winner in the elections, on 11^th August, 2017.

[10] The petitioners are aggrieved with the mode of conduct of the Presidential election of 8^th August, 2017. They contend that the said election was conducted, administered and managed improperly by the 1^st respondent, and that such mismanagement was deliberate and systematic, and having the effect that there was failure of compliance with the governing principles prescribed under Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution; with the Elections Act; with the Regulations made thereunder; with the Electoral Code of Conduct; and with other relevant provisions of the law. The petitioners call for the invalidation of the 2^nd respondent’s declaration of the 3^rd respondent as the duly elected candidate.

[11] The prelude to the main cause is marked by a set of preliminary applications. These, and the Court’s determinations, may be enumerated in summary form:

(i) an application by the petitioners dated 25^th August, 2017 – seeking an Order for the 1^st respondent to give the petitioners direct access to data and information; this elicited the Order that the 1^st respondent do grant the petitioners, as well as the 3^rd respondent, a ‘read-only access’, with copying if necessary, for certain items of data; the Court also ordered its Registrar to give supervised access to certified copies of original voting-record Forms 34A and 34B, to the petitioners and 3^rd respondent; the Registrar being required to file a report on the exercise by 29^th August, 2017 at 5.00 p.m.; parties to make submissions thereupon; the Court also designated an information and communication technology (ICT) officer from its staff, as well as independent ICT experts – to oversee the required access to the dissemination technology applied during the election;

(ii) an application by the 3^rd respondent, dated 25^th August, 2017 and seeking to strike out from Court record such documents as were not served out timeously; this was refused by the Court, on the premise that, in the interests of justice to all parties, its inherent jurisdiction favoured retaining the documents and annexures in question; and, to safeguard the applicant’s right to fair hearing, the Court directed that the documents and annexures in question be served upon the 3^rd respondent;

(iii) an application by the petitioners, dated 26^th August, 2017, seeking to strike out documents filed by the 1^st, 2^nd and 3^rd respondents, which had not been served upon counsel for the petitioners: this was dismissed, on grounds that if granted, it would terminate the entire case for the 1^st, 2^nd and 3^rd respondents at this preliminary stage – and this would derogate from the interests of justice;

(iv) an application by 1^st respondent, dated 26^th August, 2017 and seeking Orders to expunge from the record documents filed out of time, which had the effect of raising a fresh cause of action, apart from carrying additional evidence: this was disallowed, on the basis that the question related to an application already before the Court;

(v) an application dated 21^st August, 2017 by Information Communication Technology Association of Kenya for joinder as amicus curiae: this was dismissed, on the basis that it fell short of the applicable standard for admission;

(vi) an application dated 21^st August, 2017 by Mr. Ekuru Aukot, one of the Presidential election candidates, seeking joinder as interested party: this was allowed, on the basis that the applicant had a personal stake in the outcome of the petition;

(vii) an application dated 23^rd August, 2017 by Mr. Michael Wainaina Mwaura, who had been a Presidential election candidate, seeking joinder in some capacity – respondent, amicus curiae, or interested party: this being allowed (for interested party), on the basis that he had a personal stake in the outcome of the petition;

(viii) an application by Mr. Aluoch Polo Aluochier, dated 23^rd August, 2017, seeking joinder as interested party: this being disallowed, on the ground that the applicant failed to meet the requisite legal threshold;

(ix) an application by Mr. Benjamin Barasa Wafula dated 24^th August, 2017 seeking joinder as interested party: this being disallowed, for failure to meet threshold requirements;

(x) an application by learned counsel, Mr. Charles Kanjama, dated 25^th August, 2017 seeking joinder as amicus curiae: this being disallowed for failure to meet threshold standards;

(xi) an application by the Law Society of Kenya dated 25^th August, 2017, seeking joinder as amicus curiae: this being allowed, on the basis that the legal threshold was satisfied;

(xii) an application by the Attorney-General dated 25^th August, 2017 seeking joinder as amicus curiae: this was allowed.

(b) Main Cause: Issues and Contentions

[12] It was the petitioners’ contention that, during the Presidential election, being part of the General Election of 8^th August, 2017, certain management improprieties came to pass, which affected the registration of voters, the votes cast, the vote count.

[13] One of the allegations related to the category of votes described as “rejected votes”, said to have constituted 2.6% of the total votes cast. The issue being raised in this regard, came alongside a contention that an earlier decision of the Supreme Court, in Raila Odinga v. Independent Electoral and Boundaries Commission and Others, Sup. Ct. Petition No. 5 of 2013, should be reversed: insofar the Court had in that case held that “spoilt votes” are not to be taken into account, in computing the 50% +1 vote-strength threshold for determining the winner in a Presidential election.

[14] Such a claim is founded upon a desired legal yardstick, rather than on the prescribed, and operative law. The petitioners contended that the Supreme Court in the earlier case, had “improperly” arrived at its legal threshold, because it had been influenced by a dissenting opinion in a comparative case-citation noted by this Supreme Court – which by Kenya’s Constitution (Article 163(7)), is the ultimate judicial authority, and “[a]ll courts, other than the Supreme Court, are bound” by its decisions. The petitioners were invoking the case from Seychelles, Popular Democratic Movement v. Electoral Commission, Constitutional Case No.16 of 2011; they were urging that the majority stand in that case should determine this Supreme Court’s position as regards “spoilt votes” in the electoral process: and that in that context, there was an impropriety in the Presidential-election vote-count, following the election of 8^th August, 2017.

[15] The petitioners contended that the conduct of the Presidential election of 8^th August, 2017 had contravened the principle of free and fair election under Article 81(e) of the Constitution as read with Section 39 of the Elections Act, and the applicable regulations.

[16] The burden of the petitioners’ case lies on the process of relaying and transmitting voting records from polling stations to constituency tallying centres and the National Tallying Centre: they questioned this process as falling short of standards on simplicity, accuracy, verifiability, security, accountability, transparency, promptitude. They contended that such shortcomings had compromised the principle of free and fair elections in terms of Article 81(e) (iv) and (v) of the Constitution. The petitioners attributed impropriety to the electoral process on a plurality of grounds, such as that:

(i) the data and information recorded in Forms 34A at the individual polling stations had not been accurately and transparently entered into the electronic KIEMS kits, at the individual polling stations;

(ii) there had been non-compliance with the requirement that KIEMS kits be accompanied by an electronic image of the prescribed forms, as these were transmitted to the National Tallying Centre; and this was in contravention of Regulation 87(3) of the Elections (General) Regulations;

(iii) the 1^st respondent had pre-determined the results of the Presidential election, and was therefore not impartial, neutral and accountable as required by Article 81(e) (v) of the Constitution;

(iv) the declared results were not verified in more than 10,000 polling stations, and the data entered in the electronic kits was not consistent with the information in the Forms 34A;

(v) the information in Forms 34A was not consistent with that in Forms 34B, and the figures were not accurate and verifiable;

(vi) the computation and tabulation of the results in a significant number of Forms 34B was not accurate, verifiable and internally consistent;

(vii) the results, recorded in the 1^st respondent’s Forms 34B were materially different from those relayed, and relayed again, as at the time of filing on its website;

(viii) the 1^st respondent had espoused a false narrative and national psyche, as the stage for stealing the election on behalf of the 3^rd respondent – by allowing the electronic media and the news channels to relay and continue relaying its results-data, which lacked a legal or factual basis; and

(ix) at the time of declaration of election result, the 1^st respondent was not in possession of Forms 34B, and did not publicly display the same for verification.

[17] The petitioners contended that the Presidential election was not impartial, neutral, efficient, accurate and accountable as required under Article 81(e)(v) of the Constitution, as read with Sections 39, 44 and 44A of the Elections Act and Regulations made thereunder, and Section 25 of the IEBC Act; and that there were instances in which vote-count had been distorted, manipulated, or inflated in favour of the 3^rd respondent. The petitioners asserted that it was impossible to determine who had won the Presidential election, or whether the threshold for winning the election was met.

[18] The petitioners contended that there had been a deliberate failure in operational transparency, and that the respondent had disregarded the decision of the Court of Appeal in Independent Electoral and Boundaries Commission v. Maina Kiai, Civ. Appeal No. 105 of 2017, by failing to electronically collate, tally and transmit accurate results, and by declaring results by county, rather than by polling stations.

[19] The petitioners contended that the 1^st respondent had allowed the transmission and display of unverified provisional results, contrary to law; that the 1^st respondent had also posted contradictory results in Forms 34A and 34B; and that there were internal contradictions in Forms 34A. They contended that the 1^st respondent had declared final results on 11^th August, 2017 even before receiving results from all polling stations, and had allowed more than 14,000 defective forms from polling stations – with the outcome of distorting more than 7 million votes. The petitioners contended that the 1^st respondent had colluded with the 3^rd respondent to eject their legitimate agents from various polling stations in Central and Rift Valley regions. On the basis of such allegations, the petitioners contended that the 1^st respondent had abdicated its responsibility for ensuring a transparent and an impartial voting process, apart from corrupting the process of transmission of results.

[20] The petitioners contended that the 1^st respondent had failed to adhere to the Constitution, rule of law, Court Orders and decisions – and that such a condition rendered the processes of the Presidential election, the transmission of results, and the final outcome, a nullity, as it lacked integrity, fairness and transparency.

[21] The petitioners contended that there had been a violation of Article 86 of the Constitution, and that the votes cast in a significant number of polling stations were not counted, tabulated, and accurately collated as required under Article 86(b) and (c) of the Constitution, as read with the Elections Act. They contended that the results recorded in Forms 34A differed from the results shown in the 1^st respondent’s Forms 34B and displayed in the 1^st respondent’s website; and they asserted that the 1^st respondent’s Forms 34B were inaccurate, bearing statistical manipulation to favour the 3^rd respondent.

[22] The petitioners contended that the 1^st respondent had acted contrary to the terms of Articles 38, 81 and 86 of the Constitution as read with Sections 39(1c) and 44 of the Elections Act and the Regulations thereunder, as well as Section 25 of the IEBC Act.

[23] The petitioners contended that, contrary to Regulation 7(1)(c) of the Elections (General) Regulations, the 1^st respondent had fraudulently established secret and ungazetted polling stations, wherefrom vote-count results were added to the final tally, thereby undermining the integrity of the Presidential election.

[24] The petitioners contended that a significant number of Forms 34B had been executed by persons not gazetted as Returning Officers, and not accredited as such by the 1^st respondent – and that such election results as were carried in such forms were invalid. They contended that all returns submitted without IEBC’s official stamp, or which did not bear the signatures and particulars of Returning Officers and agents, were invalid.

[25] The petitioners averred that the returns used in a material number of polling stations were not in the prescribed Forms 34A and 34B, contrary to Regulations 79(2) (a) and 87(1)(a), and that the Forms 34B bore fatal irregularities affecting 14,078 polling stations out of the established 25,000. They contended that a number of the forms and returns were not signed; that some did not show the name of the Returning Officer; that some did not bear the IEBC stamp; that some Forms 34A and 34B did not bear the signatures of candidates’ agents, nor the reason for lack of signature; that some were signed by the same presiding officer serving at different polling stations.

[26] The petitioners contended that the 1^st respondent had violated their rights under Article 35(2) of the Constitution, by putting up inaccurate information which misled the general public. They also asserted that the Presidential election was compromised by intimidation and improper influence, or corruption, contrary to Article 81(e)(ii) of the Constitution as read with the Elections Act, and Regulations 3 and 6 of the Electoral Code of Conduct.

[27] On the basis of the foregoing contentions, the petitioners formulated certain specific issues for the Court’s determination:

(i) whether the Presidential election was conducted in accordance with the Constitution;

(ii) whether the Presidential election was conducted in accordance with the written law;

(iii) whether the 1^st respondent’s non-compliance with the Constitution and/or the law, affected the result of the Presidential election;

(iv) whether the 1^st respondent’s non-compliance with the Constitution and/or the law affected the validity of the result of the Presidential election;

(v) whether the non-compliance, irregularities and improprieties affected the validity of the results of the Presidential election;

(vi) whether the non-compliance, irregularities and improprieties affected the result of the Presidential election;

(vii) whether the exclusion of 2.6% of the total votes cast, as “spoilt votes”, substantially affects and/or invalidates the count and tally of the Presidential-election votes;

(viii) whether the total number of verified, “rejected votes” should be considered in ascertaining the attainment by any candidate, of the constitutional threshold;

(ix) whether the 3^rd respondent was validly declared as President-elect;

(x) whether the said 3^rd respondent committed election irregularities;

(xi) what are the appropriate Orders to be issued by the Court.

(c) What is the Evidence?

[28] The various contentions and averments, as a matter of vital judicial methodology, are to be lighted up by objective evidentiary account. I will now consider the scope of validation for the petitioners’ cause, coming forth by way of their main body of factual testimony.

[29] The 1^st petitioner, Mr. Raila Amolo Odinga, tendered evidence by his affidavit of 18^th August, 2017 which also represented the stand of the 2^nd petitioner. He deponed that he had been a Presidential election candidate, duly nominated by the NASA coalition.

[30] The 1^st petitioner deposed that the 1^st respondent, acting through presiding officers, undertook the vote-count which culminated in the declaration of the 3^rd respondent as President on 11^th August, 2017, with 8,203,290 votes, as against the deponent with 6,762,224 votes. The deponent was aggrieved with the declaration, as he believed the Presidential election to have entailed breaches of the Constitution and the applicable laws – such breaches arising before polling day, as well as during the processes of tallying and transmission of results.

[31] The deponent stated his belief, that the Presidential election failed to meet the constitutionally-prescribed terms that require “free, fair, transparent, accountable, credible and/or verifiable elections.” He deposed that the IEBC had “deliberately and/or negligently compromised the security of the integrated electoral management system (KIEMS)”, and thereby exposed it to unlawful interference by third parties. He deponed that the collation, tallying, verification and transmission of the Presidential-election results had been compromised by procedural flaws and illegalities, upon such a scale as substantially qualified the credibility of the declared result. He averred that the poll results as declared, were substantially at variance with the actual results tallied and declared at the gazetted polling stations. He deponed that the 3^rd respondent, in concert with Cabinet Secretaries and others serving under the charge of the 3^rd respondent, had abused their positions, by bringing their influence and pressure to bear upon the potential voters.

[32] The deponent averred that, while the 1^st respondent had acted by virtue of Section 44 of the Elections Act, and developed the Elections (Technology) Regulations, 2017, under which the KIEMS system had been set up for the management of elections, the failings in the conduct of the Presidential elections had now undermined the security of the electoral system, exposing it to third-party interference. He deponed that the said electronic system had been misapplied, with the effect that the Presidential election was substantially conducted by manual processes. As an instance in that regard, the deponent averred that the 1^st respondent acted contrary to law by failing to transmit electronically the vote-count results from the polling stations and the constituencies – with the consequence that the transmission process was now exposed to unlawful manipulation. He averred, in that context, that the consequential delay in transmitting election results with the prescribed forms, gravely affected the credibility and validity of the results.

[33] The deponent averred that a review of the election results, in relation to the available Forms 34A and 34B, had shown substantial qualitative anomalies, such as put into question the credibility of the Presidential election.

[34] The deponent averred that the 3^rd respondent was guilty of undue influence, bribery, inducement and intimidation in relation to the free exercise of elective preference by the voters. In this regard the deponent averred that the 3^rd respondent had, on 2^nd August at Makueni, issued threats to those chiefs who did not mount political campaigns in his favour; that Cabinet Secretaries had actively campaigned for the 3^rd respondent; that the 3^rd respondent had taken decisions involving public resource-deployment, in such a manner as to benefit his political campaign.

[35] Another deponent, Ms. Oichoe, averred that she was a cyber security expert, and had observed and followed the conduct of the 8^th August 2017 General Election – in particular, the process of vote-count results transmission. The process, as she averred, entailed six primary scenarios in respect of which IEBC’s operational systems and data base has to be tested. The first of these is confidentiality: this requires that information should only be accessed by authorized persons; the confidentiality of sensitive information is to be secured. Secondly, integrity: information used should be accurate, complete, protected from unauthorized modification – by authorized or unauthorized persons. Under this scenario, it was the deponent’s averment that non-authenticated results had entered the IEBC’s public portal – and so, this should raise questions as to the integrity of the data. The third element, availability, required that data systems be available when required by persons authorized to use them – and access thereto is to be in compliance with the terms of Articles 35 and 47 of the Constitution, and Section 44(b) of the Elections Act as read with Section 4 of the Access to Information Act, and Regulation 15(4) of the Elections (Technology) Regulations, 2017. She deponed that during the August 8, 2017 General Election, the voters’ register had not been made available on request, until the last moment when an Order of Court had been made in aid of such access. The deponent averred that the next feature of the data-base system was non-repudiation: an audit trial is to be maintained on activities occurring. This ensures that should someone have access to the information or data-base, a footprint is left; and a log should be maintained to facilitate tracing-back to source. It was her averment that it was emerging from the petition, that entry had been made into the data-base, and a strange return made in place of the statutory Form 34. She deposed that a strange book had been posted on the IEBC website, and that such a situation calls for explanation. She averred that since the statutory form for transmitting results is Form 34, the book posted in the website was “strange in law”. The fifth website scenario, in the deponent’s averment, is authenticity: the information itself, as well as its source, is to be shown to be genuine – this being attributable to Section 44B of the Elections Act. The deponent averred that, on the date of declaration of election results, only 29,000 Forms 34A were available, and the declaration was made on the basis of forms of questionable authenticity. Her last, essential data-base feature was privacy: Section 55A as read with Section 44B of the Elections Act contemplates privacy and security of data; and so, the deponent averred, if it is proved that IEBC failed to secure its data and its public portal, then it would be necessary to have an audit of all its systems.

[36] Another deponent, Mr. Koitamet Ole Kina, averred that he was a duly accredited agent of the NASA coalition, in the General Election of 8^th August, 2017. He deposed that he had arrived at the IEBC co-ordination base, the Bomas of Kenya, on the election date at 16.30 hrs, for the purpose of activating his access card. Following some delay in activating the card, the deponent joined the company of fellow agents, and they witnessed the streaming-in of election results, which commenced at 17.15 hrs. Thereafter, he averred, his team came to learn that it was not possible to verify the result-announcements, as they came unaccompanied with hard copies of Forms 34A, or the soft copies from the server. The NASA team, being concerned, approached IEBC Commissioners (Professor Guliye and Ms. Roselyn Akombe) and the CEO, Mr. Ezra Chiloba, calling for Forms 34B as a basis of verification. As this initiative proved ineffectual, the deponent averred, the NASA agents demanded a meeting with the Commission, and obtained yet another fruitless promise of access to Forms 34A: these being received, with Forms 34B, only in limited numbers, on 11^th August, 2017.

[37] The deponent recorded his opinion, regarding the unreliability of the supply of Forms 34A and 34B by the IEBC, that this was evidence of a determination on the part of the Commission to declare results that could not be verified as required by law. The deponent drew on the content of another affidavit, by Dr. Oduwo, and averred that dilatory responses to the demands for the said forms, showed the 1^st respondent’s announcements to have been misinformed, and/or based on information such as failed the test of verification, accuracy, transparency and credibility.

[38] Mr. Moses Wamuru, the NASA Presidential candidate’s chief agent and co-coordinator for Embu County, deponed that he and his agent-colleagues had not only been harassed, but kept out of the polling station by IEBC officials and officers of the Provincial Administration, for most of the election day. He deponed that he had been forced by the Constituency Returning Officer, to sign the election declaration form, as a condition for being availed a copy of the election results.

[39] Another deponent, Mr. Godfrey Osotsi, for Amani National Congress (of the NASA coalition of parties), averred that he was an ICT expert who had been an observer of the August election vote-tallying. This deponent deposed not upon settled fact, but urged this Court to order a system-audit: to trace transmissions so as to reveal the code used by IEBC for the more-than 40,000 polling stations; for the purpose of identifying the IEBC officers who used such codes to transmit election results; to establish the time and place where such transmissions were originated; and to identify the person who applied the special identifier to effect results transmission.

[40] The deponent also gave his opinion on matters of law: that under the Election Act, ‘election material’ includes systems such as are contemplated under Section 17(1), and include the Kenya Integrated Electoral Management System (KIEMS) – which incorporates voter registration, voter identification, and the results-transmission system.

[41] The deponent proceeds on that same line of averment: a declaration of results has to come in the wake of a transmission “in the right manner, as prescribed”, before reaching the National Tallying Centre. He rested his affirmations upon other deponents’ statements in support of the petition: as at the time of declaration of Presidential election results, only 29,000 Forms 34A had been received, and their authenticity still stood to be ascertained; and, election results could only be declared when the Commission was already in possession of all the Forms 34A and 34B.

[42] The deponent averred that IEBC either lacked full control of its system, or had ceded such control to some other authority.

[43] Another affidavit was sworn by Mr. George Kegoro, the executive director of the Kenya Human Rights Commission, a civil society agency committed to fostering and safeguarding human rights, democratic values, human dignity and social justice. He deponed that his organization serves as secretariat for an initiative known as Kura Yangu Sauti Yangu (KYSY), which is wholly devoted to the cause of fair elections during Kenya’s 2017 election cycle. He averred that KYSY had deployed some 500 agents in all the 290 constituencies, to observe and monitor the electoral process: and KYSY had found contradictions and anomalies in the election data emanating from IEBC, especially in relation to the Presidential votes as reflected on the IEBC website.

[44] An agent of the NASA coalition, Ms. Olga Karani, deponed that, concerns had been expressed by members of the public, about anomalies and irregularities in the vote tallying process – such anxieties also coming from the election candidates, as well as NASA agents. She averred that the prescribed election forms were manually availed to the National Tallying Centre, though sometimes they were also displayed on the IEBC website. It was her belief that it was impossible to verify the authenticity of such forms. She deponed that, by the time of announcement of the election results, the Commission had neither collated, nor availed any of the Forms 34B, nor had it responded to outstanding issues regarding Forms 34A, or to the questions being raised about results posted on the website. She attributed lack of transparency to the actions taken by the 1^st respondent.

[45] Another deponent, upon whose averments several of the petitioners’ witnesses relied, was Dr. Nyangasi Oduwo. He deponed that on 8^th August, 2017 at 5.07 p.m., some 10 minutes after the closure of the polling stations, the 1^st respondent started streaming results for the Presidential election. He averred that such announcements of results had maintained a constant gap of 11% between the vote-count for the 1^st petitioner and the 3^rd respondent – notwithstanding the random distribution of the constituency-locations. His averment expressed suspicion also on the basis that, as he perceived it, in numbers of polling stations within the central Kenya and Rift Valley regions, the petitioner’s agents were “chased away” from the stations, and “replaced by imposters”, and thereafter presiding officers were “caused to record fictitious results in favour of the 3^rd respondent.”

[46] Dr. Oduwo averred that, upon being asked by the petitioner to examine 5000 Forms 34A, supplied by presiding officers to the 1^st petitioner’s agents across the country, and to compare these with Forms 34B supplied by the 1^st respondent and Forms 34A posted on the 1^st respondent’s website, he found discrepancies.

[47] Dr. Oduwo made averments embodying opinion in clear terms. He asserted that the 3^rd respondent and the Deputy-President, who were candidates in the Presidential election, were guilty of corruptly influencing voters in the run-up to the General Election of 8^th August, 2017. He averred that the election was compromised by instances of undue influence, inducement, bribery and intimidation. The deponent, in a second affidavit, avers that certain anomalies had compromised the said election, instances being: forms marked with a rectangular, rather than an official, circular stamp; Returning Officers failing to sign Forms 34B, or recording their own names; lack of handing-over notes; discrepancies in numbers of valid votes; unstamped forms; corrected figures noted on forms; agents not signing statutory forms; discrepancies in vote-tally.

[48] Discrepancy in vote-tally records was also the subject of averments by Mr. Benson Wasonga, who deponed that the IEBC’s summation of valid votes was 15,179,717 – with the 1^st petitioner having 6,821,505; the 3^rd respondent having 8,222,862; and the total rejected votes being 477,195; as compared to the IEBC portal showing as total votes cast, 15,180,381, 1^st petitioner’s vote as 6,821,877, 3^rd respondent’s vote as 8,223,163, and rejected votes as 403,495. These figures, it was deponed, varied from the specific figures (Form 34C), that were issued at the time of declaration of the 3^rd respondent as the leading candidate: total valid votes, as 15,114,622; 1^st petitioner’s votes, as 6,762,224; 3^rd respondent’s votes, as 8,203,290; total rejected votes, as 81,685. The deponent deposed that the actual variation in the rejected votes, as between the IEBC’s summation of the results, and the display on the portal, was 73,700 votes; and he averred that this differential amounted to violation of the electoral law, to the prejudice of Presidential candidates other than the declared winner.

[49] The petitioners called two more witnesses, one of these being Mr. Mohamed Noor Barre, from Mandera County in the north of the country. He deponed that while he had been trained, and sworn to serve as presiding officer in the elections, the local IEBC office had informed him on 7^th August, 2017 that he had been replaced by a different person. His averment was that the electoral process at his station had been conducted by ‘strangers’ as presiding officers.

[50] It is the same with Mr. Ibrahim Mohamud Ibrahim, also from Mandera, who deponed that although he had been appointed, training and sworn-in as presiding officer, he had been called to the local IEBC office on 7^th August, 2017 and informed that his place had been taken up by a different person. He deponed that the elections which took place on the following day, had been conducted by “strangers”, acting as presiding officers.

C. THE OTHER SIDE: RESPONDENTS’ ANSWER

(a) Introduction

[51] Judicialism, the established framework for relieving the all so-frequent grievances, conflicts, frays and tensions in the social order, has evolved as a civilized tradition of durable rules and methods of accommodation. Such methods have their objectivity and rationale, lodged within the discipline of law, which, as will become evident in this Judgment, is the domain not of the most open-textured manifestations, nor the most elementary political suasions – but of jurisprudence, as methodical reasoning, of a normative and professional category.

[52] The established judicial method, which rests on the singular dependability of the fact-base, and which vindicates the principles of fairness, objectivity and legitimacy – is to entertain the account from the other side; and thereafter, to weigh, check and balance the two streams of evidence, thereby arriving at a valid and just result.

[53] As I express this introductory perception, so as to shed more light on the instant matter, I admit my debt to legal scholarship; with Andrew Goodman in his learned work, How Judges Decide Cases: Reading, Writing and Analysing Judgments, 2^nd Indian Reprint (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009), in which he observes (p.44):

“However rarefied and abstruse the legal argument before the [Court], it must be anchored on the facts of the case: while the judges will feel free to expound upon the most general principles in order to provide guidance for the future, the actual decision…will turn on the facts, even if the detail of the argument is quite remote from them” [emphases supplied].

[54] Such is a fundamental principle, invariably observed in the practice and application of law in this country, as in other countries, the constitutional and judicial systems of which have benefited from the integrity of the common law tradition. And such an approach is certain to lead to a fair, dependable and plausible basis of judgment, as well as set a just and tenable reference-point for the future.

(b) Issues and Contentions

[55] It was the 1^st and 2^nd respondents’ assertion that the 3^rd respondent, in the Presidential election of 8^th August, 2017 had garnered the largest number of votes, and had satisfied the constitutional threshold prescribed in Article 138(4) of the Constitution, apart from complying with the terms of the applicable statute law. They denied the petitioners’ claims of non-compliance with the terms of Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution as well as other applicable laws, asserting that all such claims of non-compliance were couched in bare generalities, and were devoid of any factual basis.

[56] The 1^st and 2^nd respondents stated that the conduct of the Presidential election had been attended with an elaborate management system, guided by all relevant electoral laws, and safeguarded by definite safety measures for assuring transparency, accountability and verifiability, in terms of Articles 81 and 86 of the Constitution.

[57] The 1^st and 2^nd respondents stated that they had duly verified, and accurately tallied the election results for all candidates, before declaring the outcome, in accordance with Article 138(10) of the Constitution, and duly taking into account the terms of the recent Court of Appeal decision in IEBC v. Maina Kiai and 4 Others, Civ. App. No.105 of 2017 [which relates to vote tallying]. They denied the petitioners’ claims, that they had conducted the electoral process in a manner that prejudiced the sovereign will of the voters, and that they had only delivered “preconceived and predetermined, computer-generated leaders.”

[58] The 1^st and 2^nd respondents denied the petitioners’ allegation, that the number of “rejected votes” in the Presidential election had been as much as 2.6% of the total votes cast, stating that such votes, as declared in Form 34C, constituted only 0.54% of the votes cast.

[59] The 1^st and 2^nd respondents contested the petitioners’ claim that the right principle to guide this Court, in respect of the treatment of “rejected votes,” should be that preferred by the Seychelles Supreme Court, in Popular Democratic Movement v. Electoral Commission, Const. Case No. 16 of 2011, rather than this Court’s established precedent in Raila Odinga v. Independent Electoral and Boundary Commission & Others, Pet. No. 5 of 2013. The respondents’ stand was that “rejected votes” had been rightly excluded from the count of “votes cast,” by this Court.

[60] The respondents stated that the process of relay and transmission of results, from the polling stations to the constituency tallying centre and the National Tallying Centre, had been simple, accurate, verifiable, secure, accountable, transparent and prompt.

[61] The 1^st and 2^nd respondents stated that the Presidential election had been conducted in a manner that was free, fair, and in accordance with the Constitution; a manner that gave fulfilment to the sovereign will of the voters. The respondents urged that in these proceedings, two basic questions fell for determination, namely:

(i) whether the 3^rd respondent was validly elected and declared as President-elect by the 2^nd respondent;

(ii) what consequential declarations, Orders and reliefs the Court should grant.

They asked the Court to find, with regard to the two questions, that –

(i) the respondents had not contravened the provisions of the Constitution, the Elections Act, or any other statute;

(ii) the presidential election was conducted in accordance with the Constitution and the Elections Act, and all other relevant statutes, and a valid declaration of the outcome duly made;

(iii) the 3^rd respondent was validly elected as the President of the Republic of Kenya;

(iv) the people of Kenya exercised their sovereign power of the vote, and their decisions should be respected;

(v) the petition lacks merit, and should be dismissed;

(vi) the petitioners should bear the costs of the petition.

(c) Evidentiary Statements

[62] The 2^nd respondent, in his affidavit sworn on 24^th August, 2017 deponed that he had been the Returning Officer for the Presidential election of 8^th August, 2017. He averred that neither he nor the 1^st respondent had any private stake in the election outcome, and that they had been neutral referees – their sole mandate being to provide the electoral structure for the voters to exercise their sovereign will, by electing leaders of their choice.

[63] The deponent averred that, a tally of all the votes had shown Uhuru Kenyatta to have garnered 8,203,290 votes, followed by Raila Odinga, the 1^st petitioner herein, who garnered 6,762,224 votes. The declared results were expressed in Form 34C, which was itself abstracted from forms 34B, forwarded to the National Tallying Centre from the constituency tallying centres, as well as the diaspora vote-tallies.

[64] The deponent averred that, in view of the election-management infrastructure that was in place, the primary results-declaration forms (Forms 34A and 34B) were by no means compromised, in their accuracy and overall integrity. These forms had been transmitted through the KIEMS electronic system, in a scanned format, secured by non-replicable features. The security features, he averred, included anti-photocopy and self-carbonated elements, up to a span subsuming six copies.

[65] He deposed that the presiding officers at the 40,883 polling stations were required to scan, and electronically transmit the original Forms 34A to both the constituency tallying centres and the National Tallying Centre. The constituency tallying centres for their part, were required to relay the Forms 34B to the National Tallying Centre, for the purpose of tallying: and so, for the Presidential election, the results could be verified by reconciling the figures in Forms 34A.

[66] The deponent averred that, his dedicated task in the said electoral process was to provide policy leadership, and strategic direction, to ensure that the Commission’s infrastructure for election-management, was accountable, efficient, systematic and methodical.

[67] He deposed that, though afflicted by challenges occasioned by a multiplicity of suits against the Commission, it still ensured that the procurement of electoral materials, by the secretariat, was done in a transparent and timely manner; and that other electoral processes, including supportive technological systems, were deployed in a manner consistent with the constitutional and legal requirements of simplicity, accuracy, verifiability, security, transparency and accountability.

[68] The deponent averred that, all due arrangements had been made by the Commission, in aid of the electoral process of 8^th August, 2017 – noting in particular the following aspects:

(i) voter education had been conducted throughout the country;

(ii) staff training, for the management of elections, had been duly carried out;

(iii) all the polling stations had been duly gazetted;

(iv) the register of voters had been duly audited and uploaded in the Commission’s website (https://www.iebc.or.ke/iebcreports), and hard copies printed and posted at conspicuous sites at each polling station;

(v) mechanisms were put in place to facilitate the observation, monitoring and evaluation of the elections, in compliance with the terms of Article 88(4) of the Constitution;

(vi) the procurement and distribution of strategic and non-strategic election materials was duly completed;

(vii) as required by Article 10 of the Constitution, the Commission had held many consultative meetings with key stakeholders, including – quite significantly – political parties: to update them on the progress made on all fronts, in relation to the 8^th August, 2017 elections;

(viii) the Commission had duly complied with the recent decision of the Court of Appeal in the Maina Kiai Case, on the conditions attending the tasks of: vote-counting; tallying; verification; and declaration of Presidential-election results at the constituency level, and at the National Tallying Centre.

[69] The deponent averred, in the light of the foregoing safeguard-measures taken, that, it was not true as alleged by the petitioners and their witnesses, that the Commission presided over a shambolic Presidential election, or that the entire electoral process was a failure, or that the election entailed breaches of the Constitution and the applicable laws relating to vote-tallying, and to the transmission of results.

[70] The deponent averred that the Presidential election had met all the requirements of free and fair elections, having been conducted by way of secret ballot; being free from violence, improper influence or corruption; having been administered in a dedicated process conducted exclusively by the Commission; having been transparently conducted; and having been administered in an impartial neutral, efficient, accurate and accountable manner.

[71] The deponent, on the course of action which he took following the elections, signalled his authority as emanating from Article 138(10) of the Constitution: he is mandated, within seven days following the election, to declare the result as set out in Form 34C, and to deliver written notice of the same to both the Chief Justice and the Incumbent President. He averred that, throughout the electoral cycle, he had discharged his mandate in perfect accord with the Constitution, the electoral laws, and the applicable regulations. He averred that in the discharge of his obligations at election time, he had not been influenced by anyone, and had maintained the required standards of professionalism.

[72] The deponent deposed that he had conducted and supervised the election in accordance with the terms of Article 81(e) of the Constitution, and that in this respect, several elements in his discharge of duty stand out, namely:

(i) every registered voter who participated in the General Election, had cast his or her vote by way of secret ballot;

(ii) polling stations were adequately secured by the police, to ensure that the electoral process was free from violence, intimidation, improper influence, or corruption;

(iii) the election was independently conducted by the Commission;

(iv) candidates and observers, were allowed to have their appointed agents at the various polling stations – to observe the voting process and to assure transparency;

(v) the said agents observed the closure of the voting process, and were involved in the counting of votes at the various polling stations, to bear witness to manifestations of transparency, impartiality, neutrality, efficiency, accuracy and accountability in the voting and vote-count; and

(vi) the agents of the Presidential-election candidates were given access to the various vote-recording forms, including Forms 34A and 34B – a further element in the 1^st respondent’s transparency and accountability.

[73] The deponent averred, as regards the transmission set-up during the electoral process, that the Commission’s staff managing the KIEMS gadgets, had been trained in good time, and the said gadgets had been configured with the register of voters. He averred that the KIEMS system was designed to allow for integration of the biometric voter registration, biometric voter identification, the electronic transmission of election results, and the political party, and candidate registration systems. He deposed that the said system had been successfully deployed on 8^th August, 2017, and that it had significantly improved efficiency, effectiveness and accuracy in the operation of the electoral process.

[74] The deponent averred that he was present at the National Tallying Centre between 8^th and 11^th August, 2017, participating in the tallying and validation of Forms 34B that were being electronically transmitted by the constituency returning officers (and in this regard, he attached as evidence copies of Forms 34B, marked WWC-3). Upon receipt of these forms, he deposed, he had collated the same, and confirmed the consistency of the results, availing Forms 34B to the Presidential election candidates through their agents, for verification and confirmation. The deponent, thereafter, used the said results to tally and complete Form 34C, in compliance with Section 39(3)(b) of the Elections Act.

[75] The deponent makes specific averments on the vote tallies, as he received them on 11^th August, 2017; on this occasion he received 290 Forms 34B from the constituencies, as well as the tally of diaspora votes: and the Presidential election results were confirmed by the agents, the particulars thereof standing as follows:

Name of Candidate	Valid Votes	Percentage of Votes Cast	No. of Counties wherein Candidate had at least 25% of the Votes Cast
JOHN EKURU LONGOGGY AUKOT	27,311	0.18%	0
MOHAMED ABDUBA DIDA	38,093	0.25%	0
SHAKHALAGA KHWA JIRONGO	11,705	0.08%	0
JAPHETH KAVINGA KALUYU	16,482	0.11%	0
UHURU KENYATTA	8,203,290	54.27%	35
MICHAEL WAINAINA	13,257	0.09%	0
JOSEPH WILLIAM NTHIGA NYAGA	42,259	0.28%	0
RAILA ODINGA	6,762,224	44.74%	29

On the basis of these results, the deponent avers, he acted in compliance with Article 138(4) and (10) of the Constitution, and publicly declared the Presidential election outcome on 11^th August, 2017.

[76] The deponent averred that the Commission had found that, in a few of the results-declaration forms, there were certain errors – but that these were inadvertent, minor errors which had no effect on the vote-tally and outcome of the Presidential election. In support of the finding on the said errors, the deponent tendered in evidence a document marked WWC-5, attended with the detailed affidavit of Ms. Immaculate Kassait (1^st respondent’s Director of Voter Registration and Electoral Operations).

[77] Mr. Chebukati had specific averments to make in relation to certain depositions made on behalf of the petitioners. He deponed, in relation to the statement by Mr. Godfrey Osotsi, that, throughout the electoral process, the Commission had engaged the petitioners as well as the 3^rd respondent (in person, and through their representatives), the public, and interested stakeholders – for the purpose of adhering to best practices in electoral matters.

[78] The deponent, in departure from the testimony of Mr. Godfrey Osotsi, averred that the Commission was already in possession of all Forms 34B, at the time of declaration of the Presidential election results: and all the Forms 34B and 34C were availed to the candidates and their agents for verification, before the declaration of results; and all Presidential election candidates were allowed to visit the National Tallying Centre to verify the results, as from the commencement, up to the moment of declaration. He averred that he personally chaired many consultative meetings with the petitioners’ agents, whenever any issues of concern had been raised, even though for unexplained cause, the petitioners’ agents had decided to depart from the National Tallying Centre, just prior to the declaration of results.

[79] In response to the 1^st petitioner’s claim of “procedural flaws, illegalities and/or irregularities” in the collation, tallying, verification and transmission of Presidential election results, the deponent averred that tallying as conducted by the Commission, was in compliance with Articles 81(e) and 86 of the Constitution as read with Section 39 of the Elections Act; and he deponed that at every forum of results-processing, the petitioners were allowed to have their agents, to confirm the tallying, the announcement and declaration of results. He averred as well, that the electronic system of transmission of results was secure, prompt, verifiable and efficient. He deponent that all the results-declaration forms had been subject to verification by the candidates’ agents/representatives, and immediately thereafter, forwarded to the National Tallying Centre. The deponent further averred that the 1^st petitioner had deposed that he had been given access to the Forms 34B through his agents: and thus the charge of lack of transparency and accountability in the tallying process, was short on veracity.

[80] The deponent denied the 1^st petitioner’s assertion that IEBC had condoned voter intimidation, undue influence, bribery and/or flagrant electoral offences committed by the 3^rd respondent. He similarly denied the assertion by one of the 1^st petitioner’s witnesses, Dr. Nyangasi Oduwo, that the 3^rd respondent had been declared to be the winner without a verification of all the requisite documents. He averred that all the Presidential election candidates and their agents, or representatives, had been invited to verify the results, before declaration. And he deponed that he did not announce the final results of the Presidential election until he had received and verified the Forms 34B from the constituency tallying centres.

[81] The deponent averred that on 10^th August, 2017 the Commission received a letter of the same date from Mr. Orengo, the petitioners’ deputy chief agent, raising concerns about the Presidential election results; and the Commission internally considered the issues raised, before communicating its position by a letter of the same date (exh. WWC-6a and 6b). He averred that the declaration of Presidential election results on 11^th August, 2017 was done in full compliance with the terms of the Constitution, contrary to the averments of the 2^nd petitioner.

[82] The deponent averred that the petitioners’ allegation that the Commission had failed to take steps against the 3^rd respondent for breach of the provisions of the Election Offences Act, Section 14, was not true; for, on 21^st June, 2017 he had written to the Director of Public Prosecutions informing him of the alleged breach, and calling for his action. The Director of Public Prosecutions had responded by his letter of 6^th July, 2017 informing the deponent that he had directed the Director of Criminal Investigations to take action as appropriate (exh. WWC-7).

[83] Another affidavit was sworn by the 1^st respondent’s Chief Executive Officer, Mr. Ezra Chiloba (24^th August, 2017), who averred that the Commission had conducted the Presidential election on 8^th August, 2017 in accordance with the terms of the Constitution (Articles 81, 83 and 86), the Elections Act, and the applicable regulations.

[84] Mr. Chiloba testified that, despite the complex political and legal environment in the run-up to the General election of 8^th August, 2017, the 1^st respondent had managed to put in place an effective infrastructure, with appropriate mechanisms, for the conduct of a free, fair and credible election. He averred that the election was conducted in a transparent, open and accountable manner, and that the process was peaceful and credible – just as was confirmed by both local and international observers. (In this regard, he annexed as evidence a copy of the various observer reports – exh. EC-12).

[85] The deponent averred that the tallying and transmission of election results took place at the polling stations, where the vote-count was collated and declared at the constituency tallying centre, and at the National Tallying Centre. Results thus processed and accounted for, the deponent averred, were in every sense credible, and truly represented the will of the voters. He deposed that there had been no compromise to, nor interference with the system for the transmission of results – before, during, or after the declaration of the outcome of the Presidential election. He deponed that the collation, tallying and transmission of the results were in accordance with the terms of the Constitution, the Elections Act, and the Appellate Court’s decision in the Maina Kiai Case.

[86] Referring to the documentary evidence on record, the deponent deposed that the election results as declared, were substantially consistent with, and were a true reflection of, the actual results tallied and declared at duly-gazetted polling stations.

[87] Responding to the assertions in the 1^st petitioner’s affidavit, the deponent averred that the electoral law had been recently updated, with the enactment of the Election Laws (Amendment) Act, 2017, allowing a four-month period within which to procure and establish the Kenya Integrated Electoral Management System (KIEMS); and that there was no basis for the allegation that this new electronic system had been compromised through the practice of “hacking”, occasioning a distortion in the Presidential-election vote tallies. He denied the 1^st petitioner’s assertion that the 1^st respondent had failed to put in place the requisite measures to assure the credibility of the KIEMS system, and averred that the said system had served well in the identification of voters, and for results transmission. He further deponed that the Commission’s operations were not entirely dependent on KIEMS, as a complementary mechanism was provided for by law, in the event of any breakdown in the electronic mechanism.

[88] The deponent denied the petitioner’s assertion that the conduct of vote-tallying in the Presidential election had not been in accordance with the terms of Article 86 of the Constitution. He deposed that the election results had been transmitted from polling stations and constituency tallying centres, as required by law. Denying the petitioners’ statement that they were not supplied with Forms 34A and 34B, the deponent averred that the petitioners had indeed been supplied with all Forms 34A and 34B available on the public portal; and that by their own letter of 14^th August, 2017 the petitioners acknowledged being accorded access to all the requested forms. (The relevant correspondent in this regard is marked EC-15).

[89] To the petitioners’ assertions that the Forms 34A and 34B had certain anomalies, such as brought into question the credibility of the Presidential election, the deponent averred that the petitioners had not disputed the results as declared, but only alleged unsubstantiated qualitative anomalies.

[90] The deponent averred that all presiding officers had been trained by the Commission to take the image of Forms 34A, for transmission through KIEMS, though there were a number of instances in which they chose to take images of other documents; and the consequence, in view of the fact that one of the security features was the capturing of only one image for the six sets of elections, was that, it was the test documents, rather than the Forms 34A, that ended up being transmitted. Upon noting this error, the 1^st respondent uploaded the Form 34A for the affected polling stations, on the public portal. Such inadvertent transmission of wrong images, the deponent averred, did not affect the election results as contained in Forms 34A. (He annexed a typical example of such error, and its rectification, as exh. EC-18).

[91] Responding to the petitioners’ affidavit sworn by Ms. Apprielle Oichoe, the deponent averred that the assertions made under the rubric, “The Travesty that was the Electoral Process in Kenya 2017”, did not give a true account. The report in question had not, in the first place, been dated or signed, nor was its author or source indicated. The deponent averred that, quite to the contrary, the 1^st respondent’s tallying and transmission system were functional and credible in all respects.

[92] In response to the affidavit of Mr. Benson Wasonga, the deponent averred that the election results from each polling station were contained in Forms 34A; and the results-declaration for the Presidential election was made on the basis of results contained in Forms 34B from 290 constituencies and the diaspora. He averred that the total number of rejected ballots as declared in Forms 34C, was 81,685, and not 477,195 as alleged. He averred that Mr. Wasonga had misconstrued the statistics published on the public-display mode of KIEMS – which was not the result within the terms of the law. He deponed that the cause of the variance between the actual number of rejected ballots and the figure shown on the public website, was but on account of human error.

[93] In response to the statements made on behalf of the petitioners by Mr. George Kegoro, the deponent, firstly, adopted the detail, tenor and effect of the 1^st respondent’s depositions by Ms. Immaculate Kassait. Secondly, the deponent averred that the statistics electronically displayed did not, as such, constitute the results of the Presidential election: the final result of the Presidential election is verifiable from an inspection of Forms 34A and 34B.

[94] The deponent denied Mr. Kegoro’s statement that the IEBC’s portal showed varying levels of votes cast for the six different elective offices featuring in the General elections of 8^th August, 2017. He averred that Mr. Kegoro’s statement was unrelated to the fundamentals of the petition, as it lacked a foundation in the pleadings and the primary depositions of the petitioners – hence verging upon an attempt to litigate a substantial Presidential petition by the guise of “supporting affidavit”.

[95] Responding to the affidavit of Ms. Olga Karani, for the petitioners, the deponent adopted the averments made by Ms. Immaculate Kassait and Mr. James Muhati, and deposed that all agents at the National Tallying Centre had been given access to the Forms 34A and 34B, and an opportunity to verify the results, before declaration.

[96] The deponent averred that the Presidential election of 8^th August, 2017 was conducted in accordance with the Constitution and the electoral laws, and that the process was free, fair and credible. Among the elements of credibility in the said election, he enumerated the following:

(i) a substantial increase was realized in the number of voters – from 14.4. million in 2013 to 19.6 million in 2017, being some 78% of the eligible voters;

(ii) an audit of the register had been conducted, before the date of voting;

(iii) the register had been opened for verification of biometric data, by members of the public (10^th May, 2017 – 9^th June, 2017);

(iv) a time-table had been published for political-party primaries – Gazette Notice of 17^th March, 2017;

(v) resolving of disputes from the nomination process for candidates;

(vi) registering of over 14,500 candidates to participate in the 2017 General Election;

(vii) gazettement of 40,883 polling stations and 338 tallying centres across the country, including the prisons and the diaspora; and

(viii) gazettement of returning officers;

(ix) acquiring of an integrated electoral management system for voter registration, voter identification, candidates’ registration, results transmission;

(x) recruitment, training and deployment of over 360,000 election officials across the country;

(xi) continuous voter education programmes undertaken across the country, using different strategies and platforms; and

(xii) attracting over 15,000 individual observers; 105 international observer institutions; 254 local institutions; more than 7000 journalists from over 30 local and international media houses accredited to participate in the General Election.

[97] The next deponent, James Muhati who holds the office of Director in charge of Information and Communication Technology at IEBC, made depositions bearing upon the statements by the 1^st petitioner, and by Ms. Apprielle Oichoe and Mr. Godfrey Osotsi. He averred that the Commissions had taken up suggestions made in the Kriegler Report which was formulated in the wake of the violent General Election of 2007, and had deployed certain technological mechanisms to support the management of the electoral process – these being the Biometric Voter Registration (BVR); the Electronic Voter Identification Device (EVID); the Candidate Nomination System; and the Result Transmission System (RTS). When the new electronic system was first utilized in 2013, the deponent averred, it was found to have certain imperfections; and it became necessary to amend Section 44 of the Elections Act, mandating IEBC to establish an integrated electronic system: this would facilitate the conduct of biometric voter registration; electronic voter identification; and electronic results transmission – that is, the Kenya Integrated Electoral Management System (KIEMS). This new system, the deponent averred, was successfully employed during the 8^th August, 2017 General Election: and it enabled IEBC to properly verify the biometric data during the 10^th May, 2017 – 9^th June, 2017 verification exercise, as required by law; it also enabled the proper verification of voters on polling day; and it enabled the due transmission of election results from polling station to constituency, and to the National Tallying Centre.

[98] The deponent averred that he was aware of the terms of the Constitution and the statutory and regulatory framework, within which the electoral process had been conducted: and in this context, he cited Articles 81 and 86 of the Constitution as read with Section 4(m) of the IEBC Act, which require the voting set-up to be simple, accurate, verifiable, secure, accountable and transparent. He deposed that the KIEMS had been established with the approval of the Elections Technology Advisory Committee (ETAC), under the terms of Section 44(8) of the Elections Act, and with the participation of relevant agencies and institutions, including political parties. (He annexed the supporting minutes – exh. JM – 1).

[99] On the role of ICT in the General Election of 8^th August, 2017, the deponent averred that a technological process had been used in voter identification, and the transmission of results; and that the transmission component in KIEMS had enabled the Commission to relay the Presidential election results and statistics from the polling stations to the constituency tallying centres and to the National Tallying Centre. During the transmission of election results through KIEMS, the presiding officer would complete Form 34A as required by law, and then input on the KIEMS the results-statistics captured on Form 34A; the presiding officer would then take the image of Form 34A, and, before sending the data, he or she would first show the entries made to the agents of the candidates and of the political parties, for confirmation. (He annexed as evidence, copies of the directions issued to the presiding officers, the training manual, and a transmission flow-chart (JM-5A; JM-5B and JM 5C, respectively)).

[100] It was the deponent’s evidence that the petitioners’ allegations that the relay and transmission was not “simple, accurate, verifiable, secure, accountable, transparent, open and prompt”, and that there had been a contravention of the terms of Article 81 (e)(iv) and (v) of the Constitution, did not represent the truth – especially as no evidence had been adduced to support the claims.

[101] On the question of the security and verifiability of the electronic system, and in relation to the allegation that there had been some compromise to the KIEMS system by unauthorized third parties, the deponent averred that such claims have no relation to the true position, noting also that they are not supported by evidence. He averred that the Commission had engaged a competent support-team of experts, who subsequently partnered with internationally recognized and accredited institutions to provide the best information-security system. (He annexed copies of certification and accreditation documents from the providers – exh. JM-8A; JM-8B; JM-8C; JM-8D).

[102] The deponent gave testimony on the complementary system in the transmission of election results, for compliance with the terms of Article 38 of the Constitution. He averred that Regulation 83 of the Elections (General) Regulations, 2012 provided for the complementary system of transmission of election results, and that the complementary mechanism involves the physical delivery of Forms 34A by presiding officers to the Returning Officers, in the respective constituencies.

[103] IEBC’s Director of Voter Registration and Electoral Operations, Ms. Immaculate Kassait, averred that, contrary to the negative impression given by some of the petitioners’ witnesses on early transmissions of election results for some stations, such stations had only a few voters, sometimes numbering between one and 10 – and counting these would take only a short time; she gave examples in this regard: Boyani Primary School in Matuga Constituency; Arabrow in Wajir South Constituency; Ya Algana in North Horr Constituency; Lowangina Primary School in Tigania East Constituency.

[104] The deponent denied the veracity of the claim by some of the petitioners’ deponents, that there had been, in the transmission of election results, a constant 11% difference in vote-strength between the 1^st petitioner and the 3^rd respondent. She displayed a table in her affidavit, based on a 30-minute interval analysis of transmitted election-results data; and this showed the vote difference to range in percentage between 9.095% to 25.573%.

[105] The deponent denied the allegation in Dr. Nyangasi’s affidavit, that the 1^st respondent had chased away from polling stations the agents of the 1^st petitioner, in central Kenya and in the Rift Valley. She gave examples of polling stations in central Kenya in which, indeed, the petitioner’s agents had duly executed Forms 34A.

[106] The deponent admitted a case of an erroneous data entry in a station, where the petitioner had been credited with 2 votes instead of 561 votes, indicating that the circumstances in which such error occurred were explained in the 1^st respondent’s affidavit by Mr. John Ole Taiswa; she deponed that a similar explanation of error was also set out in the affidavit of Ms. Rebecca Abwaku.

[107] The deponent took on specific instances in which the depositions made for the petitioner, and which attributed misrepresentation of vote-count, were based on untrue perceptions of fact: for instance, that a partial Form 34B was uploaded in respect of Karachuonyo Constituency; that in Kilome Constituency the original form 34B reflected 38,269 votes, while that uploaded in IEBC’s portal showed 33,757 votes; that in Igembe South, the summation of total votes in Forms 34A for the 1^st petitioner was 41,834, yet by Forms 34B in the Commission’s portal, his total votes were 43,209; that the Forms 34A in respect of St. John’s Primary School Polling Station indicated the total number of valid votes cast as 468, against the entry on Form 34B which showed 467; that there was a variance between the Forms 34B keyed-in on the KIEMS kit and that projected at the National Tallying Centre for Morrison Primary School Polling Station; that there were any discrepancies in Forms 34B for Embakasi South Constituency, and Forms 34A for Jobenpha Community School; that there were any discrepancies in Forms 34B and 34A in respect of Kiru Primary School Polling Station.

[108] The deponent, while disagreeing with most of the claims made by the petitioners, admitted the occurrence of certain errors, for instance: there were discrepancies in Form 34B in Bomet Central Constituency – to the extent that at Bomet Primary School, the form did not show any rejected votes, while there was one rejected vote; in the case of Kapkoross Primary School in Turbo Constituency, there was a computation error – though the total vote cast in respect of each candidate was correctly tallied; there was a computation error in the case of Dagoretti North Constituency, with the total valid votes being shown as 104,789, rather than 105,840; in the case of Naivasha Constituency, there were arithmetic errors in the completion of the forms for several polling stations; in the case of Kiangai Primary School in Ndia Constituency, Form 34A indicated the 3^rd respondent’s votes as 461, while Form 34B showed these as 467; there was a data-entry error in the case of Gem Constituency – with a variance between the total votes tallied, and the total valid votes.

[109] The 3^rd respondent made depositions to the effect that he had at all material times been the President of the Republic of Kenya, as well as the nominated Presidential-election candidate for the Jubilee Party, following the earlier General Election of 4^th March, 2013; and he had been declared as President-Elect by the 1^st respondent, upon the conclusion of the General Election of 8^th August, 2017.

[110] Regarding the integrity of the 1^st respondent in its conduct of the 2017 General Election, the 3^rd respondent deponed that the IEBC was a reconstituted team, drawing its origin from the endeavours of the NASA coalition’s predecessor, CORD, which in May 2016, had held nationwide rallies culminating in the removal from office of the former Commissioners, and the amendment of the Elections Act. The said protests led to a bipartisan Parliamentary process, which crystallized a new legal framework, attended with the resignation from office of the then Commissioners, and the appointment of the current Commissioners, who managed the elections of 8^th August, 2017.

[111] The deponent averred that the Presidential election of 8^th August, 2017 had been preceded by considerable litigation on electoral matters, in the superior Courts, promoted by the CORD or NASA coalition – notable instances being: IEBC v. Maina Kiai and Others [2017] eKLR; NASA v. IEBC and Others, Civ. Appeal No. 258 of 2017; Republic v. IEBC ex parte Gladwell Otieno, High Court Jud. Rev. No. 447 of 2017.

[112] It was the 3^rd respondent’s perception that the Commission had complied with the law, in the conduct of the General Election of 8^th August, 2017 – especially with directions issued by the Courts in the various election-related cases. This perception is founded upon a certain set of facts, as follows:

(i) election materials, including biometric voter verification kits, and ballot papers, were timeously conveyed to all polling stations in the country at large;

(ii) the biometric voter-verification kits were successfully applied in all polling stations – and where they malfunctioned, prompt action was taken to repair them, or to operationalize in their place the prescribed complementary identification mechanism;

(iii) the voting process came up against no impediment, throughout the country; and voting closed on time, in the vast majority of polling stations; where voting began late, voters were allowed commensurate additional time to vote, before closure;

(iv) candidates and/or their agents, and political-party agents, were allowed in, at the polling stations, to monitor the process of voting, tallying, recording and transmission of results;

(v) presiding officers at each polling station not only submitted Form 34A in electronic form in the presence of the candidates and/or their agents, but submitted also the scanned copy of Form 34A to the constituency tallying centre – before the hard copies were taken to the constituency tallying centre; and wherever there was a failure to transmit simultaneously the results data and the scanned image of the Form 34A at a polling station, the same was not in violation of any law, there being no statutory obligation in that regard;

(vi) other than minimal human errors, which are to be expected, the data entered in the KIEMS, particularly with regard to votes received by the individual Presidential-election candidates, was accurate;

(vii) nonetheless, the results electronically transmitted through KIEMS were only provisional, and did not constitute the final figures which were announced by the 2^nd respondent; it is notable in this regard that the 1^st respondent had made it clear that in the event of any difference between the alpha-numeric results sent though KIEMS and the results reflected on the Forms 34A, the results on the Forms 34A would prevail;

(viii) at each constituency tallying centre, the Forms 34A received from the polling stations were collated by the returning officer, and a declaration in the Form 34B, reflecting the same, was signed by the returning officer and the candidates or their agents, verifying that the Forms 34A received were a true reflection of the vote-count recorded by the presiding officers at the polling stations;

(ix) the signed Forms 34B were thereafter scanned and transmitted to the National Tallying Centre electronically;

(x) all transmitted Forms 34A were held accessible to all parties; and all Forms 34B were printed and availed to the Presidential-election agents at the National Tallying Centre;

(xi) the Presidential election results were declared by the 2^nd respondent on the basis of the results declared in forms 34A at the polling stations, and tallied in Forms 34B at the constituency tallying centres.

[113] The 3^rd respondent deponed that the petitioners had failed to set out the particulars of the non-compliance with the Constitution and the law which they alleged, by the 1^st respondent; hence their charge had rested merely upon conjecture and speculation.

[114] As to the petitioners’ contention that there were discrepancies between the Forms 34A and 34B bearing the election results, the 3^rd respondent averred that no instances of such variance had been shown; and in his perception, even assuming such allegations were true, the discrepancies would stand as no more than clerical errors, such as would affect the election result, in view of the large difference separating the 3^rd respondent and the 1^st petitioner in vote-strength.

[115] The deponent averred that it would not have been possible for the 1^st respondent to manipulate or distort the votes cast and counted in favour of the 3^rd respondent, considering the rigorous statutory procedures observed by the 1^st respondent; and moreover, the final results of the Presidential election had been duly verified by the political parties and the individual candidates, through their agents – the effect being that such election results were a true reflection of the will of the voters.

[116] In the 3^rd respondent’s perception, the 1^st respondent, in the conduct of the General Election of 8^th August, 2017, had all along acted in a lawful and transparent manner, as it undertook the tasks of various stages of the election – including early preparations; voting process; vote counting at the polling stations; tallying at the constituency and the national tallying centres; and the transmission of results at all levels. The mode of conduct of the election, in the 3^rd respondent’s perception, was efficient, accountable, accurate and credible.

[117] The 3^rd respondent averred that he had garnered, at the Presidential election of 8^th August, 2017, a substantial vote, represented in the figure of 1,401,286 above the number obtained by the 1^st petitioner. Such a margin, in the deponent’s view, emphatically demonstrated the sovereign will of the Kenyan people, which merits safeguard by the process of the law.

[118] The 3^rd respondent denied the petitioners’ contention, that he had contravened the law and the declared principles for the conduct of free and fair election, through the medium of intimidation, coercion, or improper influence on voters. He averred that such allegations have been made without any evidentiary basis. He deponed that the Presidential election had been conducted peacefully, and in accordance with the law, as well as best international practice.

[119] The 3^rd respondent deponed that he had difficulty in responding to accusations emanating from the petitioners and their witnesses which were imprecise and lacked particulars. While he found Dr. Nyangasi’s depositions to be in the category of such generalized statements, he none-the-less went on to deny that he corruptly influenced voters in the run-up to the election of 8^th August, 2017; he denied that he had used threats to get the support of local chiefs in Makueni; he denied being aware of any Cabinet Secretaries who abused their offices and accorded him electoral support, and invoked several other affidavits in support of his averments – those by Dr. Kibicho, Mr. Wakahiu, Mr. Chirchir, and Ms. Guchu.

[120] Mr. Chirchir, who had been the chief Presidential agent during the 2017 elections, deponed that the said elections had been free, fair, accountable, credible and verifiable. He deponed that the majority-vote cast for the 3^rd respondent was a natural reflection of the general national voting orientation, which gave the 3^rd respondent’s Jubilee Party the greatest number of votes for the five other categories of elective posts also filled through the same General Election of 8^th August, 2017.

[121] Denying the averments in Mr. Kegoro’s affidavit for the petitioners, the deponent averred that the processes of voting, collating and tallying of votes, and declaration of results, had been conducted in compliance with the provisions of the Constitution and electoral laws, and that the Presidential election results announced by the 2^nd respondent on 11^th August, 2017 were accurate, and in compliance with the prescribed standards.

[122] The deponent averred that, at the time of declaration of the Presidential election outcome, the 1^st respondent’s online portal had not yet transmitted all the results; and these results were being retrieved from Forms 34A arriving from polling stations, which results had already been transmitted to the constituency level; and the inconsistency in the data displayed was on account of Forms 34A, 34B and 34C that had not yet been transmitted on the online portal. He deponed that, as at 21^st August, 2017 at 8.14 am, the transmission rate was 99.99%; and this meant that the reported valid votes in the figure of 15,180,381 at the portal, did not include all valid votes from all the 40,883 polling stations of the country.

[123] It was Mr. Chirchir’s averment that the violence witnessed several days following the declaration of results by the 2^nd respondent, was occasioned by the demands by the petitioners that they be declared President-elect and Deputy President-elect on the basis that the petitioners were already in possession of what they believed to be the genuine results, secured from the 1^st respondent’s servers. Such a crisis, the deponent averred, had been deepened by a press conference in which the petitioners urged their supporters to reject such vote-count results as would later be announced, on the basis of a collation of results in Form 34C.

[124] Mr. Bryan Gichana Omwenga, a technology advisor employed by the Jubilee Party, averred in his affidavit that it was not true as deposed by Mr. Ole Kina, that Forms 34A had been used to declare the Presidential election results; rather, he deponed, it is the Forms 34B that provide the basis for declaring such results.

[125] Mr. Omwenga deponed that the process of electronically transmitting Presidential election results had not, in all cases, functioned without a hitch: sometimes, the scanned image would fail to load, or would delay in loading, especially in those parts of the country that lacked the 3G or 4G network coverage. It was his testimony that such network challenges had been anticipated – and so, the 1^st respondent had duly sounded necessary caution. However, the deponent averred, regardless of whether the electronic system duly functioned, the Forms 34A would still be physically delivered at the constituency tallying centre; and the Forms 34A would then be used to tally the constituency votes: and thereafter the results would be entered in Forms 34B. The Forms 34B would then be transmitted to the National Tallying Centre – where the Commission would sum-up in Form 34C, which would be the basis for declaring the results. Consequently, the deponent averred, it was not necessary to have Forms 34A in possession during the summation of Presidential election results. It followed, therefore, that the early voting results transmitted on television screens were only provisional, as the authoritative results would be based on the constituency tally in Forms 34B.

[126] Dr. Karanja Kibicho, in his affidavit sworn on 24^th August, 2017 carries depositions focussed upon the statements made on behalf of the petitioners by Dr. Nyangasi Oduwo. He averred that, in his capacity as Principal Secretary in the Ministry of Interior and Co-ordination of Government, he had in July, 2017, received information that some chiefs in Makueni County were unlawfully using their positions, as well as government facilities, to participate in political campaigns – whereupon he duly informed the 3^rd respondent, who issued the necessary warning to halt such a practice.

[127] Ms. Marykaren Kigen-Sorobit, the Jubilee Party’s deputy chief executive officer, made depositions in response to the statements of Mr. Wamuru for the petitioners. She averred that Mr. Wamuru had cited non-existent polling stations, and claimed that the NASA coalition agents had been excluded from certain polling stations. The deponent annexed evidence in the form of Form 34A, showing that one Ms. Eunice Muthoni Ndwiga had been the NASA agent at the Karurumo Youth Polytechnic polling centre, and had duly signed the form, without any reservation.

[128] The deponent averred that Mr. Benson Wasonga for the petitioners, had stated that there were anomalies in the declaration of Presidential-election results, though without specifying the particulars of such anomalies. She deposed that the summation of the total valid votes in the portal is 15,180,381; and that by Form 34C, the 1^st petitioner’s votes were 6,762,244 while those for the 3^rd respondent were 8,203,290.

[129] Ms. Winifred Waceke Guchu swore an affidavit on 24^th August, 2017, in her capacity as the Executive Director of the Jubilee Party, and deputy chief Presidential agent for the 3^rd respondent. She averred that the difference of 1,441,066 votes that separated the vote tallies of the 3^rd respondent and the 1^st petitioner, was a strong enough signal by the voters, who were expressing their free and sovereign will; and she perceived it as relevant to the orientation in political choice, that the Jubilee Party won the majority of elective positions for the office of County Governor; Senator; Member of the National Assembly; Women’s Representative in the National Assembly; and Member of County Assembly, all from the same General Election.

[130] The deponent averred that the petitioners had, on 10^th August, 2017 written a letter to the 1^st respondent, claiming to have in their possession Presidential election results which differed from the results being shown on the IEBC portal at the time; and just before issuing this letter, the petitioners had made widely-publicised claims that the results transmission system had been corrupted through hacking.

[131] The deponent averred that the Constitution imposes no duty on the 1^st respondent to use electronic systems of results transmission exclusively: the only mandate of the 1^st respondent being, to ensure that the electoral system is simple, accurate, verifiable, accountable and transparent. She averred that Section 44A of the Elections Act entrusts to the 1^st respondent a statutory discretion to apply a complementary mechanism, where technology fails, or cannot meet the constitutional threshold of a free and fair election.

[132] The deponent averred that upon the conclusion of voting, the counting exercise had begun, in the presence of all agents present, observers, police officers, and all authorized persons. She deponed that according to ELOG, an observer group which deployed one of the largest observer-delegates, the petitioners had a good representation of agents. She believed that even where such agents failed to sign the prescribed forms, such failure would not invalidate the vote-count results, in the light of the terms of Regulations 62(3) and 79(6) of the Elections (General) Regulations, 2012. She deponed that once the counting process at the polling station was concluded, the results were simultaneously dispatched electronically to the constituency tallying centre and the National Tallying Centre, and these were the results which then streamed onto the public portal at the Bomas of Kenya.

[133] The deponent averred that since the 1^st respondent did not own telecommunication network facilities, it relied on licensed service providers. Such service providers were under obligation, under Regulation 20 of the Elections (Technology) Regulations, 2017 to provide and deliver services as may be requested by the 1^st respondent. The 1^st respondent, in consultation with the service providers, was required under Regulation 21 of the said regulations, to identify and communicate in a timely manner, to all stakeholders, about the network service available at different polling stations, and in areas where there was no telecommunication network. Thus, the deponent averred, Parliament introduced Section 44A, to provide a complementary mechanism for the identification of voters and the transmission of results.

[134] The deponent averred that after the Court of Appeal decision in the Maina Kiai Case, it had been confirmed that Regulation 83 would be the complementary system applicable in respect of the transmission of election results, in the event of failure of the technological mechanism. The complementary mechanisms would take the form of the physical delivery of Forms 34A from the polling stations to the returning officers at the constituency tallying centre, while constituency Returning Officers would deliver Forms 34B to the National Tallying Centre in Nairobi.

[135] The deponent made averments regarding the claim of irregularity in the elections appearing in Dr. Nyangasi Oduwo’s affidavit. She averred that in the overwhelming majority of the cases cited by Dr. Oduwo, the statement had not revealed the features typified as irregular. She deponed that neither the Elections Act nor the Election (General) Regulations requires that Forms 34A should bear the 1^st respondent’s stamp; and the failure of an agent to sign the forms at the counting hall did not invalidate the results.

[136] In response to allegations of discrepancies in Forms 34A and 34B, the deponent averred that no significant variations existed. She produced a report (exh. WG 13) which showed that after reconciling the discrepancies in the forms attached to Dr. Nyangasi Oduwo’s affidavit, the effect was that the petitioner’s vote-tally improved by 595, while that of the 3^rd respondent decreased by 1199 votes.

[137] The deponent respondent to the deposition from the petitioners’ side, that the final tally of Presidential-election votes had not included the results for Nyando Constituency, where the 1^st petitioner had obtained 60,715 votes while the 3^rd respondent obtained 214 votes: she deponed that such an oversight was not fatal, as, by Regulation 87 of the Election (General) Regulations, the 2^nd respondent has authority to declare the Presidential election results where, in the opinion of the Commission, results not yet received would not make a difference in the final results.

[138] Responding to the claim by the petitioners that there had been a suspicious disparity between the Presidential vote totals and the totals for other elective offices in the same constituencies, the deponent exhibited an analysis of results from 94 constituencies – showing that the votes cast in one or more of the five other sets of elections, were more than the votes cast at those levels, for the Presidential candidates.

[139] The deponent denied the allegation made in affidavits sworn for the petitioners, that the voting results streamed by the Commission had shown a constant 11% margin between the vote-count for the 1^st petitioner and for the 3^rd respondent: in line with other depositions for the respondents, she stated that such a gap in vote-count percentages had kept shifting constantly.

[140] The deponent responded to the averment from the petitioners’ side, that the 3d respondent’s electoral strength had benefited from running governmental actions which showed him in positive light, and thus constituted censurable undue influence. She averred that there was no requirement in law that on-going government programmes be suspended during the election period; and that, as Article 35 of the Constitution safeguards the right to information, the required openness made a case for current government projects and activities to be held accessible to all.

[141] In further support of the respondents’ stand, is the affidavit by Davis K. Chirchir, sworn on 24^th August, 2017. He avers that the collation of election results in Form 34C and the announcement thereof, was done after all Forms 34B, save as regards Nyando Constituency, had been electronically transmitted to the National Tallying Centre. He deponed, in line with the depositions of Ms. Guchu, that the voting results for Nyando Constituency which had not been collated at the time of results declaration, had no effect on the outcome.

[142] The deponent averred that, quite contrary to the reprobation of the vote-result transmission measures taken by the Commission, the actions taken had been based on the authority of the law. This transmission question had already featured in a High Court decision (National Super Alliance v. IEBC and Others, Petition No. 328 of 2017) and a Court of Appeal decision (National Super Alliance (NASA) Kenya v. The Independent Electoral and Boundaries Commission and 2 Others, Civ. Appeal No. 258 of 2017), where it was held that the 1^st respondent had duly put in place a “complementary mechanism” in terms of Section 44A of the Elections Act, 2011 and that it had, with public participation, established regulations to operationalize the said statutory provision. In this context, the deponent averred that any failure of the technological devices would not impair the electoral process, or become the basis for invalidity of the electoral process.

[143] The deponent averred that the petitioners’ claim that the security of the integrated electoral management system (KIEMS) had been compromised, was not substantiated with any transcripts of video clips, or any other material reference.

[144] The deponent averred that the 1^st respondent had kept in full control of its electronic transmission system at all times, and that no evidence showed it to have ceded its management or authority in that regard, to any third party. He deponed that it was not true as alleged, that the transmission of results from 11,000 polling stations had been compromised – especially as none of the petitioners had contested the contents of Forms 34A from the relevant polling stations. He further averred that it would not be true, as alleged by the petitioners, that a total of 11,000 polling stations would represent as much as 7,700,000 voters, given that the number of registered voters per polling station varied from one to a maximum of 700.

 

[145] The deponent deposed that it was not a factual statement coming from the petitioners, that the IEBC had the election results streamed on the website, represent a constant percentage of 54% and 44% respectively, for the 3^rd respondent and the 1^st petitioner: instead, the variation between the two had oscillated between 27.06% and 9.22% in favour of the 3^rd respondent.

[146] The deponent’s perception, on the electoral process as a whole, was that, the 3^rd respondent had been duly elected in a free, fair, credible and valid election conducted on 8^th August, 2017.

D. DOES THE PETITIONERS’ CASE REST ON FACT? HAVE THEY DISCHARGED THE BURDEN OF PROOF? DID THE RESPONDENTS DISCHARGE THE EVIDENTIAL BURDEN? WHO IS FAVOURED BY THE STATE OF THE EVIDENCE?

[147] The objective merits of this case must be drawn from the foundation of fact. I will subsequently revert to the vitality of “fact”, in the configuration of jurisprudence – the juristic and scholastic preoccupation with the essence of law, and its defining role in social, economic, political, religious or other crucial human engagements.

[148] “Fact” is thus defined: “Something that actually exists; an aspect of reality…” (Black’s Law Dictionary, 8^th ed. (Bryan A. Garner, ed.) (St. Paul, MN: West Group, 2004), p.628).

[149] “Fact”, therefore, is as reliable as the concrete foundations of a skyscraper; and it is to be counted upon as a basis of objectivity and truth. The practice of law, and more particularly, the motions of the judicial process via the minds and hands of Judges – society’s trustees for justice – are invariably lodged upon the pillars of fact, this being proffered through evidence.

[150] The merits of the petitioners’ case stand to be tested in the first place through evidence. What evidence did the petitioners adduce? And did they discharge their initial burden of proof, and complete it with an effective clearance of the constant legal burden resting upon them?

[151] The evidence scenario speaks for itself, as may be summarized here:

(i) the petitioners resort to broad assertions of alleged wrongs on the part of the 1^st and 3^rd respondents;

(ii) such alleged failings are lined up against the Constitution’s prescription of certain values, principles and norms;

(iii) the petitioners’ statements are often plaintive, and inviting the Court to ascertain their true scope, in terms of legality and propriety in the measures taken by the respondents;

(iv) what the petitioners present as fact, relates primarily to the electronic transmission of election results, rather than the physical conduct of voting and enumeration of ballot;

(v) and what the petitioners present as fact, in relation to polling day, and to the count of votes, has been responded to in substantial detail in the consistent evidence emanating from the respondents;

(vi) the deponents on the respondents’ side have responded to the statements from the petitioners’ side: they have given testimony describing their actions in the conduct of the General Election of 8^th August, 2017, as regards the tally and count of votes, and the recording, transmission and declaration of results. The respondents have in the process, explained the actions they took just before, in the course of, and in the aftermath of voting day – explaining such impediments as affected the electoral process, and invoking specific provisions of the Constitution and the law, by virtue of which they had acted.

[152] Does one behold a clear evidence-scenario, such as ought to lead a duly- perceptive Court in some particular direction, of course, barring some weightier consideration of justice which compels a different course?

[153] From the evidence, the petitioners do not seek an ascertainment of the true number of votes cast for the 1^st petitioner and for the 3^rd respondent – even though these, as required by law, had been delivered to the Supreme Court, and are kept in the custody of the Registry. The petitioners have focussed the burden of their case on apprehensions as to the perfect security of the transmission system, whereby the election results had earlier been relayed, before the physical records were received, organized and kept by the 1^st respondent. They have claimed an improper tallying of votes from different polling stations, though this has been denied, on the basis of specific evidence, and exhibits showing the contrary. They have spoken of improper conduct during election, on the part of certain government officials, said to have unduly benefited the 3^rd respondent’s electoral platform – but these claims have been denied by witnesses for the respondents. The veracity of such averments have been brought to question by the detailed testimony of the respondents’ witnesses, Dr. Kibicho and Mr. Wakahiu. The attributions to the 3^rd respondent of improper influence, intimidation and corruption, therefore, are not just unsubstantiated, but also fail to meet the high standards of proof required for criminal charges.

[154] The petitioners assert, in broad terms, that the 1^st respondent, in the conduct of elections, did not abide by the terms of Article 86 of the Constitution, which requires elections to be conducted in a manner that is “simple, accurate, verifiable, secure, accountable and transparent” [Article 86(a)]. Yet the use of the manual ballot paper would clearly meet such conditions: the voter has no difficulty in marking it; its reality and visibility is not in doubt; it is verifiable, as a check so readily reveals the voter’s exercise of his or her right of choice; it is secure; it is transparent; it is accountable.

[155] The votes cast had been announced at the polling stations, where they were tabulated, and results announced. From that initial ascertainment of the voting situation, the results were collated at the constituency tallying centre, and announced at that level. The 1^st respondent thereafter provided the Forms 34A from all polling stations; Forms 34B from constituency tallying centres; and Forms 34C at the National Tallying Centre – which was signed by all the Presidential election agents, save for the petitioners’ agent. Thus, from the evidence in this Court’s record, the claim of non-compliance with the terms of Article 86 of the Constitution, does not stand up.

[156] More substantial and more persuasive evidence, in my perception, has emanated from the respondents side. Several examples of such evidence may be set out here:

(i) Mr. Chebukati, who had been the Returning Officer for the Presidential Election, gave testimony that the verifiable, physical count of the votes cast showed that the 3^rd respondent had garnered 8,203,290 votes, as against the 1^st respondent who received 6,762,224 votes; and these results were duly recorded in Form 34C, which was itself abstracted from the Forms 34B forwarded to the National Tallying Centre from the constituency tallying centres, as well as the diaspora vote tallies.

(ii) Mr. Chebukati deponed that the primary results-declaration Forms (Forms 34A and 34B) had in no way been compromised, as regards their accuracy and overall integrity. He deposed that the Forms 34B had been duly forwarded from the constituencies to the National Tallying Centre, for verification with Forms 34A and for tallying.

(iii) Mr. Chebukati deponed that the Commission had taken all the necessary steps to ensure that the General Election in all its components, complied with the constitutional requirements of simplicity, accuracy, verifiability, security, transparency and accountability.

(iv) Mr. Chebukati’s averments are specific, matter-of-fact, and in line with vital evidence emanating from other deponents on the respondents’ side. For instance, Mr. Chiloba, the 1^st respondent’s Chief Executive Officer, confirms that the tallying and transmission of results took place at the polling stations, after which the vote-count was collated and declared at the constituency tallying centre and the National Tallying Centre. Mr. Chiloba gave a clear account of the transmission system used by the 1^st respondent, as well as of the context and modalities of the recently-introduced Kenya Integrated Electoral Management System (KIEMS).

(iv) Mr. Muhati in his affidavit, gave still more details on the working of the electronic transmission system – an account that was entirely consistent with the averments of both Mr. Chebukati and Mr. Chiloba.

(vi) Specific and credible evidence, in relation to the factual situation attending the conduct of the General Election of 8^th August, 2017, is recorded by other deponents, such as Ms. Immaculate Kassait, the 3^rd respondent, Mr. Wakahiu, Ms. Guchu, Mr. Chirchir, Dr. Kibicho, Mr. Omwenga, and Ms. Kigen-Sorobit.

[157] Judges entertaining the competing claims of parties, constantly have to form an opinion, and, from objective criteria and conviction, eliminate the credible from the incredible, the truth from the untruth. That has to be done in this instance. The factual accounts of the respondents are firm and gripping. They are credible, and represent the substantial truth. However, no account of equal strength is beckoning from the other side.

[158] I cannot but conclude that, on facts conveyed through evidence, in support of the petitioners’ case, they are on weak grounds, as compared to the respondents. In establishing the merits of their case, the petitioners had both the ultimate legal burden of proof, and the shifting evidential burdens falling upon them. They did not, in my appraisal, discharge even the early evidential burden – the effect being, in the end, that they made no valid case against the respondents.

[159] The law of burden of proof, at the beginning and in the course of trial, has been the subject of scholarship. Dr. H. F. Morris in his learned work, Evidence in East Africa (London: Sweet & Maxwell, 1968) [p.134], thus considered this issue:

“The distinction is commonly made by commentators on the law of evidence between the use of the term in the sense of the burden which lies throughout the trial of establishing a case – usually called the general burden of proof – and in the sense of the onus of producing evidence at any particular stage during the trial. There is a general burden of proof, which lies throughout the trial upon one of the parties and never shifts to the other, to establish the case….In a civil case this burden lies upon the party who would lose if no evidence at all were to be produced, that is to say, in order to win he must establish his case by a preponderance of evidence and, coupled with the onus of discharging this burden, is his right to begin.”

[160] Such a position is reflected in Kenya’s Evidence Act (Cap. 80, Laws of Kenya), which thus provides [Section 107]:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

E. THE PETITION: ANY OTHER BASIS OF CLAIM?

[161] How is the Court to be guided in relation to the petitioners’ claims that “the Presidential election was so badly conducted, administered and managed…that it failed to comply with the governing principles established under Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163, and 249 of the Constitution…; the Elections Act… and the Regulations made thereunder including the Electoral Code of Conduct….”; and in relation to the assertion that “[t]he massive, systemic, systematic and deliberate non-compliance with the Constitution and the Law” “goes to the very core and heart of holding elections as the key to the expression of the sovereign will and power of the people of Kenya”, “Undermines the foundation of the Kenyan system as a sovereign republic where people are sovereign under Article 4 of the Constitution”, and “severely undermines the very rubric [sic] and framework of Kenya as a nation State”?

[162] How is the Court to be guided in respect of the petitioners claims that: “[t]he Presidential Election contravened the principles of a free and fair election under Article 81(e) of the Constitution as read with Section 39 of the Elections Act…”; that “[t]he entire process of relay and transmission of results from polling stations to the constituency and National Tallying Centre…and from the constituency tallying centres to the NTC…was not simple, accurate, verifiable, secure, accountable, transparent, open and prompt…[and] substantially compromised and affected the requirement of free and fair elections under Article 81(e)(iv) and (v) of the Constitution”; that “[t]he data and information recorded in Forms 34A at the individual polling stations were not accurately and transparently entered into the KIEMS at the individual polling stations”; that “[t]he Presidential Election was not administered by the 1^st respondent in an impartial, neutral and accountable manner as required under Article 81(e)(v) of the Constitution”; that “the 1^st respondent abetted and allowed the electronic media and news channels to relay and continue relaying the purported results, which the 1^st respondent was aware had no legal or factual basis”, as well as other claims similarly couched?

[163] Such claims invoke the question as to the 1^st respondent’s compliance with the law in every detail, though without necessarily adverting to the objective facts, as borne by the evidence. The Court has to consider whether such contentions should be a basis for annulling the outcome of the Presidential election of 8^th August, 2017. This takes us to the line of jurisprudence now established, in electoral matters.

F. KENYA’S JURISPRUDENCE IN ELECTION MATTERS

(a) The Terms of the Constitution

[164] The Constitution of Kenya, 2010, which represents the people’s much laboured initiatives to find a pacific, rational and humane regulatory structure for governance, bears certain principles, and it safeguards certain rights and values in unambiguous terms. It safeguards “the rule of law, democracy and participation of the people” [Article 10(2)(a)]. It safeguards political rights, in detailed terms which include the provision [Article 38(3)(b) and (c)] that every adult citizen “has the right, without unreasonable restrictions”, “to vote by secret ballot in any election”; and “to be a candidate for public office…and, if elected, to hold office.”

[165] Such sacrosanct safeguards have to be so interpreted as to accord them true operational meaning. The same Constitution entrusts the interpretive mandate to the Courts, to which, for the faithful discharge of the task, the voters have entrusted their adjudicative sovereignty [the Constitution, Article 1(3)(c)].

[166] How are the Courts to interpret such rights and safeguards? The answer is provided in the Constitution itself. Article 20(3) thus stipulates:

“In applying a provision of the Bill of Rights, a court shall –

…

(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”

And if it is the Supreme Court that is undertaking such interpretation, then, just like the other Courts, it is under obligation [Article 20(4)(a)] to promote “the values that underlie an open and democratic society based on human dignity, equality, equity and freedom.”

[167] The Supreme Court, just like the other Courts, in the course of performing its safeguarded interpretive mandate, is under obligation, certainly in the straightforward case, to be guided by the principle that “justice shall be administered without undue regard to procedural technicalities” [Article 159(2)(d)], and the principle that “the purpose and principles of this Constitution shall be protected and promoted” [Article 159(2)(e)].

[168] The Constitution enjoins all Courts, in the exercise of their interpretive mandate, to adhere to certain well-defined paths, these being:

(a) a manner that “promotes [the Constitution’s] purposes, values and principles” [Article 259(1)(a)];

(b) a manner that “advances the rule of law, the human rights and fundamental freedoms in the Bill of Rights” [Article 259(1)(b)];

(c) a manner that “contributes to good governance” [Article 259(1)(d)].

[169] The foregoing prescriptions, in the context of the exercise of the people’s electoral rights as took place on 8^th August, 2017, are the firm foundation upon which I have founded my dissent from the majority opinion, in this critical election petition. The majority decision, in my considered opinion, has not only done short shrift to the governing terms of the Constitution, but also failed to adhere to the clear path of the law which has evolved, including this Court’s precedents on electoral law.

(b) The Electoral Law

[170] Just as with the Constitution itself, so with the regulatory set of norms, including the statutes and regulations: they all fall to the interpretive mandate of the Courts. This fact, on the plane of legal scholarship, ought to be apprehended as the inherent common law chain that runs through the motions of judicialism, in Kenya, as in so many other countries of the common law world. The long-established rationales of the judicial method remain with us today: and they ordain the espousal of the doctrine of precedent – a universal concept which, indeed, is expressly replicated in the Constitution of Kenya, 2010.

[171] Thus, this Constitution stipulates:

“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court” [Article 163(7)].

The Constitution prescribes competence in common law principles as prerequisite in the appointment of Judges, in the following terms [Article 166(2)]:

“Each judge of a superior court shall be appointed from among persons who –

(a) hold a law degree from a recognized university or are advocates of the High Court of Kenya, or possess an equivalent qualification in a common-law jurisdiction.”

[172] The common law interpretive method, is the constant milieu within which the application of Kenya’s electoral law, beginning from the Constitution to the subsidiary legislation, is to be apprehended.

[173] Once the Judge accomplishes the task of interpreting the electoral law as provided in the Constitution, the Judge comes down to a whole set of statutes and regulations – the latter category comprising –

(i) the Supreme Court Act, 2011 (Act No. 7 of 2011);

(ii) the Appellate Jurisdiction Act (Cap.9, Laws of Kenya);

(iii) the Elections Act, 2011 (Act No. 24 of 2011);

(iv) the Election Campaign Financing Act, 2013 (Act No.42 of 2013);

(v) the Election Offences Act, 2016 (Act No.37 of 2016);

(vi) the Independent Electoral and Boundaries Commission Act, 2011 (Act No. 9 of 2011);

(vii) the Political Parties Act, 2011 (Act No. 11 of 2011).

[174] How has the Court interpreted such laws? Where is the Supreme Court’s earlier work recorded, in that regard? And since the applicable law is the pertinent one for each electoral dispute, what is the current state of the law? How does such law apply in relation to a petition before the Supreme Court, in relation to the General Election of 8^th August, 2017? Does such law affect the Presidential election of that date, differently from the manner in which it affects the other five sets of elections of the same date?

(c) The Rationale of the Case Law

[175] Case law, the law as interpreted and applied by Judges, on the recorded merits of each matter, has for ever been the cornerstone of the common law. It is precisely the common law’s focussed and authentic appraisal of the facts of each case, that made it ever so compelling, as a defining strand in the judicial contribution to progressive, modern governance in conditions of democracy.

[176] Jurisprudential confirmation for the foregoing standpoint is found in the work of a distinguished Justice of the Supreme Court of the United States of America, Benjamin Nathan Cardozo (1870-1938) [The Nature of the Judicial Process (New Haven: Yale University Press, 1921), pp.28-31]:

“[T]he problem which confronts the judge is…a twofold one: he must first extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the principle is to move and develop….Cases do not unfold their principles for the asking. They yield their kernel slowly and painfully….

“The directive force of a principle may be exerted along the line of logical progression; this I will call the rule of analogy or the method of philosophy; along the line of historical development; this I will call the method of evolution; along the line of the customs of the community; this I will call the method of tradition; along the line of justice, morals, and social welfare, the mores of the day; and this I will call the method of sociology.”

[177] Such challenges of adjudication dictate that, the gains of the past, authoritative interpretation by a discerning and responsible Court, be perceived as representing a precious juristic civilization; and these are for keeps, as a reference-point for the conscientious and effective resolution of later disputes.

[178] Now the judicial approach in the sphere of electoral law is obviously inseparable from the Constitution’s values and the principles of democracy. It thus behoves us to pay due deference to the fundamentals of the sets of cases that have, in the last several years, been determined by this Supreme Court, on the subject of elections – including Presidential elections. Such is, quite conclusively, the most dependable course of the law that this country’s lawyers must engage, in the first place.

(d) Case Law: Illustration

[179] In Raila Odinga and Others v. Ahmed Issack Hassan, Sup. Ct. Petition No. 5 of 2013, this Court took into account the nature of the governance mandate under the Constitution, and, in response to a challenge to the integrity of the Presidential election, laid down a set of guiding parameters. The Court thus remarked [para.298]:

“An alleged breach of an electoral law, which leads to a perceived loss by a candidate…takes different considerations. The office of President is the focal point of political leadership and, therefore, a critical constitutional office. This office is one of the main offices which, in a democratic system, are constituted strictly on the basis of majoritarian expression. The whole national population has a clear interest in the occupancy of this office which, indeed, they themselves renew from time to time, through the popular vote.”

[180] Flowing from the crucial majoritarian factor in the filling of the primary office of the Executive branch, the Court, in that case, defined its orientation as regards the resolution of an electoral dispute, such as the one which has come up before us [para.299]:

“As a basic principle, it should not be for the Court to determine who comes to occupy the Presidential office; save that this Court, as the ultimate judicial forum entrusted under the Supreme Court Act, 2011 (Act No. 7 of 2011) with the obligation to ‘assert the supremacy of the Constitution and the sovereignty of the people of Kenya’ [Section 3(a), Supreme Court Act 2011 (Act No. 7 of 2011)], must safeguard the electoral process and ensure that individuals accede to power in the Presidential office, only in the compliance with the law regarding elections.”

[181] The foregoing principle, in this Supreme Court’s perception, dictated that even though the Court must uphold the clear popular, electoral choice, it will “hold in reserve the authority, legitimacy and readiness to pronounce on the validity of the occupancy of [the Presidential] office, [in case] there is any major breach of the electoral law…” [para.300].

[182] The foregoing point, regarding the Supreme Court’s obligation of vigilance, is expressed still more clearly [para.301]:

“The Judiciary in general, and this Supreme Court in particular, has a central role in the protection of the Constitution, and the realization of its fruits, so these may inure to all within our borders; and in the exercise of that role, we choose to keep our latitude of judicial authority unclogged: so the Supreme Court may be trusted to have a watchful eye over the play of the Constitution in the fullest sense. Even as we think it right that this Court should not be a limiting factor to the enjoyment of free political choices by the people, we hold ourselves ready to address and to resolve any grievances which flow from any breach of the Constitution, and the laws in force under its umbrella” [emphasis supplied].

[183] Such guiding principles were clear enough, and, in my perception, were attended with special merit. These principles, today, represent the vital backdrop to Kenya’s electoral law.

[184] In the foregoing case, this Court, suo motu, undertook a sample re-tallying of votes, coming to the conclusion that, “by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office” [para.303]. The Court, while being mindful of the several imperfections noted during the sample re-tallying, mainly directed its mind to the emerging majoritarian intent, asking itself the following question, before upholding the electoral outcome [para.304]:

“Did the petitioner clearly and decisively show the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.”

[185] The precedent-setting decision was distinctly endorsed by subsequent electoral dispute cases: and it must now be regarded as the pillar of the scheme of electoral law in Kenya – founded upon a beneficent interpretation of the Constitution, and of the whole body of electoral law. This point, for good measure, is consistent with the comparative adjudicatory experience in election matters. As the retired Israeli Justice of the Supreme Court, Aharon Barak [The Judge in a Democracy (Princeton: Princeton University Press, 2006), p.200] observes:

“Comparative law can help judges determine the objective purpose of a constitution. Democratic countries have several fundamental principles in common. As such, legal institutions often fulfil similar functions across countries. From the purpose that one given democratic legal system attributes to a constitutional arrangement, one can learn about the purpose of that constitutional arrangement in another legal system. Indeed, comparative constitutional law is a good source of expanded horizons and cross-fertilization of ideas across legal systems.”

[186] On such a basis of principle, the law and practice in the United Kingdom of Great Britain may be cited, for its relevance in the instant case. An apt summary of that position was made by a distinguished scholar, Stanley A. de Smith, who was Downing Professor of the Laws of England in the University of Cambridge [Constitutional and Administrative Law, 3^rd ed. (Harmondsworth: Penguin Books, 1977), p.252]:

“Petitions based on …irregularities at…elections are now extremely rare; this is partly because very close contests are uncommon and even if the court finds that irregularities were present it may determine that the result ought to stand since they were unlikely to have affected the results” [emphasis supplied].

[187] Such a state of the law is reflected in yet another decision of this Court, Munya v. Kithinji and Two Others, Sup. Ct. Petition No. 2B of 2014, in which it was thus held [paras. 217, 218]:

“If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Elections Act, then such election is not to be invalidated only on the ground of irregularities.

“Where, however, it is shown that the irregularities were of such a magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election.”

[188] On the same principle, the Supreme Court thus held, in Kidero and Four Others, v. Waititu and Four Others, Sup. Ct. Petition No. 18 of 2014 [2014] KLR-SCK [para. 341]:

“…generally, an election can only be declared void if that election did not substantially comply with the written law… – in this regard, the Constitution, the Elections Act, and the Regulations made thereunder, and any other relevant law; and, where there is substantial compliance with the written law in an election, the irregularities must indeed have affected the result of the election for that election to be invalidated.”

[189] Yet another authoritative decision of this Court is Obado v. Oyugi and Two Others, Sup. Ct. Petition No. 4 of 2014; [2014] KLR – SCK, in which it was thus held [para.139]:

“Although the Court of Appeal cited the decision of this Court in the Raila Odinga Case, it did not apply the principle that a Court should consider the effect of the irregularity in the contested results. This principle holds that irregularities in the conduct of an election should not lead to annulment, where the election substantially complied with the applicable law, and the results of the election are unaffected” [emphasis supplied].

[190] The Supreme Court ever so clearly defined the operative electoral law, on the basis of the Raila Odinga petition of 2013, in the subsequent petitions. The Court was scrupulously affirming the synchrony of two express edicts of the Constitution of Kenya, 2010 – in Article 1(3) and Article 159(1): the first defining the “sovereignty of the people”, and the second delimiting the judicial authority. By Article 1(3), the people’s sovereign power is partly delegated to “the Judiciary and independent tribunals” [Article 1(3)(c)]; while Article 159(1), which constitutes the judicial authority, thus provides:

“Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.”

[191] The foregoing principle was constantly reflected in the Supreme Court’s decisions rendered in 2013 and after – as is exemplified in George Mike Wanjohi v. Steven Kariuki and Two Others, Sup. Ct. Petition No. 2A of 2014, [2014], eKLR. In that case the Court thus pronounced itself [para.131]:

“This Court should in principle, not substitute a sitting [elected representative] with another, without allowing the people to execute their political rights, as enshrined under the Constitution. To do otherwise would be to undermine the values and principles of democratic governance that bind us, in the execution of our judicial authority. It would also lead to an upset in the composition of the elected [office-holders] who bear the people’s sovereignty, and would stand out as a clear disregard of the founding provisions of the Constitution” [emphasis supplied].

[192] In hindsight, the foregoing passage in the Mike Wanjohi Case touches on the very nub of judicial responsibility, as it relates to the sovereignty of the people, who established the totality of the current governance system, through the Constitution of Kenya, 2010.

[193] It hence follows that the general guiding path for the disposal of electoral disputes such as the instance one, could not have been stated more conscientiously and more effectively than it was in that case, thus [para.110]:

“By the design of the general principles of the electoral system, and of voting, in Articles 81 and 86 of the Constitution, it is envisaged that no electoral malpractice or impropriety will occur that impairs the conduct of elections. This is the basis for the public expectation that elections are valid until the contrary is shown….”

[194] A consideration of the merits of an electoral petition such as the instant one, therefore, takes one straight back to the evidence tendered; and here there is an inseparable link between constitutional principle, and the pillars of evidence. Since, as I have already determined, the petition herein fails on the pillars of evidence, it becomes clear that the majority decision lacks validity from the standpoint of governing principles.

[195] Evidence is the bearer of tell-tale signs of electoral victory, or of electoral defeat. The physical form of the ballot is directly visible, and is readily subjected to the test [Constitution of Kenya, 2010, Article 86] of simplicity, accuracy, verifiability, security, accountability and transparency. This physical evidence, quite clearly, is the natural starting point in ascertaining who has won an election: and hence the majority Judgment would have been expected to begin from a foundation of numerical assessment, before invoking any other parameters. For such other elements are essentially subjective, and are inherently destined to compromise the sovereign will of the voters which the Constitution expressly safeguards.

[196] Only from such a foundation of the physical vote-count, does one secure a proper viewpoint for the other dimensions of the electoral process, including the credibility of the entire operation. Indeed, in view of the relative strength of the evidence emanating from the two sides, the only objective conclusion would have been that, within the measure of the possible, the conduct of the election by the 1^st respondent was entirely credible.

[197] The emerging principle, regarding the initiation of claims by way of election petitions, is that all proof should commence from the foundation of the physical ascertainment of voting records. All other claims then, must revolve around that pillar, and must establish that some gross impropriety had affected the electoral process, and should lead to its annulment. I am constrained to propose this scheme as a proper agenda for the reform of Kenya’s electoral law. Such legal reform would need to institute all appropriate security back-ups around the physical records, and would ensure the establishment of safety-nets around the votes cast.

G. ISSUES OF BROAD, AND FREQUENT POLICY-MAKING, POLITICS, AND EXIGENCY: JURISPRUDENTIAL QUESTIONS

[198] The instant case has evoked intense national debate, involving professionals, politicians, observers, and others – the consequence being a justification, in this Judgment, for a clarification of the implications of judicial intervention in situations that entail the legitimate exercise of the citizen’s momentary inclinations, on matters of politics and daily exigency. Falling squarely within such a category are the people’s legitimate preferences. What is the proper stand for the Supreme Court, in such matters? How does the Judge’s requisite approach relate to the majority decision, in the instant petition? My consideration of such issues confirms my position in this dissenting Judgment.

[199] By Article 160(1) of the Constitution –

“the Judiciary…shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”

[200] The Constitution, while safeguarding the Judiciary’s adjudicatory space, entrusts certain governance-spaces to other agencies – primarily the Legislature and the Executive: and this is the basis for the constitutional principle, the separation of powers – a principle the validity of which, in the Kenyan constitutional order, has not ever been seriously contested.

[201] The Judiciary is the trustee of the people’s sovereign power [Article 1(3)] with regard to the interpretation and application of all the terms of the Constitution, and of all other law. Clearly, a substantial initiative in the motions of the entire sphere of law, legality and jurisprudence, has been reserved to the Courts.

[202] As the outer limits of such reserved competence has not been specified in express terms, it follows that the frontier areas of such power, at least potentially, admit of conflicting interpretive approaches. But, as already noted earlier, the proper trustee of the boundary-delimiting ethics must be the Judiciary – an arm of the state which is endowed with the special facility of juristic values; objective criteria of conflict resolution; a placid mien, such as facilitates professionalism, justice and fairness; and the benefit of access to relevant comparative lessons.

[203] The Judiciary, in the exercise of such an exclusive mandate, ought to enter upon its task by taking into account the uncontestable reserved remits of the other agencies of the state. The people, in exercise of their sovereign power, have expressly delegated some of that power to “Parliament and the legislative assemblies in county governments” [Article 1(3)(a)]; and they have exclusively entrusted some of their sovereign powers to “the national executive and the executive structures in the county governments.”

[204] There is no basis for abridging Parliament’s power and mandate; for the Constitution [Article 94(1)] prescribes that “the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.”

[205] Similarly there is no basis for detracting from the general character of executive power, Article 129(1) prescribing that “Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.”

[206] Unlike the Judiciary, the work-orbit of which is lined up with laws, principles and jurisprudential yardsticks, both the Legislature and the Executive, in view of their electoral and policy foundations, may quite properly be described as “political agencies.” They relate to the largest number of Kenyan people, in a close and direct proximity; they influence and are influenced by, the momentary concerns which, therefore, justify the conception and espousal of policy and politics conceived and executed within short time-frames.

[207] This is in stark contrast with the relationship between the ordinary citizen, and the Courts of law: and if the Courts overlook this reality, it will constitute a groundswell for failure of judicial responses in line with the professional, juristic remit.

[208] The prolonged history of judicialism, in all democratic countries, demonstrates that the proper role of the Courts has been professional, judicial, and founded upon cardinal principles which draw lines of correctness and propriety in situations of dispute, so as to secure a certain optimum level of safeguards for the rights of the citizen. Beyond that level of safeguard and fulfilment, it falls to the political agencies to pursue constantly, such policy stands as will satisfy, and give fulfilment to the national populace.

[209] On these principles of institutional disposition, it follows that it falls not to the Court, to make undue haste in assuming the policy mantle; a stampede is destined not only to disrupt the delicate institutional balances, but to weaken the reliable jurisprudential bedrock, which assures the citizens of an ultimate governance safety-net.

[210] In the context of the foregoing reasoning, it follows, in my view, that the majority on the instant petition, has made a precarious move, that is destined to prove detrimental to the dependable setting of relations among essential governance entities – to the detriment of the rights and legitimate expectations of the citizen.

[211] The majority on the Bench thus pronounced itself:

“(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles 10, 38, 81 and 86 of the Constitution as well as…Sections 39(1C), 44A and 83 of the Elections Act, the decision of the court is that the 1^st Respondent failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act….

“(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the 1^st Respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgement of the court…

“(iii) As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential election.”

[212] From such findings, the majority went on to make Orders nullifying the election results, as follows:

“(i) A declaration is hereby issued that the Presidential Election held on 8^th August, 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;

“(ii) A declaration is hereby issued that the 3^rd Respondent was not validly declared as the President elect and that the declaration is invalid, null and void;

“(iii) An order is hereby issued directing the 1^st Respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination….”

[213] Such a determination is in clear departure, in the first place, from the state of the evidence. As already indicated herein, the petitioners’ case rests on just one dimension of the electoral process – electronic transmission of results. Moreover, the bulk of the assertions made as regards transmission, is just that, contentions, with only limited testimonial ingredient: it is hardly “evidence” – what Black’s Law Dictionary, 8^th ed. (Bryan A. Garner) (St. Paul, MN: West, 2004) (p.595) thus rightly depicts:

“Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact….”

On the other hand, evidence in the true sense, a set of probative facts, is what came forth from the respondents: and its tenor and effect was that, there were only limited instances of failure of results-transmission; only limited cases of irregularity in vote-addition and tabulation, not affecting the ultimate compilation and summation; the lawful complementary device was put in service, in cases of failure in the transmission process; all the physical voting records were available, and indeed, had been timeously availed to the Supreme Court Registry, and could have been re-counted, to confirm that the 3^rd respondent had been properly declared as the President-elect.

[214] Thus, on basic elements of trial, the essence of burden of proof was undischarged; and it was, in effect, a reversal of the conventional process of judicial inquiry and determination – making a finding in favour of the petitioners.

[215] Secondly, the majority would appear to have taken leave of the juristic obligation to interpret the terms of the Articles of the Constitution invoked by the petitioners; the obligation to break these down, so as to ascertain the discrete demands of the law; the obligation to consider the pertinence of the specific statements of evidence from the petitioners, such as would answer to the constitutional and legal principles invoked.

[216] Thirdly, the majority departed, as it would seem, from the placid frame of the juridical setting, and assumed direct responsibility for the immediate calls of policy or politics – by altering the design of momentary, popular inclinations which are, by the terms of the Constitution, legitimate in all respects.

[217] The damage such as may flow from such a deportment, is not yet plain to all, as is quite clear from common perceptions recorded in the media, ever since the delivery of the majority Judgment. Alexander Chagema [The Standard, 7^th September, 2017, p.15] wrote of “a little shock therapy from the Supreme Court.” Wycliffe Muga [The Star, 7^th September, 2017, p.20] thus wrote:

“[When] I listened to the Supreme Court ruling on the presidential petition […] I knew very well that I was watching history being made.”

The Nairobi Confidential of 4-10 September, 2017 [p.2] thus remarked:

“The Supreme Court ruling that nullified the election of [the 3^rd Respondent] on Friday has thrown Kenya into one of the most complex and expensive political situations.”

And Decky Omukoba in The Standard, 11^th September, 2017 [p.14] thus wrote:

“What we have experienced as a nation is definitely a shift! The recent ruling by the Supreme Court to nullify a presidential election has never happened before in the history of this nation, or even this continent but it is undoubtedly a political and judicial shift that has risen from years of tectonic plates of power pushing on each other within a constricted democratic space.”

[218] The general perception associates the majority Judgment with an overtly political inclination. This, precisely, is the Judgment’s obvious departure from the professional plane of jurisprudence, as the proper platform of the judicial arm of the state. The majority position would, of course, make history, emanating from a basic principle aptly depicted by the distinguished historian, Professor Bethwell A. Ogot [History as Destiny and History as Knowledge: Being Reflections on the Problems of Historicity and Historiography (Kisumu: Anyange Press, 2005), p.8]:

“To tell the story of a past so as to portray an inevitable destiny is for humankind, a need as universal as tool-making. To that extent, we may say that a human being is, by nature, historicus.”

So, by the “magic jolt” of 1^st September, 2017, general political history would have been made, even though, as I maintain, this represents a departure from the jurisprudence of democratic systems, which so much cherishes the separation of powers, and which so studiously commits the Judiciary to the professional task of line-drawing, to ensure the sustenance of regular safeguards of the Constitution and the law, for all.

[219] In future inquiries, it may be established that the law, as advanced by its interpreters and scholars, has its anchorage on the adjectival plane, from which it addresses the primary motions of social, economic and political activity – agriculture, architecture and engineering, land development, seafaring, sport, transport and communications, and others. The law stands to be formulated, moulded, interpreted and applied, not for its own sake and in its own cause, but in relation to the said primary motions, which preoccupy citizens and communities.

[220] Thus, in the instant case, the electoral process had taken place, and now, its motions had to be matched to the law as interpreted. By the interpretive scheme of the law, it does not stand the test of rationality or efficacy, to merely allege some unspecified impropriety in the electoral process. The relevant clause of the Constitution must be taken through an analytical process, and subjected to definite categorizations which crystallise the specific concepts and elements said to have been violated. By this criterion, most of the contentions of the petitioners in the instant case, on account of their broad generality, would not stand up. The interpretive task, as it thus relates to the adjectival essence of the law, is inherently professional – and is reflected in the concept of jurisprudence, which “deals with thought about law” [R.W.M. Dias, Jurisprudence, 4^th ed. (London: Butterworths, 1976), p.17].

[221] The Court, in the normal performance of its role, under the Constitution, is engaged in the specialized process of jurisprudence. It follows that the more immediate, urgent and primary motions of basic policy-making, inherently devolve to the political arms of the State, rather than the more specialized entity which is the Judiciary.

[222] This Judgment, apart from the occasion it proffers for a reflection on the law relating to elections, is a basis for a rethink on law as a concept, and as a professional engagement, defined in a regulatory framework applicable to the citizens’ primary undertakings. From such a platform, it emerges that the law’s design in the hands of the judge, the lawyer and the scholar, rests in unity with the fundamentals of constitutional governance – an important element of which is the independence of the judiciary. On the basis of this principle, it is to be recognized that the judge’s proper mandate lies several removes from the citizen’s momentary policy and political desires and expectations – which generally devolve to the state’s political agencies. By this perception, the judge’s proper remit has its focus upon professional engagement, founded upon objective scenarios, or criteria.

[223] Such a perception of law and legal process, in retrospect, will be found to be in conformity with the analytical schemes that mark the dedicated works of great jurists of the past. Definite exemplars, in this regard, are the following jurists:

(i) Lord Mansfield (1705-1793) – see W.S. Holdsworth, “Lord Mansfield”, The Law Quarterly Review, Vol. 53 (1937), pp. 221-234; Edmund Heward, Lord Mansfield, 2^nd Indian Reprint (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2011);

(ii) Professor Frederic William Maitland (1850-1906) – see O.W. Holmes, “In Memoriam: Frederic William Maitland,” The Law Quarterly Review, Vol.23 (1907), pp.137-138; Robert L. Schuyler (ed.), Frederic William Maitland Historian: Selections from His writings (Berkeley: University of California Press, 1960);

(iii) Lord Atkin of Aberdovey (1867 – 1944) – Atkin, “Law as an Educational Subject”, Journal of the Society of Public Teachers of Law (1932), pp. 30-58; Geoffrey Lewis, Lord Atkin, 2^nd Indian Reprint (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2008);

(iv) Justice Oliver Wendell Holmes, Jr (1841 – 1935) – see Holmes, The Common Law (Boston: Little, Brown and Company, 1881);

(v) Justice Benjamin Nathan Cardozo (1870-1938) – see Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921);

(vi) Professor Stanley Alexander de Smith (1922 – 1974) – see de Smith, Constitutional and Administrative Law, 3^rd ed. (Harmondsworth: Penguin Books, 1977);

(vii) Lord Denning of Whitchurch (1899 – 1999) – see Denning, What Next in the Law (Oxford: Oxford University Press, 1982).

[224] The special contribution of these judges and law scholars was to light up the orbit of jurisprudence, as a dedicated sphere of thought, learning and preoccupation, that secured the requisite motions of the different spheres of human activity, while affirming the perceptions of integrity and propriety.

[225] Such is the jurisprudential context in which I have considered the petition herein. The majority decision, in effect, holds that the Court may, quite directly, engage the course of national history – through a precipitate assumption of recurrent policy-making or political inclinations and mandates. In my considered opinion, judges, where the making of history devolves to them, should focus their attention in the first place, upon the intellectual and jurisprudential domain – rather than upon the workaday motions of general policy and politics which devolve to the citizens themselves, and to the political agencies of state.

[226] On these premises, I hold that the majority decision fails to resonate with the Constitution and the law, and with all relevant guiding principles. I would dismiss the petition with costs.

DATE and DELIVERED at NAIROBI this 20^th of September, 2017.

………………………………………………

J.B. OJWANG

JUSTICE OF THE SUPREME COURT

I certify that this is a true copy

of the original

REGISTRAR

SUPREME COURT OF KENYA

DISSENTING OPINION OF NJOKI S. NDUNGU, SCJ.

 

A. INTRODUCTION

[1] By a Petition dated 18th August, 2017, and supported by evidence in the form of twelve Affidavits, the Petitioners alleged that the Presidential election was so badly conducted by the 1st Respondent that it failed to comply with the governing principles laid in the Constitution of Kenya, the Elections Act, 2011 and the Regulations made thereunder including the Electoral code of conduct. In summary, the Petitioner‘s case was that the non-compliance fatally compromised the conduct of the election and consequently, the declaration of the 3rd Respondent by the 2nd Respondent as the President-elect.

[2] After conclusion of the hearing and in strict conformity with the constitutional 14-day directive, the Court in a summary by the majority (Maraga CJ & P, Mwilu DCJ & DP, Wanjala & Lenaola, SCJJ) delivered its decision nullifying the entire Presidential Election in the following terms:

(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles 10, 38, 81 and 86 of the Constitution as well as, Sections 39(1C), 44, 44A and 83 of the Elections Act, the decision of the court is that the 1st Respondent failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.

(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the 1st Respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of the 3rd Respondent.

(iii) As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.

[3] Having carefully evaluated the pleadings and the evidence, and having carefully dissected the submissions of the parties during the hearing, I was of a different conclusion summarized in the form reproduced below:

[1] The Court has rendered its Judgement by a majority. I am however, of a different opinion. At the heart of democracy are, the people, whose will constitute the strand of governance that we have chosen as a country. On 8th August, 2017, millions of Kenyans from all walks of life yielded to the call of democracy and queued for many hours to fulfill their duty to our Republic by delegating their sovereign power to their democratically elected representatives. This was an exercise that was hailed by many regional and international observers as largely, free, fair, credible and peaceful. That duty stands sacred and is only to be upset if there is any compelling reason to do so. That reason must affect the outcome of the election.

[2] The election was managed by the 1st Respondent chaired by the 2nd Respondent who were assisted by hundreds of others to execute the mandate of the Commission under Article 88 of the Constitution. At the end of the process, the 2nd Respondent, in accordance with Article 138 (10) of the Constitution, declared the result of the election. Having received more than half of all the votes cast in the election and at least twenty-five percent

of the votes cast in each of more than half of the Counties, the 3rdRespondent was declared President-elect.

[3] The case revolved around three fundamental questions:

(i) whether the election was conducted in accordance with the Constitution and the law?

(ii) whether there were irregularities and illegalities committed during the conduct of the election and

(iii) if there were irregularities and illegalities, what was the integrity of the election?

In answer to these three issues, my opinion is that the election was indeed conducted in accordance with the Constitution and the law. In fact, the 1st and 2ndRespondents to my satisfaction demonstrated that they had adhered to the directions given by the Court of Appeal in the case of Independent Electoral and Boundaries Commission vs. Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017 (the Maina Kiai case). The Court of Appeal in this case cautioned, and I agree, that the results declared at the polling station are final. In fact, the polling station is at the heart of any election. It is what happens there that is to be assessed and that is why its outcome is final.

[4] In any election, the ordinary Kenyan voter will ask themselves the following questions?

(1) Was there a problem with registration of voters?

(2) Were voters properly identified at the polling station? (3) Were voters allowed to cast their ballots peacefully and within good time?

(4) Were the votes cast-counted, declared and verified at the polling station to the satisfaction of all parties?

If the answer to all these questions is in the affirmative, then the election has been conducted properly.

[5] The Petitioners in my view 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. What was fiercely contested was the mode through which those results were transmitted from the polling station to the National Tallying Centre. The 1st and 2ndRespondents urged that transmission was conducted in line with the directions by the Court of Appeal in the Maina Kiai case. This 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, which is the polling station, was unchallenged.

How then can 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 this Court or the country in doubt as to what the result of the election was. Challenges which are to be expected during the conduct of any election. However, those challenges which occurred, (and in my opinion, 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.

[6] In summary, I respectfully disagree with the decision of the majority, and in accordance with Section 26(2) of the Supreme Court Act, 2011, will issue my full dissenting Judgment within 21 days.

[4] I now proceed to give the full rendition of my judgment, bearing the expounded reasons upon which this dissent is founded.

[5] I also adopt the comprehensive pillars analyzing the Petition, Supporting evidence, the Responses, and the Parties‘ submissions, including the opinion of amici curiae, contained in the dissenting Judgement of my brother, Justice J.B Ojwang, SCJ.

B. OUTLINE

[6] This dissenting Judgement commences with an introduction about the nature of the Petition culminating in my summarised dissenting Judgement delivered on 1st September, 2014, exactly 14 days after the Petition challenging the results of the Presidential Petition was initially filed at the Supreme Court Registry.

[7] The starting point of my dissent is: (1) The proper context of the jurisdiction of this Court sitting as an Election Court; (2) A thorough analysis of the remit of this jurisdiction leads to the conclusion that election causes are right-centric in nature.

[8] In totality, I analyse the Petitioners‘ case under the following additional considerations: (3) Articles 81 and 86 of the Constitution (4) The process of Transmission (5) Burden and Standard of proof (6) Weighing the Evidence adduced in Affidavits (7) Access to Information Orders by the Court (8) The Evidence Submitted to the court pursuant to Section 12 of the Supreme Act, 2011 (9) Section 83 of the Supreme Court Act and the question of Compliance (10) Preserving Kenya‘s electoral jurisprudence (11) Conclusion and (12) Determination.

C. THE SUPREME COURT‘S ORIGINAL JURISDICTION: SETTING THE PARAMETERS

i. The Supreme Court as an election Court

[9] The Jurisdiction of the Supreme Court to hear and determine questions as to the validity of a presidential election is set out in Article 163 (3) (a) of the Constitution in the following terms:

163 (3) The Supreme Court shall have-

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140;

In this regard, the Supreme Court constituted in the terms of Article 163(3)(a) discharges its mandate as an election Court. Section 2 of the Elections Act, 2011 defines an "election court” as follows:

An "election Court” means the Supreme Court in exercise of the jurisdiction conferred upon it by Article 163(3)(a) or the High Court in the exercise of the jurisdiction conferred upon it by Article 165(3)(a) of the Constitution or the Resident Magistrate‘s Court designated by the Chief Justice in accordance with Section 75 of this Act;

[10] According to the Black‘s Law Dictionary, 8th ed (2004), "exclusive jurisdiction” means:

"A court‘s power to adjudicate an action or class of actions to the exclusion of all other courts….”

[11] In the Raila Odinga case, this Court clarified the bounds of its exclusive original jurisdiction as follows, at paragraph 208:

[208] A Petitioner against the declaration of a candidate as President-elect, under Articles 163(3)(a) and 140 of the Constitution as read together with the provisions of the Supreme Court Act, 2011 (Act No. 7 of 2011) and the Supreme Court (Presidential Elections) Rules, 2013 (now 2017), is required to present a specific, concise and focused claim which does not purport to extend the Supreme Court‘s jurisdiction beyond the bounds set out in the Constitution. It follows that the Court will only grant orders specific to the Presidential election. [Emphasis added]

[12] The Supreme Court is therefore, the first (original), only (exclusive) and final resort for any party challenging the election of any person to the Office of the President. It determines presidential election petitions to the exclusion of all other Courts. This jurisdiction is also limited in time. The Constitution requires one to petition quickly and particularly. This restriction, on extent and time, is not without basis. As decided in Raila Odinga & Others vs. Independent Electoral & Boundaries Commission, Supreme Court Petition N0. 5 of 2013 (The Raila 2013 case), the parties must present a clear, concise case supported by cogent evidence. This jurisdiction even though limited in time and scope, revolves around critical constitutional questions. The requirement for particularity is therefore important to ensure that the case presented before the Court is properly proved (in line with the set parameters of the burden and standard of proof).

ii. Election causes are right-centric and not form-centric

[13] The peculiar nature of the Supreme Court‘s finality on interpretation of the Constitution and the law and the central theme in elections, i.e. the right to vote in free and fair elections, presents an inescapable conclusion: the Supreme Court, as an election Court, is engaged by the parties in a right-centric cause driven by evidence and in the terms of its decision in the case of Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others, Civil Application No. 5 of 2014 (the Munya 1 case), in making its determination, the Court, must not disengage from the Constitution.

[14] It is proper to emphasize that the Supreme Court in discharging its mandate as an election Court, remains the precedent-setting forum in the country and its decisions must be carefully analysed to ensure that a jurisprudential crisis or confusion does not ensue. Were that to happen, the Court would have failed the Constitution and the people. These considerations have been emphasized by this Court before. In the case of Aramat vs. Lempaka & Others, Supreme Petition No.5 of 2014, (the Aramat case) at paragraphs 88, 101 and 102, the Court held (by a majority):

[88] The context in which we must address the question of jurisdiction in the instant matter, however, imports special permutations, and a special juridical and historical context that calls for further profiling to the concept. By the Constitution of Kenya, 2010 (Article 163), a Supreme Court, with ultimate constitutional responsibility, and bearing binding authority in questions of law, over all other Courts, has been established. The exclusive, dedicated role of the Supreme Court under the Constitution takes several forms: for example, it has "original jurisdiction to hear and determine disputes relating to the elections to the office of President” [Article 163(3)(a)];

[101] We would make it clear in the instant case that, it is a responsibility vested in the Supreme Court to interpret the Constitution with finality: and this remit entails that this Court determines appropriately those situations in which it ought to resolve questions coming up before it, in particular, where these have a direct bearing on the interpretation and application of the Constitution. Besides, as the Supreme Court carries the overall responsibility [The Constitution of Kenya, 2010, Article 163(7)] for providing guidance on matters of law for the State‘s judicial branch, it follows that its jurisdiction is an enlarged one, enabling it in all situations in which it has been duly moved, to settle the law for the guidance of other Courts.

[102] The Supreme Court‘s jurisdiction in relation to electoral disputes is, in our opinion, broader than that of the other superior Courts. We note in this regard that while the Court of Appeal‘s jurisdiction is based on Section 85A of the Elections Act, with its prescribed timelines, that of the Supreme Court is broader and is founded on the generic empowerment of Article 163 of the Constitution, which confers an unlimited competence for the interpretation and application of the Constitution; and this, read alongside the Supreme Court Act, 2011 (Act No. 7 of 2011) illuminates the greater charge that is reposed in the Supreme Court, for determining questions of constitutional character. [Emphasis added]

[15] The thrust of the foregoing paragraphs can be summed up as follows: the Constitution is Kenya‘s guiding Order. It has organized Kenya‘s governance character and infused accountable governance, public service and responsible citizenship. The Judiciary bears the enviable, but extremely difficult and rewarding duty of giving the Constitution, comprehensible interpretation that is stable, consistent, predictable, certain and true to the sovereignty of the people. Undergirding this sovereignty is the ability of every Kenyan to enjoy his/her full human-character guaranteed by an elaborate charter on rights. A determination of a dispute akin to the one before us cannot therefore be mechanically disposed of without paying due regard not just to the letter or spirit but also the conception of the Constitution itself. At the core of the Constitution is sovereign will, at the soul of sovereign will are the people, and central to the people are their rights.

[16] What then is the complete description of an election cause within Kenya‘s constitutional system? An answer lies in the inaugural, elaborate jurisprudence laid by this Court and applied by lower Courts in a number of election cases.

In Moses Masika Wetangula vs. Musikari Nazi Kombo & 2 Others, Supreme Court Petition No. 12 of 2014 (the Wetangula case), this Court held, at paragraphs 107 and 112:

[107] The description of election petitions as causes sui generis, is in every respect apposite. An election petition is a suit instituted for the purpose of contesting the validity of an election, or disputing the return of a candidate, or claiming that the return of a candidate is vitiated on the grounds of lack of qualification, corrupt practices, irregularity or other factor. Such petitions rest on private political or other motivations, coalescing with broad public and local interests; they teeter in their regulatory framework from the civil to the criminal mechanisms; and they cut across a plurality of dispute-settlement typologies.

[112] The overriding objective of the Elections Act is to functionalize and promote the right to vote. This requires a broad and liberal interpretation of the Act, so as to provide citizens with every opportunity to vote, and to resolve any disputes emanating from the electioneering process. The primary duty of the election Court is to give effect to the will of the electorate; and consequently, the Court is to investigate the nature and extent of any election offence alleged in an election petition. Accordingly, the happenings that touch on the due conduct of the election process, come as proper items of agenda in the tasks of an election Court. [Emphasis supplied]

In George Mike Wanjohi vs. Steven Kariuki & 2 Others, Supreme Court Petition No. 217 of 2014, (the Mike Wanjohi case) it was held, at paragraph 112:

112. [A]part from the priority attaching to the political and constitutional scheme for the election of representatives of governance agencies, the weight of the people‘s franchise - interest is far too substantial to permit one official, or a couple of them, including the Returning officer, unilaterally to undo the voters‘ verdict, without having the matter resolved according to law, by the judicial organ of State. It is manifest to this court that an error regarding the electors‘ final choice, if indeed there is one, raises vital issues of justice such as can only be resolved before the courts of law. [Emphasis supplied]

[17] An election cause is a right-centric cause. At the heart of a Petition challenging the results of a presidential election is the right to vote in free and fair elections. This right is at the epicenter of Kenya‘s democratic character as a Republican state. Interpretation and application of the Constitutional provisions touching on elections must therefore be read holistically with each provision reinforcing the other. This approach has been consistently applied by other Courts in the region and embedded in the theory of constitutional interpretation in our own jurisdiction. In Olum vs. The Attorney-General of Uganda [2002] E.A. 508, this principle was enunciated thus:

" [T]he entire Constitution has to be read as an integrated whole and no particular provision destroying the other but each sustaining the other. Constitutional provisions must be construed as a whole in harmony with each other without insubordinating any one provision to the other.

In Re Kenya National Human Rights Commission, Supreme Court Advisory Opinion Reference No. 1 of 2012, this Court held as follows:

" It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.” [Emphasis supplied]

iii. Evidence in an election Court

[18] What then is the law on evidence to be presented in an Election Court? Evidence is an imperative of the right to fair hearing. Article 50 (4) of the Constitution cautions that:

50 (4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

[19] Evidence is the epicenter of any trial. The nature of a presidential election petition does not displace the basis of the law of evidence outlined in The Law of Evidence Act, Cap 80 of the laws of Kenya. Section 80 of the Elections Act, 2011 expresses that among the powers of an election Court in exercise of its jurisdiction is: summoning and swearing in witnesses in the same manner, or as nearly as circumstance admit, as in a trial by a Court in exercise of its civil jurisdiction. Article 163 (3)(a) proceedings before this Court although regulated by the Supreme Court Act, 2012 and the attendant Presidential Election Petition Rules, 2017, allow reliance on Affidavit evidence. In order for that evidence to bear cogent value, it must meet the demands of proof.

[20] This Court‘s role in exercise of its exclusive original jurisdiction ought to be thorough fact-finding and interpretation of the Constitution and the law in the terms set out in the foregoing paragraphs. In cases of factual prerequisite such as this one, interpretation of the law devoid of complete and exhaustive factual examination is by itself, an insufficient basis upon which to make the final determination contemplated under Article 140(2) of the Constitution. The evidence adduced must be clear to show that what was declared was not the result. Electoral processes have assumed a fair presumption of correctness. To rebut this presumption requires proof to a high degree that the resulting declaration is not trustworthy. This is drawn from the democratic legitimacy accorded to elections by the Constitution. The test of invalidating an election must be a clear one. A new election should be conducted only when voters have been completely prevented from accurately registering their intended preference in numbers sufficient to affect the outcome. A determination to hold a fresh election in terms of Article 140(3) should only be made if the following questions are considered, analysed and determined conclusively:

(i) Was the final outcome of the election the result of fraud, mistake or omission which precluded the certified vote total from correctly aggregating all voters‘ independent, non-coerced and non- procured preferences?

(ii) Is the outcome incapable of being trusted to reflect the will of the people?

(iii) Can a reliable outcome be determined in a manner other than holding a fresh election?

[21] An attempt to displace elections without proper recourse to the stated case and evidence amounts to an unfair dislocation of accrued rights under the Constitution- to the people and their elected representatives. The Court must protect the rights of the candidate(s) and by the same stroke, ensure that the rights of the electorate are not compromised. Only a clearly pleaded and proved case will warrant voiding of an election.

[22] The right to vote in free and fair elections is violated when a Court, without comprehensive understanding and analysis of the evidence displaces the electorate by halting an election and deciding the outcome itself. An election, unless clearly proven to have been conducted in gross violation of the Constitution and the law, affecting the ultimate outcome, must never be taken away from the voters. The electorate, by dint of Article 1 of the Constitution is entitled to be represented by men and women of their choice. In resolving electoral disputes, the Judiciary must set upon this duty as a judicial, not a political actor. In so doing, its guiding force must be proper exercise of judicial authority granted under Article 159 of the Constitution. It must consider rights, not form.

[23] On this basis, I now set upon the legal and factual analysis of my decision with close reference to the pillars set out in the Judgement of my brother, Justice J.B Ojwang, SCJ.

D. RIGHT-CENTRIC OR FORM-CENTRIC? INTERPRETING AND APPLYING ARTICLE 38 OF THE CONSTITUTION OF KENYA, 2010: WHICH WAY FOR THE SUPREME COURT SITTING AS AN ELECTION COURT?

[24] It is not in doubt that the Majority base their decision on an interpretation of Section 83 of the Elections Act and in doing so they have read-in the provisions of Articles 81 and 86 of the Constitution. They state that the electoral process has not met the requirements as listed in those Articles. In my opinion this is a narrow and restrictive interpretation of the law. I find that the Majority in doing so, limited itself to operational and aspirational constitutional principles but failed to firstly; address the substratum of the issue at hand- the grundnorm of Constitution- the sovereignty of the people and the centrality of the people in the entire architecture of the 2010 Constitution; but secondly used a restrictive test in assessing whether a claim that the right to vote had been violated in any way had been made.

[25] Let me set out by reinforcing the essence of the voter, who bears the right of franchise. Justice Albie Sachs aptly captured this essence in the case of August and Another v Electoral Commission and Others [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (August):

" Universal adult suffrage on a common voters‘ roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans (read, Kenyans) regardless of race, and for the accomplishment of an all embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.” [Emphasis added]

[26] The interpretation and application of the Bill of Rights must not be mechanical or limited by a Court‘s interpretation of legislation. To favor legislation over the Constitution would be an affront to the Supremacy of the Constitution, which reads:

Article 2.

1.(1)This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

(2) No person may claim or exercise State authority except as authorised under this Constitution.

(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

(4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

The correct approach ought to be that espoused in the Canadian case of R vs. Big M Drug Mart Ltd 1 S.C.R. 295, 18 D.L.R. (4th) 321

The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be...a generous rather than legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefit of the Charter's protection.

[27] The exercise of the sovereign power of the people in relation to the political processes of the State is to be found first in Article 1 which provides that all sovereign power belongs to the people of Kenya who exercise their power directly or through their elected representatives and also delegate it to the three arms of government at both national and county level. The second reference to this sovereign power of the people is to be found in the Bill of Rights under Article 38(2) and (3) of the Constitution where it is stated that:

38 (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.

[28] There cannot be any doubt at all that in interpreting and applying any provision of this Constitution, the Elections Act and Regulations there-under, this Court must adopt an interpretation that promotes the grundnorm in Article 1 and the right to vote in Article 38.

[29] Articles 81 and 86 of the Constitution reinforce the right to vote elaborated under Article 38 of the Constitution. These constitutional provisions must therefore be applied to this core right and not vice versa. Articles 81 and 86 are to be facilitative of the fundamental rights under Article 38, in addition to other provisions of the Constitution. In fact, there are many other Articles of the Constitution, Legislation and Regulations whose purpose is intended to give effect to, facilitate and support the right to vote as provided for under Article 38. In the application and implementation of those provisions – the centrality of Article 38 as the primary purpose for their existence must never be lost.

[30] This was the position elaborated in the case of Evans Kidero & Others vs. Ferdinand Waititu & Others, Supreme Court Petition No. 20 of 2014, (The Kidero case) this Court held, at paragraphs 137 and 138:

[137] Chapter Seven of the Constitution is entitled "Representation of the People” and bears the sub-title"Electoral System and Process”, with further sub-title "General Principles of the Electoral System.” Articles 81, 82, 83, 84, 85, 86 and 87 all fall under this Chapter. It is plain to us that most of the provisions in these Articles are rendered in the form of principlessome general, and others not so general. And, thus expressed, it is unavoidable that most of these principles are not self-executing: which fact moves the judicial forum to centre-stage, as regards interpretation and application.

[138] These principles cannot crystallize into deliverables of public goods, such as those in the nature of governance and elections, without further legislative action.

Thus, Article 82 (1) (d) provides as follows:

"Parliament shall enact legislation to provide for

……

(a) the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections

(2) Legislation required by clause (1) (d) shall ensure that voting at every election is

(a) simple;

(b) transparent and;

(c) takes into account the special needs of

(i) persons with disabilities and;

(ii) other persons or groups with special needs. [Emphasis added]

[31] A reading of the majority decision also appears to presume that the only test for ascertaining the credibility of the election process, or more correctly for assessing any violation of the rights under Article 38, lie in Articles 81 and 86. This is not the case. Articles 82 and 83 also go to the specifics of the electoral process that support the right under Article 38. Article 82 and 83 address the registration of voters and 83 underlines the requirements of the voting exercise itself – as simple, accurate, and taking into account those with special needs. Article 83(3) states clearly that "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 rights to vote or stand for election” The upshot being that the test for assessing a violation claim under Article 38 must be more comprehensive than the aspirational guidelines set under Articles 81 and 86. Cherry-picking constitutional provisions to determine a right-centric cause on the basis of formal considerations - the choice of form over rights - undermines a purposive approach to the interpretation and application of the Constitution.

[32] The Constitution in Article 259(1) also clearly sets out the framework of applicable principles while interpreting the Constitution.

This Article provides that;

259 (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking….” [Emphasis added]

[32A] Further the Constitution provides under Article 20(3):

20(3) In applying a provision of the Bill of Rights, a Court shall-

(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and

(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom. [Emphasis]

In my opinion, the Majority has not given effect to the people‘s right to franchise and have not interpreted it broadly and in a manner that most favours its enforcement.

[33] The case for the advancement of the Bill of Rights clearly must therefore be at the forefront of any judicial determination under the Constitution of Kenya 2010.

[34] There is a more complex issue that must be addressed-Article 19 of the Bill of Rights, Chapter IV of the Constitution states as follows:

Part 1—General provisions relating to the Bill of Rights

Rights and fundamental freedoms

2. (1) The Bill of Rights is an integral part of Kenya‘s democratic state and is the framework for social, economic and cultural policies.

(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.

(3) The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and

(c) are subject only to the limitations contemplated in this Constitution. [Emphasis added]

[35] If the rights under Article 38 may not be limited other than by a specific provision of the Constitution, can an interpretation of Articles 81 and 86 purport to take the essence of those rights away from any Kenyan? Where a voter has made his choice known, having been registered in accordance with Articles 82 and 83, 138(3) (a), having voted in accordance with Articles 81, 83 and his vote counted at the polling station (Art 138(3) (c), and the result announced at the polling station in accordance with the Constitution and the law - and the outcome is known and uncontested – then can a general principle non-specific to any precise act – overturn that choice and undermine a fundamental right? Can an operational aspect of an election (read as forming part of Art 81) cancel a result/outcome (read Art 38) that is unchallenged? And further, where in fact the election is not challenged as to the aspect that the result/outcome (Art 38) has been violated? Can a claim that does not plead violation of a fundamental right, extinguish the enjoyment or exercise of that right? Can it be argued that there are two competing provisions of the constitution: one provision guaranteeing the right and the other, burdening the enjoyment of that right? And if this is the case how would one balance to ensure an outcome that does not upset the will of the people?

[36] We can draw lessons from the observations of Prof. Rex Martin on the exposition of John Rawls‘ Theory of Justice, in his book Rawls and Rights, where he states:

"The weight of a right is a determination, sometimes explicit and sometimes not, sometimes quite exact and sometimes rather imprecise, of how it stands with respect to other normative considerations and whether it would give way to them or they to it, in cases of conflict” .

[37] Similarly, a scholar, Nur Kayacan, Derya in her paper, "How to resolve Conflicts Between Fundamental Constitutional Rights, (Saar Blueprints) puts across an interesting point, with which I fully agree with, that :

"The discretion that the judges enjoy when applying the balancing method is a part of their duty as the guardians of law. One general rule, which embraces all of the situations in which a conflict occurs and gives a common technique to resolve them all, cannot possibly be formulated. Even if a single solution was to be formulated, it would not serve justice in each situation, since every case has its own specific circumstances. Also the discretion of the judges is not without any limits; they have to follow the principle of proportionality.

The answer to the question, how to resolve conflicts between fundamental constitutional rights, is, at the end quite simple. Balancing ...”

[38] Thus even if there may appear to be a perception that a competing rights situation exists – that is between Article 38 and 81 and 86 - there must be a balancing and an application of proportionality to effect a judicial outcome that serves the dictates of the Constitution. One must recognize that not all claims will be equal before the law: some claims have been afforded a higher legal status and greater protection than others. While there are many situations in which rights, principles, and values may seem to conflict or compete, when evaluating situations of competing rights, human rights, especially those provided in a Bill of Rights and will usually hold a higher status than principles and values. This rationale is further underlined by the architecture of our Constitution, which actually ring-fences the Bill of Rights from amendment which may be made only through referendum by the people of Kenya unlike the principles in Article 81 and 86, which may be amended by elected leaders in Parliament. This plebiscite protection in itself - places the Bill of Rights - higher in the pecking order of competing provisions in the Constitution. The principle therefore should complement the right not vice versa. The principles in Article 81 and 86 therefore cannot trump the fundamental rights as provided for under Article 38; and certainly they cannot undermine the provisions of Article 1 on the sovereignty of the people. Further they ought not compete with all international treaties that provide and protect the right to vote and to which Kenya is a signatory, and which are part and parcel of our constitutional order under Article 2.

[39] We can go further to draw from decisions of the Indian Supreme Court as relates to the conflict between the fundamental freedoms and the Directive principles in the India constitution. Harmony between aspiration, reinforcing or guiding provisions and rights is however critical. In India the Constitution provides for both fundamental rights and directive principles. The Indian Supreme Court has, in a number of judgments, called these principles the "conscience” of the Constitution and also as the core of the Constitution. That Court has held that the courts can look at the Directive Principles for the purpose of interpretation of the fundamental rights and adopt that interpretation which makes the fundamental rights meaningful and efficacious. But more importantly the Indian Supreme Court has pronounced itself on the instances where a conflict between fundamental rights and directive principles should arise. In State of Madras v. Champakam Dorairajan AIR 1951 SC 226, the Supreme Court held that the directive principles are not enforceable by court stating that the chapter on Fundamental rights in the constitution is sacrosanct and the directive principles have to conform to and run subsidiary to the chapter on Fundamental Rights. Similarly in 1967, a bench of 11 judges of the Supreme Court in Golak Nath vs. The State of Punjab AIR 1643, 1967 SCR (2) 762 (1967), found that fundamental Rights cannot be abridged or diluted to implement the directive principles. This means that Fundamental Rights were given superiority over the Directive principles.

[40] The conclusion may therefore be drawn that fundamental rights constitute the foundation of the any Constitution and any accompanying values and principles are to be complementary and not to detract from the Constitution. The rights in Article 38 remain central to any election cause and it is claim of the violation of those rights that ought to take center-stage in such a cause and not the form that accompanies it in the periphery.

[41] Having determined that election causes are right-centric in nature, and having discussed the centrality of every citizen‘s right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for any elective public body or office established under the Constitution, I now evaluate the alleged violation of Articles 81 and 86 of the Constitution of Kenya, 2010 and its effect upon the outcome of the presidential election.

E. THE ALLEGED VIOLATION OF ARTICLES 81 AND 86 OF THE CONSTITUTION OF KENYA, 2010 AND ITS EFFECT UPON THE OUTCOME OF THE PRESIDENTIAL ELECTION.

(i) The Case

[42] The Petitioners averred that there were massive, systematic, systemic and deliberate non-compliance with the Constitution and the law which contravened the principles of a free and fair election under Article 81(e) of the Constitution as read together with Section 39, 44 and 44A of the Elections Act, 2011 and the Regulations thereunder. The Petitioners asserted that the relay and transmission of results from Polling Stations to the Constituency and the National Tallying Centre was not simple, accurate, verifiable, secure, accountable, transparent and prompt contrary to the provisions of Article 86 of the Constitution. The Petition elaborated that the non-compliance was:

On Forms 34A and 34B:

a) The data and information recorded in Forms 34A at the individual polling stations were not accurately and transparently entered into the KIEMS Kits.

b) The data entered into the KIEMS Kits ought to have been accompanied by an electronic picture or image of the prescribed Form 34A.

c) The Practice Manual verbally communicated and publicly demonstrated by the 1st Respondent to the parties, stakeholders and observers demonstrated that transmission of any data from the KIEMS kit was only possible if the data was simultaneously accompanied by the image of the Form 34A. That according to late ICT Manager of the 1st Respondent, Mr. Chris Msando, the submit button was programmed to function only when the data was accompanied by the electronic image of Form 34A.

d) The results from over 10,000 polling stations were not accompanied by an electronic image of Form 34A and that the results declared from these polling stations represented approximately 5 million voters.

e) The data being publicly displayed by the 1st Respondent was not consistent with the information on Forms 34A.

f) The 1st Respondent received in excess of 14,000 defective returns from polling stations affecting over 7 million votes.

g) The information on Forms 34B did not correspond with that in the primary Forms 34A making them inaccurate, unverifiable and invalid.

h) Inconsistencies in Forms 34B accounted for at least 7 million votes.

i) At the time of declaring the result, the 1st Respondent did not have 187 Forms 34B.

j) The computation and tabulation of results in a significant number of Forms 34B was not accurate, verifiable and internally consistent.

k) The purported results in the 1st Respondent‘s Forms 34B were materially different from what the 1st Respondent publicly relayed and continued to relay as at the time of filing in its website or portal

l) That the results in Forms 34B were inaccurate and had mathematical additions in favour of the 3rd Respondent.

m) That some returns in a material number of polling stations were not in the prescribed Forms 34A and 34B contrary to Regulations 79(2)(a) and 87(1)(a).

n) That Forms 34B bore fatal irregularities affecting 14,078 polling stations.

o) That a number of forms and returns were not signed, some forms did not indicate names of the Returning Officer, some did not bear the IEBC stamp, some Forms 34A and 34B did not bear the signatures of the candidates‘ agents nor the reason for refusing to sign, some were signed by the same person presiding in different polling stations.

p) In more than half of the Constituencies, the Returning Officers failed to indicate the number of Form 34As handed over to them as required under the law and regulations. As such, it was impossible to authenticate and verify the results given as the integrity of the forms had been put into question and the forms were unknown to the law.

Alleged Fraud on the part of the 1st Respondent:

q) In numerous instances, the 1st Respondent selectively manipulated, engineered and deliberately distorted the votes cast and counted in favour of the Petitioners and inflated those in favour of the 3rd Respondent, thereby affecting the final results tallied.

r) That the Presidential Election was marred and significantly compromised by intimidation and improper influence or corruption contrary to Articles

81(e)(ii) of the Constitution as read together with the Elections Act and Regulations 3 and 6 of the Electoral Code of Conduct.

s) That the 3rd respondent, with impunity, contravened the Rule of Law and the principles of conduct of a free and fair election through the use of intimidation, coercion of public officers and improper influence of voters

Vote counting

t) It was alleged that the votes cast in a significant number of polling stations were not counted, tabulated and accurately collated as required under Article 86(b) and 86(c) of the Constitution as read together with the Elections Act, 2011.

The transmission process:

u) The respondent‘s process of relaying and transmission of results from polling stations to the Constituency Tallying Centres and National Tallying Centre (NTC) was not simple, accurate, verifiable, secure, accountable, transparent, open and prompt. This substantially compromised and affected the requirement of free and fair elections under Article 81(e) (iv) and (v) of the Constitution

v)The IEBC deliberately and/or negligently compromised the security of the integrated electoral management system (KIEMS) and thereby exposed it to unlawful interference by third parties.

(ii) The evidence

[43] The Petitioners relied on evidence borne in twelve depositions all sworn on the 18th August 2017 by: (1) Raila A. Odinga, (2) Stephen Kalonzo Musyoka, (3) Dr. Nyangasi Oduwo, (4) George Kegoro, (5) Benson Wasonga, (6) Godfrey Osotsi, (7) Ibrahim Mohamud, (8) Mohamed Noor Barre, (9) Moses Wamuru, (10) Olga Karani, (11) Aprielle Oichoe and (12) Koitamet Ole Kina and a certificate by Duncan Nunda certifying the authenticity of video and transcriptions attached to Dr. Nyangasi Oduwo‘s Affidavit. These depositions collectively support the case of the Petitioner and were filed on time, in line with the dictates of the Constitution and the Supreme Court (Presidential Election) Rules, 2017. This Evidence, together with a complete record of the responses is contained in the dissenting opinion of the Hon. Justice J.B Ojwang, SCJ.

(iii) Analysis

[44] The pertinent issues for consideration in this regard, in light of the pleadings, the evidence and submissions ought to evaluate the provisions of Articles 81 and 86 of the Constitution in the broad scheme of electoral prerequisites mandated by the Constitution and in light of Article 38 of the Constitution. Article 81 outlines the General Principles of the electoral system. Kenya‘s electoral system is instituted on the basis of multi-party democracy founded on the National Values and Principles outlined under Article 10 of the Constitution. These values include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, equality, social justice, inclusiveness, human rights, non-discrimination and protection of the marginalized, good governance, integrity, accountability, transparency and sustainable development. Most importantly, the Constitution provides a formula for the election of the President (more than half of all the votes cast and at least twenty- five percent of the votes cast in each of more than half of the Counties) [Art. 138(4)].

For the other five elective positions: Governor, Senator, Member of the National Assembly, Woman Representative to the National Assembly, and Member of the County Assembly, the applicable system is first-past-the post i.e. the person with the most number of votes in the election.

[45] The approach that a Court, keen to develop all the parameter of social order ordained by the Constitution is the one taken by this Court In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Re Gender), Supreme Court Application No. 2 of 2012, at paragraphs. 26 and 54:

[26] The forthcoming general elections are not only the most important since independence, but are complex and novel in many ways. The elections come in the context of the first progressive, public-welfare-oriented, historic Constitution which embodies the people‘s hopes and aspirations. Not only are these elections one of the vital processes instituted under the Constitution, but they constitute the first act of establishing a whole set of permanent governance organs. Clearly, any ambivalence or uncertainty in the path of such crucial elections must, as a matter of public interest, be resolved in time:

[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political

environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.

[46] The electoral system and process is therefore discernible from a holistic reading of the Constitution, particularly, Chapters Seven, [Representation of the People], Eight [The Legislature] and Nine [The Executive]. The General Principles under Article 81, which in my view are qualitative, are infused in the entire fabric of these Chapters and their resulting Legislation are concretized by other provisions of the Constitution as follows.

(a) Freedom of citizens to exercise their political rights is provided under Article 38 of the Constitution,

(b) Not more than two-thirds of the members of elective public bodies shall be of the same gender-Article 10, 27(8), 38, 56 (a), 82, 90, 91, 100.

(c) Fair representation of persons with disabilities- Article 54, 56, 82

(d) Universal Suffrage based on the aspiration for fair representation and equality of the vote-Article 10 and 38

(e) Free and fair elections, which are

i. By secret ballot-Article 38

ii. Conducted by an independent body-Article 10 and 88

iii. Free from violence, intimidation, improper influence or corruption-Article 10,

iv. Transparent-Article 10

v. Administered in an impartial, neutral, efficient, accurate and accountable manner-Article 10, 82,83, 88

[47] This collectivity and interlocking nature of constitutional provisions in the scheme of rights, values, principles and administrative directives are then infused into the Elections Act and Regulations there-under and in determining claims of commission or omission in electoral disputes, a Court must consider:

(a) The nature of the commission or omission, in general; (b) The source of such omission or commission;

(c) Foreseeability and mitigation;i.e. could the commission or omission be

foretold? Were there steps to avert it?;

(d) The effect of the commission or omission on a right, a duty or the consequence of a duty thereof (such as effect upon the result of an election);

(e) The effect of the commission or omission on the individual and the collective;

(f) Possible remedies and directions.

[48] The rationale of these considerations may be drawn from the Mike Wanjohi case at paragraph 110:

[110] By the design of the general principles of the electoral system, and of voting, in Articles 81 and 86 the Constitution, it is envisaged that no electoral malpractice or impropriety will occur that impairs the conduct of elections. This is the basis for the public expectation that elections are valid, until the contrary is shown, through a recognized legal mechanism founded in law or the Constitution. Any contests as to the credibility, fairness or integrity of elections, belongs to no other forum than the Courts. The charge of commission of administrative error, fraud, deliberate misconduct, or some element of corrupt practice in elections, are questions that go to the root of the validity of elections and which, if apparent subsequent to the declaration of results, are expressly excluded from the scope of the dispute-resolution powers of the IEBC under Article 88(4)(e).” [Emphasis added]

[49] Article 86 on the other hand bears a strict quantitative language regulating voting at an election. This Article requires the voting method employed to be simple, accurate, verifiable, secure, accountable and transparent. The Petitioners‘ claim is that the results from the polling stations, the Constituency Tallying Centres could not be verified by their agents at the National Tallying Centre. The process of verification is not a two-step process. Verification in a Presidential election is a continuous process traceable from the date of registration of voters to the determination of a Presidential election petition in an election court. In other words, the plurality of persons engaged in the conduct of an election, including the ultimate determination of that election‘s validity, are all agents of verification in ascertaining the credibility of an election. To examine the integrity of the election, the election Court is obliged to consider all the relevant steps of the verification process. We shall examine the role of each one.

The Agents of Verification

(i) The IEBC

[50] The Commission is established under Article 88 of the Constitution and mandated to conduct and supervise elections to any elective office established by the Constitution, including: the continuous registration of voters, the regular revision of the voter‘s roll, and facilitation of the observation, monitoring and evaluation of the elections. Section 4 of The Independent Electoral and Boundaries Commission Act, No. 9 of 2011 outlines the powers and functions of the Commission in the language of Article 88, with the addition of deployment of appropriate technology and approaches in the performance of its functions [Sec. 4(m)]. The Commission is bound by the principles of the electoral system as outlined under Article 81 (Sec. 25). The Commission is also mandated to subject the register of voters to an audit at least six months before a general election (Sec 8A of the Elections Act). It is also mandated to test, verify and deploy technology at least 60 days before a general election. [(Sec. 44(4)(b)] (ii) The Public

[51] Section 6 of the Elections Act mandates the Commission to avail the register of voters to be inspected by the public at all times for purposes of rectifying the particulars therein. Verification of one‘s registration details, including biometric data, is therefore a critical part of verification essential to the conduct of an election and enjoyment of the right to vote. The Commission is also mandated to open the Register for inspection by the public, ninety days from the date of the notice of a general election. This assures the public of the correctness of the registration details entered into the register and guarantees certain key components of the right to vote under Article 38. This process was undertaken in the months of May and June, 2017.

(iii) Candidates or Agents

[52] Section 30 of the Election‘s Act empowers a political party, or a nominated agent, and an independent candidate to nominate one agent per polling station. Regulations 69, 70, 73,74,76, 77,79, 80, 83, 85 demonstrate that candidates and/or their agents are an integral part of the electoral process.

(iv) Political Parties

[53] They are permitted under the regulations to observe the process of registration of voters under the registration of voters regulations

(v) Constituency Returning Officers

[54] Section 39 of the Elections Act mandates the Commission to appoint Constituency Returning Officers to be responsible for collating and announcing the results from the polling stations in the constituency for the election of the President and submitting the collated results for the election to the national tallying center.

(vi) Presiding Officers

[55] These officers are appointed subject to Regulation 5 (1A) of the Elections (General) Regulations, 2012. They are in charge of the entire process at the polling stations to ensure voting is done in accordance with the law and to ensure that counting of the votes at closure of polling, is done properly.

(vii) Representatives of electronic and print media accredited by the Commission

[56] This accreditation is specifically provided for under regulation 95 to allow media access and cover to the electoral process. All accredited observers and media are permitted into the Polling stations on the basis of Regulation 62 (1)(g) of the Elections (General Regulations) 2012. They are allowed to attend the counting of votes pursuant to Regulation 74(4)(f) and the tallying venue (Reg. 83) and Reg. (85)

(viii) Observers: Local and international representatives accredited by the Commission.

These persons or organizations are accredited to observe the election under Section 42 of the Elections Act and more importantly are required to submit their official reports to the Commission under regulation 94 (6). The reports so filed therefore have a formal and official status.

[57] All the international observers who observed the General elections termed it as free and fair. There are fundamental questions to be considered: What was the import of their reports regarding the fairness of the election? What is a free and fair election? What did the election observers consider? International election Observers are bound by Declaration of Principles for International Election Observation. Declaration 4 defines International election observation as:

The systematic, comprehensive and accurate gathering of information concerning the laws, processes and institutions related to the conduct of elections and other factors concerning the overall electoral environment; the impartial and professional analysis of such information; and the drawing of conclusions about the character of electoral processes based on the highest standards for accuracy of information and impartiality of analysis. International election observation should, when possible, offer recommendations for improving the integrity and effectiveness of electoral and related processes, while not interfering in and thus hindering such processes. International election observation missions are: organized efforts of intergovernmental and international nongovernmental organizations and associations to conduct international election observation.

[58] Despite not having a universally acceptable definition of a free and fair election, there are certain common attributes to that description. They were aptly expressed by the Constitutional Court of South Africa in the case of Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC).

[34] There is no internationally accepted definition of the term"free and fair elections. Whether any election can be so characterised must always be assessed in context. Ultimately it involves a value judgement. The following elements can be distilled as being of fundamental importance to the conduct of free and fair elections. First, every person who is entitled to vote should, if possible, be registered to do so. Second, no one who is not entitled to vote should be permitted to do so. Third, insofar as elections have a territorial component, as is the case with municipal elections where candidates are in the first instance elected to represent particular wards, the registration of voters must be undertaken in such a way as to ensure that only voters in that particular area (ward) are registered and permitted to vote. Fourth, the Constitution protects not only the act of voting and the outcome of elections, but also the right to participate in elections as a candidate and to seek public office.

In New National Party of South Africa vs. Government of the Republic of South Africa and Others [1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (New National Party) the Court held, at para 12.

[25] There is even a shift among international observers towards abandoning the "free and fair” standard and to ask instead whether the election is a legitimate expression of the will of the people or properly reflects the wishes of the people. In response to a question from the Swedish Ministry of Foreign Affairs regarding this shift in the public discourse over elections, the ACE Electoral Knowledge Network said:

[A] shift has indeed taken place in the discourse of terms used to characterize the conduct of elections, and that consequently there are fewer references to elections as "free and fair”. This shift was seen as a trend which began in the 1990s, when elections that were described as "free and fair” at the same time could be seen by analysts to lack integrity, and it was also predicted to become a more widespread trend in the future. Moreover, one [Practitioners‘ Network] member expected that the trend would go further as countries engage with new elections related technologies.

Behind the shift in discourse lies a rising awareness among analysts that election observation should be less of a ?thumbs up/thumbs down‘ judgement on an election-day event, and increasingly an effort to monitor and evaluate the process of an election, against international obligations voluntarily undertaken by countries.”

(ix) The Election Court

[59] Let me reiterate that Kenya‘s electoral system is instituted on the basis of multi-party democracy founded on the National Values and Principles outlined under Article 10 of the Constitution. The General principles of the Electoral System therefore and the interlocking constitutional provisions, including Article 81 are engaged in an exercise of sovereign guardianship. Therefore, the Supreme Court by dint of its Jurisdiction is the final verifying Agency, if called upon to do so, in a Presidential election petition. This duty is enabled by the Supreme Court‘s inherent powers, as an election court, to Order: (a) scrutiny (b) recount (c) re-tally (d) discovery of documents (e) inspection of ballots (f) Orders that facilitate the Court to establish the people‘s sovereign will.

[60] The Supreme Court as an Election court is empowered by Article 138 (3)(c),

140 and 163 (3)(a) of the Constitution and also under Sections 2, 80, 82 and 85 of the Elections Act, 2011. This is critical to meet the constitutional imperatives set upon the Court and the Electoral body by the Constitution. An election Court must be sure that there is a solid, not imagined; a proved, not alleged; case for invalidating an election. The South African Constitutional Court, in Kham and Others v Electoral Commission and Another (CCT64/15) [2015] ZACC 37; 2016 (2) BCLR 157 (CC); 2016 (2) SA 338 (CC) remarked, and I am fully persuaded by their opinion:

[91] It is undesirable to articulate a general test expressed in language different from that of the Constitution, as that may be misleading. The Court must give full weight to the constitutional commitment to free and fair elections and the safeguard it provides of the right and ability of all who so wish to offer themselves for election to public office. It is essential to hold the IEC to the high standards that its constitutional duties impose upon it. It is insufficient for the Court to say that it has a doubt, or a feeling of disquiet, or is uncomfortable about the freedom and fairness of the election. It must be satisfied on all the evidence placed before it that there are real – not speculative or imaginary – grounds for concluding that they were not free and fair.

What are the stages in the Process of Verification?

[61] Regulation 68 provides that ballot papers shall:

(a) Contain the name and symbol of the candidate validly elected

(b) Contain a photograph of the candidate where applicable

(c) Be capable of being folded up

(d) Have a serial number, or combination of letter and number, printed on the front and;

(e) Have attached a counterfoil with the same number or combination printed thereon.

These features allow the candidates or agents present at the polling station to inspect the ballot papers provided for use at the polling station.

[62] The voting procedure outlined under Regulation 69 contains core components of verification which are complemented by the requirements of inspection and verification of the voter‘s register.

Regulation 69. Voting Procedure

(1) Before issuing a ballot paper to a voter, an election official shall—

(a) require the voter to produce an identification document which shall be the same document used at the time of registration as a voter;

(b) ascertain that the voter has not voted in that election;

(c) call out the number and name of the voter as stated in the polling station register;

(d) require the voter to place his or her fingers on the fingerprint scanner and cross out the name of the voter from the printed copy register once the image has been retrieved;

(e) in case the electronic voter identification device fails to identify a voter the presiding officer shall—

(i) invite the agents and candidates in the station to witness that the voter cannot be identified using the device;

(ii) complete verification Form 32A in the presence of agents and candidates;

(iii) identify the voter using the printed Register of voters; and

(iv) once identified proceed to issue the voter with the ballot paper to vote;

(f) deleted by L.N. 72/2017, r. 31(c); (g) deleted by L.N. 72/2017, r. 31(c).

(2) A voter shall, in a multiple election, be issued with the ballot papers for all elections therein at the same time and shall after receiving the ballot papers—

(a) cast his or her votes in accordance with regulation 70 without undue delay;

(b) submit to having one finger as prescribed by the Commission immersed, dipped or marked in ink of a distinctive colour which, so far as is possible, is sufficiently indelible to leave a mark for the period of the election;

(c) where a voter has no finger, make a mark on the next most suitable part of the body; and

(d) upon collecting his or her identification documents, immediately leave the polling station.

(3) A person who knowingly fails to place a ballot paper issued to him or her (not being a spoilt ballot paper) into a ballot box before leaving the place where the box is situated commits an offence under the Act.

(4) An election officer who deliberately refuses to stamp any ballot paper commits an offence.

(5) The presiding officer may, where a voter so requests, explain the voting procedure to such voter. [Emphasis added]

[63] At the close of polling, a presiding office is supposed to indicate in a polling diary, a written statement of-

(a) the number of ballot papers issued to him or her under regulation 61;

(b) the number of ballot papers, other than spoilt ballot papers, issued to voters;

(c) the number of spoilt ballot papers; and

(d) the number of ballot papers remaining unused.

Then in the presence of the candidate or agents, seal, in separate tamper proof envelopes-

(a) the spoilt ballot papers, if any;

(b) the marked copy register, where necessary;

(c) the counterfoils of the used ballot papers; and

(d) the statement specified in sub-regulations

[64] These items are then sealed by the presiding officer with the seal of the Commission and that of the candidate or agent (if they wish to do so) and then delivered together with the ballot boxes, to the returning officer. These items allow the examination of election materials at any stage of the election, permissible by law, for purposes of verification.

[65] The Supreme Court of India has previously laid a basis upon which an election Court may lift the veil of secrecy in a ballot where a case has been made out by the Petitioner to do so. In Jitendra Bahadur Singh vs. Krishna Behari and others [1969] INSC 176; AIR 1970 SC 276 an elector challenged the validity of the election of the appellant to Lok Sabha. By the order dated May 21, 1968, the High Court permitted the Election Petitioner to inspect the packets of Ballot Papers containing the accepted as well as the rejected votes of the candidates. The said order passed by the High Court was impugned before the Supreme Court. The Supreme Court held, at paragraphs 7 and 8:

7. The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases. In particular we may refer to the decisions of this Court in Ram Sewak Yadav vs. Hussain Kamil Kidwai, 1964-6 SCR 238 [1964] INSC 6; (AIR 1964 SC 1249) and Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773. These and other decisions of this Court and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They are: (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.

8. The trial court was of the opinion that if an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts. In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations made in the petition. …… This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately, the trial court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made. [Emphasis added]

[66] The preservation of election material for a period of three years is also an enabler of the verification process. In cases where a Court is in grave doubt as to the outcome of the election, as the Majority in this case decided they were, the ballots exist to enable a final inspection/verification process by an election Court. The people speak through the ballot and the ballots, once marked and cast, in turn, speak for themselves anonymous of the voter, preserving the principle of secrecy under Article 38 (3)(b) of the Constitution. India‘s long constitutional tradition has given the Supreme Court an opportunity to reign in on the importance of ballots in verifying the result of the election when in doubt. In Narendra Madivalapa Kheni v. Manikarao Patil and Others, Supreme Court Civil Appeal No. 1114 of 1976 :

The ballots are alive and available and speak best. Why, then, hazard a verdict on flimsy foundation of oral evidence rendered by interested parties? The vanquished candidate's ipse dixit or the victor's vague expectations of voters' loyalty – the grounds relied on – are shifting sands to build a firm finding upon, knowing how notorious is the cute art of double-crossing and defection in electoral politics and how undependable the testimonial lips of partisans can be unless authenticated by surer corroboration. Chancy credulity must be tempered by critical appraisal, especially when the return by the electoral process is to be overturned by unsafe forensic guesses. And where the ground for recount has been fairly laid by testimony, and the ballot papers, which bear clinching proof on their bosoms, are at hand, they are the best evidence to be looked into. No party can run away from their indelible truth and we wonder why the learned Judge avoided the obvious and resorted to the risky. May be, he thought reopening and recount of ballots may undo the secrecy of the poll. We are sure that the correct course in the circumstances of this case is to send for and scrutinize the 16 ballots for the limited purpose of discovering for whom, how many of the invalid sixteen have been cast. Secrecy of ballot shall be maintained when scrutiny is conducted and only that part which reveals the vote (not the persons who voted) shall be open for inspection. [Emphasis added]

[67] The elaborate process of counting votes outlined under Regulation 76 guarantees several things: (i) that vote counting is systematic, transparent (in the presence of candidates or agents), (ii) verifiable-the presiding officer maintains a record of the count in a tallying sheet in Form 33.

[68] After completing the count, Regulation 79 mandates the presiding officer, the candidates or agents to sign the declaration in respect of the elections. Pursuant to Regulation 79 (2A), the presiding officer shall-

The presiding officer shall—

(a) immediately announce the results of the voting at the polling station before communicating the results to the returning officer;

(b) request each of the candidates or agents present to append his or her signature;

(c) provide each political party, candidate, or their agent with a copy of the declaration of the results; and

(d) affix a copy of the declaration of the results at the public entrance to the polling station or at any place convenient and accessible to the public at the polling station. [Emphasis Added]

This allows candidates or agents to verify the tally of these results at the Constituency Tallying Centre and to raise any objection to any manipulation or change of results. This is in line with the principle in the Joho case that results at the polling station are final and any challenge to these results can only be before a Court of law. Signatures by the Candidates or agents are central to the declaration that where not provided, a record of the reasons for failure to sign shall be provided either by the candidate or agent [Reg. 79(3)], or by the presiding officer [Reg. 79 (4)]. Failure by a candidate or agent to sign the declaration, shall not, by itself, invalidate the results announced [Reg. 79(6)]. The presiding officer is also required to record the absence of any candidate or agent [Reg. 79(5)]. The absence of a candidate or agent at the signing of declaration shall also not of itself, invalidate the results announced [Reg. 79 (7)].

[69] An added layer of verification is provided under Regulation 80 where a candidate or agent after counting is completed may require the presiding officer to have the votes rechecked and recounted. The presiding officer may also, on their own initiative have the votes recounted. This regulation is couched as a limited right, to be enjoyed by the candidates or agents at most, twice.

[70] The importance of these processes bear credence to a careful consideration of the history of electoral practice in Kenya as was highlighted by Mutunga CJ & P (as he then was) in his concurring opinion in the case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others, S.C. Petition No. 2B of 2014; [2014] eKLR [Munya 2] at paragraph 235, 247, 248, 249 and 250:

[235] The emphasis on free and fair elections, through an electoral system that is simple, accurate, verifiable, secure, accountable and transparent, in Articles 81(e) and 86 of the Constitution, has a rich Kenyan historical, economic, social, political, and cultural context. Article 86(b), for example, provides that the votes cast are to be counted, tabulated, and results announced promptly by the presiding officer at each polling station. This is because our electoral history is rife with malpractices that occur during the transportation of ballot boxes from polling stations to constituency counting-centres. It is therefore no coincidence that many of the petitions filed in the High Court, before the promulgation of the 2010 Constitution, gave lurid details of the stuffing of ballot boxes, or discarding of them en route to the constituency counting-centre. At the constituency counting- centre itself, votes disappeared when lights, either by design, negligence, or power-outage, went off. Our elections were therefore not free, fair and peaceful (see Charles Hornsby, Kenya: A History Since Independence (I.B. Tauris, 2013)). [Emphasis added]

[247] Constitutional provisions are by themselves not enough. The duty-bearers, be they individual voters, political parties, agents, the media, IEBC, the Registrar of Political Parties, the Constitutional Commissions, the arms of the State, must all invest in emancipating and protecting the vote.

Once the Constitution gives citizens the right to vote, the freedom to choose, and conditions are created for the realization of that right, it is not the business of the Court to aid the indolent. If party agents are required to be present, sign statutory forms, and undertake any other legitimate duty that is imposed upon them as part of the political process in an election, then they are under obligation to do it. To fail to do so is not only to fail one‘s party, but also to fail our democracy. The Courts must frown upon any such inaction, reluctance, or delay.

[248] The election is first and foremost the citizen‘s election. Every Kenyan must protect his or her right to votethe right to participate in the political affairs of the nation. It is upon exercising all the rights

which the Constitution bestows upon the citizen, that she or he can claim the sovereign power that she or he donates to her or his representative.

[249] It is, therefore, time for us to develop our election-petition litigation: we must depart from the current practice in which a petitioner pleads 30 grounds for challenging an election, but only proffers cogent evidence for 3. A candidate, or her agent, cannot abscond duty from a polling station, and then ask the Court to overturn the election because of her failure to sign a statutory form. Every party in an election needs to pull their own weight, to ensure that the ideals in Article 86 are achieved: that we shall once and for all have simple, accurate, verifiable, secure, accountable, transparent elections. The election belongs to everybody, and it is, therefore, in everybody‘s collective interest, and in everybody‘s collective and solemn duty, to safeguard it.

[250] Given the strict electoral timelines in our Constitution, it is clear elections, will result in cogent grounds upon which election results are challenged. We will start seeing candidates conceding defeat in elections because they have been free and fair. We will see electoral litigation that may be ended through consent of the parties because they agree that the grounds upon which the election results were based, are solid and not frivolous. It is not hard to imagine that one day it will be possible, because of the vigilance of the citizens and all electoral stakeholders, to have elections that will be free and fair, and Courts will no longer be involved in the settlement of electoral disputes. [Emphasis supplied]

[71] The next stage of verification is the process of tallying outlined under Regulation 83. The Returning Officer at the Constituency is mandated to collate and publicly announce the results from each polling station in the presence of candidates, agents and observers if present.

[72] Regulation 81 is important because it preserves the election material for reference by an election Court, where applicable and which in my opinion, is the final verification avenue.

Regulation 81. Sealing of ballot papers by presiding officer

(1) Upon completion of a count, including a recount, the presiding officer shall seal in each respective ballot box—

(a) valid votes;

(b) rejected ballots sealed in a tamperproof envelope;

(c) unused ballot papers sealed in a tamperproof envelope; (d) counterfoils of used ballot papers sealed in a tamperproof envelope;

(e) copy of election results declaration forms; and

(f) stray ballot papers in a tamperproof envelope.

(2) The presiding officer shall deliver, to the returning officer—

(a) the sealed ballot boxes;

(b) the statements made under regulations 78 and 79;

(c) copy of the Register of Voters; and

(d) Polling station diary. [Emphasis supplied]

[73] Verification therefore is an exercise that comprises the entire electoral process commencing from registration of voters, inspection of the voters‘ Register, verification of registration, verification of an elector‘s details where the electronic identification fails, audit of the Register, identification of voters, presence of candidates, agents, accredited observers and media, the process of counting and the limited right of recount, signing the declaration forms and the entitlement of candidates or agents to a copy, displaying the declaration of results for access by the public, sealing of ballot boxes and handing-over of election materials, the tallying process and the right to challenge the declaration of results in an election Court. All these processes activate several inbuilt principles of the electoral system under Article 81 of the Constitution. They also provide an opportunity for electoral quality assurance, aptly described in the cited excerpt from the concurring opinion of Mutunga CJ & P (as he then was) in the Kidero case. The hierarchy is that any shortfalls in the preceding process can be detected in a consequent process forming a basis for a pre-election or post-election dispute.

[74] It is however to be observed that a proper test for verification of an electoral process must always prioritize the primary instrument for Declaration of the result or outcome of the voters choice. The voter is identified at the Polling station; he votes at the polling station, ballots are counted at the polling station. The agents, candidates, observers are allowed access into the polling stations to verify the inner sanctum of the voice of the electorate - the altar of the voter‘s choice. What happens there is what determines the parameters of verification. Any doubt as to the credibility or integrity of the election must be tested against the various layers of verification, including the election material in the custody of the Returning Officer. A single want of form in this elaborate scheme of verification cannot be a basis for nullifying a Presidential Election.

F. TRANSMISSION

[75] At the heart of transmission was the application of the directions by the Court of Appeal in the Maina Kiai case. Before delving into the primary (Manual) and the complementary (electronic) modes of result transmission, I will revisit this decision and its bearing on the conduct of future elections.

The case

(i) The Petitioners‘ Submissions

[76] At paragraph 67 of the Petitioners‘ written submissions, it was urged that the determination of the Court of Appeal in the Maina Kiai case was that a polling station was the final point of declaration of Presidential Election results. The Petitioners contended that the 1st Respondent however, went contrary to this determination by: declaring the final results of the Presidential Election at the County; failing to electronically collate, tally and transmit the results accurately; allowing transmission and display of unverified results not provided for in law; posting contradictory and ever changing results in Forms 34A and 34B in the portal; and declaring final results of the Presidential elections on 11th August, 2017 before receiving results from all the polling stations.

[77] According to the Petitioners, the only lawful, credible and secure way to conduct, tally and transmit the 2017 Presidential Election results was as provided under Section 39(1C) of the Elections Act, 2011 i.e. electronic transmission in the prescribed Forms and in a prompt and efficient manner. It was the Petitioners‘ submission that the Court of Appeal in the Maina Kiai case affirmed the use of information technology to guarantee the accuracy and integrity of election results and at pages 70-71 of their judgment, determined thus:

"We are satisfied that the electronic transmission of the already tabulated results from the polling station is a critical way of safeguarding the accuracy of the outcome of the elections The electronic transmission of results was intended to cure the mischief that all returning officers from each of the 290 constituencies and 47 county returning officers troop to Nairobi by whatever means of transport, carrying in hard copy the presidential results which they had announced at their respective constituency tallying centres. The other fear was that some returning officer would in the process tamper with the announced result.”

(ii) The Responses

(a) The 1st and 2nd Respondents

[78] Counsel for the 1st and 2nd Respondents made concurring arguments on this issue. The written submissions of the 1st Respondent, summarized the litigation logic of the Maina Kiai case as an appeal against the decision by the High Court in Constitutional Petition No. 207 of 2016 seeking the following Orders:

(a) A declaratory Order that Sections 39 (2) & (3) of the Elections Act, 2011, are contrary to the provisions of Articles 86 and 138(2) of the Constitution and therefore, null and void;

(b) A declaratory Order that Regulations 83(2), 84(1) and 87(2) of the Elections (General) Regulations, 2012 are unconstitutional and contrary to Articles 86(b)(c) and 138(2) of the Constitution and therefore null and void;

(c) A declaration that respective constituency returning officers are the persons responsible for the conduct and declaration of constituency presidential election results;

(d) A declaration that constituency presidential elections results once declared and announced by respective constituency returning officers are final results for the purposes of that election;

(e) A declaration that constituency returning officers possess a fundamental and an inalienable mandate to announce and declare the final results of a presidential election at constituency level and that such declaration is final and is not subject to alteration, confirmation or adulteration by any person or authority, other than an election Court, pursuant to Articles 86 and 138(2) of the Constitution of Kenya.

[79] The issue for determination was whether results announced by the Constituency Returning Officer in respect the Presidential election were provisional and subject to confirmation by the 1st Respondent. The Court of Appeal upheld the determination of the High Court that to the extent that Section 39(2) and (3) of the Elections Act, 2011 and Regulation 87(2)(c) provide that the results declared by the constituency returning officer are provisional, and to the extent that Regulation 83(2) provides that the results of the returning officer are subject to confirmation by the 1st Respondent, these provisions are inconsistent with the Constitution and therefore null and void.

[80] In his oral submissions, counsel for the 1st Respondent Mr. Nyamodi, submitted that the pathway to the final results was demarcated by the Constitution, the Elections Act, 2011 and Regulations thereunder and by judicial directions rendered by Superior Courts in Kenya. To this extent, two critical decisions guided the 1st Respondent‘s electoral returning role; the Maina Kiai case and National Super Alliance (Nasa) Kenya vs. Independent Electoral & Boundaries Commission & others [2017] eKLR Civil Appeal No. 258 of 2017 (The NASA case).

[81] Counsel‘s submission was that in reliance to the Constitution, the law and judicial guidance, the 1st Respondent used Forms 34B as opposed to Forms 34A as argued by the Petitioners, to declare the final results of the presidential election. He emphasized that at the time the final results of the presidential election were declared, all Forms 34B had been collated. It was counsel‘s submission that, by declaring Sections 39 (2) and (3) of the Elections Act, 2011 inconsistent with the Constitution, the 1st Respondent‘s ability to change, amend or alter the results transmitted from the Constituency, was entirely curtailed. According to counsel, the decision of the Court of Appeal in the Maina Kiai case extinguished the concept of provisional results. Consequently, the numbers manually entered into the KIEMS kit at the close of polling and transmitted simultaneous to the Constituency Returning Centre and the National Tallying Centre, bore no status in law. They were mere statistics, although the Presiding officer had to show the Agents present the entries made for confirmation before transmission.

[82] To buttress his argument, Mr. Nyamodi traced the process of a vote as follows (with reference to paragraph 20 of the Response to the Petition):

a. Upon the close of polling, the votes cast were counted and the results recorded in Forms 34A.

b. An image of the Form 34A was captured by the Kenya Integrated Election Management System (KIEMS) kit and the statistics in the Form 34A were then entered into the KIEMS kits at all polling stations.

c. The presiding officer would then simultaneously relay the statistics and the image of the Form 34A to the relevant constituency returning officer and to the National Tallying Centre (NTC).

d. The completion of the transmission of the image of Forms 34A was dependent on the availability of 3G or 4G network coverage. In respect of areas

lacking 3G or 4G network coverage, the Respondents established alternative mechanisms to ensure completion of transmission of the image of the Form 34A. (It was however clarified, during oral submissions, that in such instances, the statistics could be sent without the accompanying image.)

e. In accordance with Section 39 (1C) of the Elections Act, the 1st Respondent published the images of Forms 34A and 34B in respect of the presidential election on its public portal.

f. In all polling stations, the presiding officers transmitted the statistics of the results through KIEMS accompanied by the electronic image of Forms 34A.

g. At the time of the declaration of the results of the presidential election, the 1st and 2nd Respondents had in their possession all the forms required in law for purposes of a declaration of the results of the presidential election.

h. The procedure adopted in the transmission and tallying of results of the presidential election was in conformity with the decision of the Court of Appeal in the Maina Kiai case. [Emphasis added]

[83] On the basis of this process, Counsel submitted that the Petitioners‘ allegation that the 1st Respondent deliberately pre-determined and set itself on a path of subverting the law by being a law unto itself, was unfounded. However, although Section 44A of the Elections Act, 2011 empowers the 1st Respondent to set up complementary mechanism for identification of voters and transmission of election results to ensure that it complies with Article 38 of the Constitution, the Court of Appeal directed that the tabulated results electronically transmitted from the polling stations in the prescribed forms was a critical way of safeguarding the accuracy of the outcome of the elections and could not be varied. The rationale for this determination was that there was no need for 290 Constituency returning officers and 47 County returning officers to troop to the NTC with Forms 34B carrying the hard copies of the presidential results which they had announced in their respective tallying centres. It was counsel‘s submission that despite this conclusion, the Court of Appeal did not declare Section 44A of the Elections Act, 2011 inconsistent with the Constitution.

[84] In addition, counsel submitted that the determination by the Court of Appeal on the finality of presidential election results declared by the constituency returning officer also changed the structure of Form 34C. Regulation 87(3)(b) provides that:

"upon receipt of Form 34A from the constituency returning officers under sub-regulation (1), the Chairperson of the Commission shall tally and complete Form 34C.” However, the 1st Respondent had to modify Form 34C to reflect the entry of Forms 34B, which was the Form declared by the Court of Appeal to be the source document to determine the winner of a Presidential election, in place of Forms 34A.

[85] Mr. Nyamodi concluded by reaffirming that the way the 1st Respondent structured its transmission system, was largely based on the Court of Appeal‘s decision in the Maina Kiai case which did not interfere with or negate the will of the people resident in Form 34A.

(b) The 3rd Respondent

[86] Mr. Ngatia, counsel for the 3rd Respondent submitted that the Forms 34B produced by the constituency returning officers upon tallying the results from the polling stations as contained in Forms 34A were binding upon the 2nd Respondent at the National Tallying Centre. As such, the duty of the 2nd Respondent at the National Tallying Centre was to tally the results contained in Forms 34B to produce Form 34C which contained the final results of the Presidential elections; a duty that was properly executed.

[87] Counsel further rebutted the Petitioners‘ argument that the declaration of results was made at the County. He urged that the declaration of results was done by presiding officers at every polling station, and by the returning officers at the Constituency Tallying Centre and that the role of the 2nd Respondent was simply to tally the results obtained from the returning officers in Forms 34B accompanied by Forms 34A before declaring the final results of the election. Due to the County threshold required by Article 138(4)(b) of the Constitution, it was logical for the 2nd Respondent do announce the results County by County.

[88] The Petitioners‘ contention was that the 1st and 2nd Respondents failed to adhere to the guidelines set by the Court of Appeal in the Maina Kiai case during the conduct of the 2017 Presidential elections. The Respondents on the other hand demonstrated that the presidential election was conducted in accordance with those guidelines. However, counsel for the 1st Respondent urged this Court to consider the place of the Maina Kiai decision rendered by the Court of Appeal, in the conduct of presidential elections in Kenya and to settle the law for future elections. According to the 1st Respondent, the role of the 2nd Respondent had been reduced by the Court of Appeal to tallying the results in Forms 34B to generate Form 34C.

[89] Counsel for the 1st Respondent was of the view that this Court does not lose its status to interpret and apply the Constitution while sitting as a Court of original jurisdiction to hear disputes relating to a presidential election. Indeed, I agree with counsel for the 1st Respondent that while exercising original jurisdiction as conferred on this Court by Article 163(3)(a) of the Constitution, this Court will resolve both issues of law and fact arising in the course of litigation, and settle any issues of constitutional controversy.

Analysis

[90] While it may seem peculiar to delve into analysis of the jurisprudence laid by the Court of Appeal in the Maina Kiai case, in a case, other than one on appeal, it is my considered opinion that we can do so through a two-prong approach. Firstly, this is a court of original jurisdiction in presidential petitions under Article 163, and therefore competent to adjudicate upon matters of both law and fact in such a matter, including the interpretation and application of the Constitution. Secondly, this Court‘s foreboding on circumstances such as present before us, manifests in the decisions of this Court in the cases of Anami Silverse Lisamula vs. The Independent Electoral and Boundaries Commission and Two Others, Sup. Ct. Petition No. 9 of 2014, (the Lisamula case) Rawal, DCJ, (as she then was), concurring [at paragraph 135]:

"Therefore, the peculiar nature of the Constitution of Kenya, 2010 informs the peculiarity of the Judiciary in the new dispensation, and more so, that of the Supreme Court. The Constitution progressively broadens the arena of litigation in this country, and the Supreme Court must remain steadfast in its duty to address itself to issues that may properly come [up] before it. The jurisprudence to be developed by the Supreme Court of Kenya may bear differences from that of other jurisdictions in the world, because of the special terms of this country‘s charter, which expresses the people‘s will, and embodies their mutual agreement. While most jurisdictions would command a Court to relieve itself of duty by making a prompt finding on jurisdiction, Kenya‘s Constitution directs the Supreme Court to take no rest, until all unsettled issues of its interpretation and application are resolved” [Emphasis supplied].

In the Aramat case, [at paragraphs 101 and 111]:

[101] We would make it clear in the instant case that, it is a responsibility vested in the Supreme Court to interpret the Constitution with finality: and this remit entails that this Court determines appropriately those situations in which it ought to resolve questions coming up before it, in particular, where these have a direct bearing on the interpretation and application of the Constitution. Besides, as the Supreme Court carries the overall responsibility [The Constitution of Kenya, 2010, Article 163(7)] for providing guidance on matters of law for the State‘s judicial branch, it follows that its jurisdiction is an enlarged one, enabling it in all situations in which it has been duly moved, to settle the law for the guidance of other Courts.

[111] From the principles thus stated, it is clear to us that this Court ought to maintain constant interest in the scheme and the quality of jurisprudence that it propounds over time, even where it is constrained to decline the jurisdiction to deal with any particular questions.

Whatever option it takes, however, this Court ought always to undertake a methodical analysis of any issues it is seized of, and ought always to draw the whole dispute to a meaningful conclusion, bearing directions and final orders, in the broad interests of both the parties, and of due guidance to the judicial process and to the Courts below. [Emphasis added]

In Re The Matter of the Interim Independent Electoral Commission, Sup. Ct. Civil Application No. 2 of 2011; [2011] eKLR (Re IIEC) this Court has the jurisdiction to interpret any constitutional provisions in the course determining any matter. It held that:

Indeed, interpretation of the Constitution stands to be conducted, for different purposes and at different stages, by a vast array of constitutional organs: so, for instance, the State Law Office in advising Government Ministries, is entitled to interpret the Constitution as may be necessary; and the several independent Commissions under the Constitution are similarly entitled to interpret the Constitution as part of the performance of their respective mandates. The Supreme Court too, may take its position as guided by its own interpretation of the Constitution. [Emphasis added]

[91] At the centre of the instant case is the impact of the decision of the Court of Appeal in the Maina Kiai case to the Constitutional status of Section 39 (in its entirety) and Section 44A of the Elections Act, 2011; the role of the Chairperson of the Independent Electoral and Boundaries Commission pursuant to Article 138(10) (a) of the Constitution; and the overall mode of transmission of presidential election results from the polling station to the National Tallying Centre as elaborated in the Constitution, the Elections Act, 2011 and Regulations thereunder. It is important to note that no intention of an Appeal from this decision was lodged in the Supreme Court Registry within the statutory 14 days. Bearing in mind the Supreme Court‘s constant call to interpret the Constitution, these issues still engage this Court‘s jurisdiction under Article 163(3)(a).

[92] This case therefore presents two apposite issues for determination: (i) whether in conducting the 2017 presidential election, the 1st and 2nd Respondents adhered to the guidelines set by the Court of Appeal in the Maina Kiai case; and (ii) what is the place of this jurisprudence in the conduct of future presidential elections in Kenya?

[93] The starting point is to place the Maina Kiai case in context. This was an appeal against the Judgement of the High Court delivered on 7th April, 2017 in which the High Court made the following declarations:

a. that to the extent that section 39(2) and (3) of the Elections Act provides that the presidential election results declared by the constituency returning officer are provisional (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;

b. that to the extent that regulation 87(2)(c) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officer are provisional (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;

c. that to the extent that regulation 83(2) of the Elections (General) Regulations 2012 provides that presidential election results declared by the constituency returning officers are subject to confirmation by the Commission (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void;

d.that the presidential election results declared by the constituency returning officer are final in respect of the constituency, and can only be questioned by the election court;

e. that to the extent that the 1st respondent interprets section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) to mean that it can confirm, alter, vary and/or verify the presidential election results declared by the constituency returning officer in the particular constituency (it) is contrary to Articles 86 and 138(2) of the Constitution and is therefore null and void.

The Appellant (1st Respondent in this case) sought to have the Judgement of the High Court overturned. In arriving at its determination, the Court of Appeal considered the meaning of Section 39(1C) of the Elections Act, 2011 (as amended) and observed that:

From our own reading of all the provisions under review, the authorities relied on, and bearing in mind the history that we have set out in detail in this judgment, we are convinced that the amendments to the Act were intended to cure the mischief identified by the then former Chairperson of the appellant, and other stakeholders. That mischief was, the spectacle of all the 290 returning officers from each constituency and 47 county returning officers trooping to Nairobi by whatever means of transport, carrying in hard copy the presidential results which they had announced at their respective constituency tallying centres. The other fear was that some returning officer would in the process tamper with the announced results. [Emphasis added]

[94] The Court of Appeal also found that the electoral system reforms which were emphasized in the 2016 and 2017 Amendments to the Elections Act, 2011 was the use of information technology to guarantee the accuracy and integrity of the election results. It noted that Section 44(1) required the 1st Respondent in this matter to:

44. (1) …establish an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.

…

(3) ...ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.

…

(5) …in consultation with relevant agencies, institutions and stakeholders, including political parties, make regulations for the implementation of this section...”

…

44A. 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. [Emphasis added]

On the basis of these Sections, the Court of Appeal held:

We are satisfied that with this elaborate system, the electronic transmission of the already tabulated results from the polling stations, contained in the prescribed forms, is a critical way of safeguarding the accuracy of the outcome of elections, and do not see how the appellant or any of its officers can vary or even purport to verify those results, particularly when it is clear that, by Article 86 (d), section 2 of the Act and regulation 93(1), all election materials, including ballot boxes, ballot papers, counterfoils, information technology equipment for voting, seals and other materials, are to be retained in safe custody by the returning officers for a period of three years after the results of the elections have been declared, unless required in proceedings in court.

The information contained in Form 34, which has since been replaced following the promulgation of the Elections (General) (Amendment) Regulations, 2017, is primary information that is itself arrived at after an elaborate process at two levels of the electoral system to safeguard the integrity of the outcome before it is transmitted to the national tallying centre. Regulations 73 to 90 enumerate the process of counting of votes, declaration and transmission of results.

Once the presiding officer closes the polling station at the end of voting, he is required, in the presence of the candidates or agents to open each ballot box and empty its contents onto the counting table or any other facility provided for the purpose; cause to be counted, the votes received by each candidate by announcing the name of the candidate in whose favour the vote was cast; display to the candidates or agents and observers the ballot paper sufficiently for them to ascertain the vote; and put the ballot paper at the place on the counting table, or other facility provided for this purpose, designated for the candidate in whose favor it was cast. The total number of votes cast in favour of each candidate is then recorded in a tallying sheet in Form 33. [Emphasis supplied]

The Court of Appeal, emphasizing on the centrality of the activities at the polling station on election day held:

We bear in mind that presidential election, where two or more candidates are nominated, are held in each constituency and the foregoing process is undertaken at the constituency, the details of which are recorded at the end of the exercise in Form 34. It is inconceivable that those details, arrived at after such an elaborate process can be viewed as provisional, temporary or interim. The inescapable conclusion is that it is final and can only be disturbed by the election court.

It is clear beyond peradventure that the polling station is the true locus for the free exerc is e of the vo ters ‘ w ill . Th e count ing o f the votes a s elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion. It sounds ill that a contrary argument that is so anathema and an tithe tical to inte g rity an d ac curac y s hould fal l fro m th e appell an t‘s  mouth. [Emphasis supplied]

[95] The Appellate Court expansively interrogated the process of voting as enunciated under Article 86 of the Constitution and was of the view that it was an affront to constitutional values and principles to claim that the 2nd Respondent in this case, could ?alone, at the national tallying centre or wherever, purport to confirm, vary or verify the results arrived at through an open, transparent and participatory process.” The Court was of the view that Article 138(3)(c) reinforces the values under Article 86 by requiring the 1st Respondent to tally, verify the count and declare the result in a presidential election, after counting the votes in the polling stations. The Court interpreted this Article to mean that the 1st Respondent could only declare the result of the presidential vote at the constituency tallying centre after the process of tallying and verification was complete. According to the Appellate Court, the 2nd Respondent has a significant constitutional role under Article 138(10) as the authority with the ultimate mandate of making the declaration that brings finality to the presidential election process. The Court observed that the 2nd Respondent is required to tally all the results exactly as received from the 290 Returning Officers country-wide without adding, subtracting, multiplying or dividing any number contained in the two forms from the constituency tallying centre and verification or confirmation related to establishing that the candidate to be declared President-elect had met the threshold set under Article 138(4).

[96] The Court of Appeal was of the view that the introduction of Section 39 (2) and (3) of the Elections Act, 2011 sowed discord, mischief and confusion in this elaborate process, making its retention in the Elections Act, 2011, unnecessary and in fact, unlawful. It remarked that the Amendment to Section 39 was intended to align it with Articles 81, 82, 86, 101, 136 and 138 of the Constitution to provide for procedure at the general elections and that by dint of Section 39(1) of the Act, required the 1st Respondent (through its Returning Officers) to tally, and verify the count and declare the results at the polling stations immediately after close of polling. It observed that:

Article 138 deals with events at the polling stations where votes are counted, tallied, verified and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to be construed to mean the Chairperson but rather, the returning officers who are mandated, after counting the votes in the polling stations, to tally and verify the count and declare the result. The appellant, as opposed to its chairperson, upon receipt of prescribed forms containing tabulated results for election of President electronically transmitted to it from the near 40,000 polling stations, is required to tally and "verify” the results received at the national tallying centre, without interfering with the figures and details of the outcome of the vote as received from the constituency tallying centre. At the very tail end of this process, in Article 138(10) the chairperson then declares the result of the presidential election, and delivers a written notification of the result to the Chief Justice and to the incumbent President. That is how circumscribed and narrow the role of the chairperson of the appellant is.

[97] The Court also focused on the Amendments to the Elections (General) Regulations 2012 by the 1st Respondent through Gazette Supplement, Legal Notice No. 72 of 21st April, 2017, replacing the Form titled "Declaration of Presidential Election Results at a Polling Station” with two forms (Forms 34A and 34B) titled "Presidential Election Results at The Polling Station” and "Collation of Presidential Election Results at the Constituency Tallying Centre,” consecutively. It thus held:

"It is our firm position that the purpose for which section 39(2) and (3) of the Act and regulations 83(2) and 87(2)(c) were promulgated or made have the effect of infringing constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability.”

…

The lowest voting unit and the first level of declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.

… there is no doubt from the architecture of the laws we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the chairperson of the appellant.

Ultimately we find no fault in the determination of the High Court that to the extent that section 39(2) and (3) of the Act and regulation 87(2)(c) provide that the results declared by the returning officer are provisional, and to the extent that regulation 83(2) provides that the results of the retuning officer are subject to confirmation by the appellant, these provisions are inconsistent with the Constitution and therefore null and void.

Did the 1st and 2nd Respondents adhere to the guidelines set by the Court of Appeal in the Maina Kiai case?

[98] In my view, the 1st and 2nd Respondents satisfactorily demonstrated that the electoral process was conducted in accordance with the directions of the Court of Appeal in the Maina Kiai case. Processes that had been put in place before the determination by the Court of Appeal declaring Section 39(2) and (3) of the Elections Act, 2011 and Regulation 87 (2)(c) unconstitutional were adjusted to:

(a) eliminate "provisional results" and

(b) adjust Form 34C to reflect a collation of Forms 34B from the Constituency Returning Officers who had verified and tabulated the final results from the polling stations in Forms 34A.

[99] The declaration by the 2nd Respondent of the results of the election per County was in keeping with the constitutional requirement that the candidate declared elected as President receives at least twenty-five per cent of the votes cast in each of more than half of the Counties (herein, the County threshold).

[100] I am therefore satisfied with the adherence by the 1st and 2nd Respondents, to the guidelines by the Court of Appeal in the Maina Kiai case. This decision, delivered on 23rd June, 2017, 35 days prior to the conduct of the Presidential election in August, 2017, was definitive of the status of the law at that time. As such, the 1st and 2nd Respondent‘s adherence to those guidelines was an answer to the duty in Article 10 of the Constitution, binding all State Organs and State Officers to the national values and principles, in this case, the rule of law, whenever any of them (such as the 1st and 2nd Respondents) applies or interprets the Constitution, enacts, applies or interprets any law; or makes or implements public policy decisions. The only challenge was that the system of data transmission system from the polling station to the National Tallying Centre had already been set up.

[101] Having so determined, I must now prospectively interrogate, as invited by the Respondents to do, the place of the Maina Kiai case in the conduct of future presidential elections in Kenya.

[102] This Court is not new to Kenya‘s complex electoral history as so aptly considered by the Court of Appeal in its analysis. In fact, one of the issues this Court had to deal with in its maiden election appeals litigation following the March, 2013 General Elections was the process of declaration of election results resulting in an outcome after which the parties to the election, or a voter, are at liberty to file an election petition at the High Court. An examination of Hassan Ali Joho & Another v. Suleiman Said Shahbal and Others, (the Joho case), alongside that of Maina Kiai is necessary because Joho was extensively relied on by the parties during the hearing and determination of the appeal forming an integral part of the guiding precedent followed by the Appellate Court.

[103] The Maina Kiai case, though in many respects similar to the case of the Joho case, Supreme Court Petition No 10 of 2013; [2013] eKLR was a play of different legal and constitutional provisions. while the Joho Case interrogated the plurality of declaration processes for a gubernatorial election, a three-tier election with no requirement of a County or national threshold, the Maina Kiai case addressed itself to the declaration processes in a Presidential election; a two-tier election process [Article 138 (3)(c)] with a mandatory national and County threshold [Article 138 (4)(a) and (b)], and a defined mode of declaration [Article 138 (10)(a)]. Noteworthy is that these two cases were in different Electoral Law Amendment periods. The foregoing aspects therefore signal an imperative to distinguish Joho from the Maina Kiai case.

[104] The Court of Appeal succinctly framed the controversy before it in the Maina Kiai case as follows:

In the end, the learned Judges granted the petition by declaring that;

"…..to the extent that section 39(2) and (3) of the Elections Act provides that the results declared by the returning officer are provisional, that is contrary to Articles 86 and 138(2) of the Constitution. To the extent that regulation 83(2) of the Elections (General) Regulations 2012 provides that the results of the returning officer are subject to confirmation by the Commission, that is contrary to Articles 86 and 138(2) of the Constitution. To the extent that regulation 87(2)(c) of the Elections (General) Regulations 2012 provides that the results that the returning officer shall transmit electronically to the Commission are provisional, that is contrary to Articles 86 and 138(2) of the Constitution." (Emphasis supplied)

The highlighted phrase "subject to confirmation" and the word "provisional" were the main cause of discomfort prompting the 1st, 2nd and 3rd Respondents to Petition the High Court for relief. It is the construction of those very words by the three learned Judges that has now aggrieved the appellant to come to this Court. [Emphasis added]

[105] The question before the Court of Appeal was whether the purpose for which Section 39(2) and (3) of the Elections Act and Regulations 83(2) and 87(2)(c) (both Regulations now amended) were promulgated, or the effect of their implementation infringed any provision of the Constitution. In summary, the controversy was: (a) the finality of the declaration (if any) of presidential election results at the polling station, the constituency tallying center and the national tallying centre and (b) the process of transmission of election results from the polling station to the National Tallying Centre and the role of the Chairperson of the Commission in that process.

[106] I agree with the determination of the Court of Appeal that "the polling station is the true locus for the free exercise of the voter‘s will and that once the counting of votes as elaborated in the Elections ACT, 2011 and Regulations thereunder, with its open, transparent and participatory character using the ballot as the primary material means, as it must, that the count there is clothed with finality not to be exposed to any risk of variation or subversion.” Consequently, the concept of 'provisional results‘ does not exist in our Constitutional electoral practice. As such, we uphold the determination by the Court of Appeal that Sections 39(2) and (3) of the Elections Act, 2011 are inconsistent with the Constitution and to that extent, null and void.

[107] However, I depart from the decision by the Appellate Court to the extent that:

(i) it endorses another layer of tallying and verification of the result of the presidential vote in the form of the Constituency tallying centre and

(ii) incapacitates the Chairperson of the Commission, an integral part of the declaration process in a presidential election, from verifying the polling results.

In particular, the determination that:

Our interpretation of this Article (138 (3)(c) is that the appellant, which is represented at all the polling stations, constituency and county tallying centres can only declare the result of the presidential vote at the constituency tallying centre after the process we have alluded to is complete, that is, after tallying and verification.

Article 138 deals with events at the polling stations where votes are counted, tallied, verified and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to be construed to mean the chairperson but rather, the returning officers who are mandated, after counting the votes in the polling stations, to tally and verify the count and declare the result. The appellant, as opposed to its chairperson, upon receipt of prescribed forms containing tabulated results for election of President electronically transmitted to it from the near 40,000 polling stations, is required to tally and "verify" the results received at the national tallying centre, without interfering with the figures and details of the outcome of the vote as received from the constituency tallying centre. At the very tail end of this process, in Article 138(10) the chairperson then declares the result of the presidential election, and delivers a written notification of the result to the Chief Justice and to the incumbent President. That is how circumscribed and narrow the role of the chairperson of the appellant is.

[108] It is conceded that the Chairperson of the Commission cannot supplant the entries of a presiding officer against any candidate with his own figures, however, an arithmetic verification of the correctness of the summation in Form 34A and an examination of the authenticity of the instruments of declaration is permitted, nay, required by the Constitution. According to the Constitution, the Chairperson of the Commission is also the Returning Officer in a Presidential Election and therefore, ought to receive and preserve electoral material relating to that election in order to aid the election Court in its mandate as the final verifying Agency as elaborated in the foregoing section of this dissenting Judgement.

[109] To place the role of the Chairperson of the Commission in the scheme of a presidential election, I am guided by the following interrogations:

(i) what is a declaration in a presidential election? (ii) who makes that declaration and;

(iii) when is that declaration made?

[110] The formula of locating a declaration of the result of a presidential election lies within the Constitution and can be derived by a reading of Article 138 and 140 of the Constitution, together.

Article 138 (1)….. (2)…...

(3) In a presidential election-

(c) After counting the votes in the polling stations, the independent Electoral and Boundaries Commission shall tally and verify the count and declare the result. [Emphasis added]

(4) A candidate shall be declared elected as president if the candidate receives-

(a) more than half of all the votes cast in the election; and

(b) at least twenty-five percent of the votes cast in each of more than half of the Counties.

…..……………

(10) Within seven days after the presidential election, the Chairperson of the Independent Electoral and Boundaries Commission shall-

(a) declare the result of the election

Article 140

(1).A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.

[111] Adopting the decision of this Court in the Joho case, the word "declared” in Article 180 (4) of the Constitution (in this case, Article 138), has been used to depict the finality culminating in the declaration of the winner of an election. Article 138 (3) (c) of the Constitution is the pace -setter of the declaration process. It calls on the Commission to tally and verify the count before declaring the result. This formula is in terms of Article 86(a), simple, verifiable, transparent and accountable. Article 138(3)(c) eliminates need for the polling results in a presidential election to be tallied at the constituency tallying centre before being declared. Presidential election results are declared at the national tallying centre, by the Chairperson of the Commission. Before that declaration can be made; several things must be done:

(i) the polling results must be tallied-Art. 138 (3)(c)

(ii) the count must be verified-(Art. 138 (3)(c)

(iii) the national threshold must be met-Article 138(4)(a) and

(iv) the County threshold must be met-Article 138(2)(c).

These prerequisites can only be done at the National Tallying Centre by the Chairperson of the Commission who is also the person who Returns the Results of the Presidential Election in accordance with the Constitution.

[112] I am persuaded by the reasoning of the Irish Supreme Court in Kiely vs. Kerry County Council (Rev 1) [2015] IESC 97, where Mr. Justice William M. McKechnie writing for the majority, elaborated the role of a returning officer as follows, at paragraph 45:

Whilst it is undoubtedly the case that the role of the returning officer is indispensable to the election process, it is also evidently the case that he or she, in fulfilling that role, is a creature of statute and is bound by the terms of the express legislative provisions above referred to. Accordingly, in the performance of his (or her, as the case may be) duties and functions he must be guided by the principles so laid down in such legislation, within which is set out the framework where those whose names are validly on the register of electors can give effect to the franchise so vested in them. He must obviously not exceed the limits of the competence so conferred on him: he is therefore confined to what can legitimately be extracted from the provisions in issue, either by way of express conferment or necessary intendment. He cannot operate in excess of these limitations. He cannot, for example, justify any act or action, however desirable his intentions might be, based on any form of inherent power for the simple reason that his office is not amenable to attract competence in this way. When the occasion arises it therefore becomes a matter of statutory interpretation as to whether or not the act or omission complained of is within the competence of his office to perform. [Emphasis added]

[113] The role of the Chairperson of the Commission as the Returning Officer of the result of the presidential election is confined within the four corners of Articles 138 and 140 of the Constitution. The following determination by the Court of Appeal cannot therefore hold.

Article 138 deals with events at the polling stations where votes are counted, tallied, verified and declared. We hold further that reference to the appellant in Sub Article (3)(c) is not to be construed to mean the Chairperson but rather, the returning officers who are mandated, after counting the votes in the polling stations, to tally and verify the count and declare the result.

[114] This is the only logical result following a holistic and purposive interpretation of the Constitution. We have previously explicated on the essence of a holistic and purposive interpretation of the Constitution in Re Kenya National Human Rights Commission, Supreme Court Advisory Opinion Reference No. 1 of 2012 as follows:

"It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

In The Speaker of the Senate & Another v. Attorney-General & 4 Others, Sup Ct. Advisory Opinion No. 2 of 2013; [2013] eKLR, held, with respect to interpretation of the Constitution, as follows-at paragraph 226:

The Court, in the circumstances, should adopt a holistic approach to interpretation, with a view to protecting and promoting the purpose, effect, intent and principles of the Constitution.

In his concurring Opinion in the same matter, Mutunga, CJ & P, (as he then was) observed at paragraph 185 that a Constitution does not subvert itself. Therefore, no provision should be deemed to strike down another, but rather the provisions must be interpreted in a manner that each supports the other. The Constitution must be interpreted holistically and no provision should be read in isolation.

In the Joho case, this Court held that:

Indeed, ordinarily, in our view, a question regarding the interpretation or application of the Constitution may arise from a multiplicity of factors and interrelationships in the various facets of the law. Consequently, the Constitution should be interpreted broadly and liberally, so as to capture the principles and values embodied in it. [Emphasis added]

[115] It is therefore my considered view that Article 138 of the Constitution must be interpreted liberally and in a manner that none of its sub-Articles strikes down the other.

Electronic and Manual Electoral Processes

[116] Having determined the place of the Maina Kiai case in the 2017 Presidential Elections, and having, by this dissent appealed to the Supreme Court‘s consideration of that decision in Kenya‘s electoral practice, noting the unnecessary burden upon the value of simplicity of the electoral process through an added layer of the Constituency, I now turn to the role of electronic results transmission as a complement to the manual transmission of election results (the classical ballot election). Once again, the pillars of this section have been elaborated in the dissenting opinion of my brother, Justice J.B Ojwang, SCJ and I shall restate only in part, where necessary.

[117] The value of transparency underscores a critical component of elections: their public-nature. A voter must be able to verify whether the election act has been conducted and recorded accurately-hence the participatory nature of vote counting and tallying expressed in the Constitution, the Elections Act and Regulations thereunder. The public is represented, at the counting stage by accredited members of the media and international observers. The process of voting and declaration is also public.

[118] History is a great revealer of intent. Events inspire laws and public processes and at the heart of these laws and processes are shortcomings to be remedied, crises to be averted, needs to be met, and a nation to be efficiently and effectively governed. The disputed 2007 Presidential elections marked a turning point in electoral management in Kenya. Describing the political atmosphere during this period, the Committee of Experts on Constitutional Reform noted in their Preliminary Report dated 17th November, 2009 that:

These elections were heavily contested……………The final results were delayed and then announced amidst public tension and accusations that the delay was a sign that the President‘s party was attempting to rig the elections. Eventually, the results were announced on 30th December, 2007 and the President hurriedly sworn in.

[119] The Report of the Joint Parliamentary Select Committee on matters of the Independent Electoral and Boundaries Commission traces the historical use for deployment of Information Technology in elections. At paragraph 359, the report makes reference to the experience of voter registration and the ills thereof witnessed during the 2007 elections thus:

359. The Independent Review Commission on the General Elections found that the 2007 disputed General Elections were not credible due to names of deceased voters appearing in the electoral register, impersonation of absent voters and defective planning of voter registration system among other shortcomings in the electoral process. The Commission recommended that –

"Use of technology should also be implemented in order to enhance, not only integrity' and accuracy of results, but to increase speed of transmission, storage, and further analysis and audits by the ECK. If the law does not recognize results that are transmitted or tallied electronically, this technical solutions should, at least before the law is amended, be used as a parallel system for providing a backup system for ensuring accuracy of tallies and results, while still using the paper-based system of statutory forms." [Emphasis supplied]

[120] Based on the lessons drawn from the 2007 General Elections, technology was introduced to address the dual problem of (a) voter identification and (b) vote transmission. Following this recommendation, the Commission employed technology in the 2013 General Elections in the terms elaborated by the Committee‘s Report hereunder:

360. The Independent Electoral and Boundaries Commission employed technology in the 2013 General Elections in the following forms-

(1) The Biometric Voter Registration System (BVR) was used for registering voters. It comprises a laptop, a finger print scanner and a camera. The Biometric Voter Registration System (BVR) captures a voter‘s facial image, finger prints and civil data or Personally Identifiable Information (PII), that is, the name, gender, identity card or passport number, telephone number among other details.

(2) The Electronic Voter Identification System (EVID) is an electronic poll book. There are two types of Electronic Voter Identification System (EVID) technology: the laptop with attached finger-print reader and the handheld device with in-built finger print reader. The Electronic Voter Identification System (EVID) verifies and confirms voters electronically as registered by the Biometric Voter Registration System (BVR). They are used to ?check-in” voters at polling station on polling day and are helpful in streamlining. Electronic Voter Identification System (EVID) curbs impersonation and ensures that only those who registered to vote are allowed to vote.

(3) The Political Party Nominations System (PPNS) ensures that primary data on candidates nominated by political parties are entered in a format that makes it easy for the Independent Electoral and Boundaries Commission to verify the accuracy of the candidate details, compliance and generate ballot paper proofs. This is achieved by cross-matching the voters register and the political party register.

(4) The Results Transmission System (RTS) is a system for transmitting provisional results electronically to an observation centre. At the end of voting and when votes have been counted and tallied, the Presiding Officers enter the data on the signed results sheet (Form 35) into specially configured mobile phones and transmit the results simultaneously to the election results centres at the constituency, county and national level. The Results Transmission System (RTS) is meant to enhance transparency through electronic transmission of provisional results from polling stations and to also display and visualize provisional results at the tally centers and provide access to provisional elections data to media and other stakeholders in real time.

[121] Several issues referenced in the Report and detailed in the decision of the Court in the Raila 2013 case emerged from the use of technology in elections. At paragraphs 233-235, the Court observed that:

[233] We take judicial notice that, as with all technologies, so it is with electoral technology: it is rarely perfect, and those employing it must remain open to the coming of new and improved technologies. Analogy may be drawn with the traditional refereeing methods in football which, as their defects became apparent, were not altogether abandoned, but were complemented with television-monitoring, which enabled watchers to detect errors in the pitch which had occurred too fast for the referees and linesmen and lineswomen to notice.

[234] In the instant case, there is evidence that the EVID and RTS technologies were used in the electoral process at the beginning, but they later stalled and crashed. Different reasons explain this failure but, by the depositions of Dismus Ong‘ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time. It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.

[235] But as regards the integrity of the election itself, what lawful course could IEBC have taken after the transmission technology failed? There was no option, in our opinion, but to revert to the manual electoral system, as was done.

[122] A stakeholder recommendation of employing an integrated electoral technology was implemented birthing the Kenya Integrated Electoral Management System [KIEMS). The functioning of this system is what has been contested in the Petition and supporting Affidavits. In summary:

[See foregoing paragraphs of this Judgement and the pillars in Justice Ojwang‘s dissenting Judgement for a full outline]

(i) That there was system manipulation occasioning unfair advantage to the 3rd Respondent and unfair disadvantage to the Petitioners. In particular, that there was a consistent 11% variance between the 1st Petitioner and the 3rd Respondent in the transmission results displayed on the Commission‘s portal.

(ii) That certain results were not transmitted in the form mandated by the Electoral law, fatally compromising the result of the election.

(iii) That the results transmitted using the KIEMS system were materially different between Forms 34A and B

(iv) That the election results were pre-determined by the Commission

[123] The case on transmission is supported by the Affidavits of Raila Odinga, Aprielle Oichoe, Koitamet Ole-Kina and Godfrey Osotsi.

[124] The 1st Petitioner‘s evidence can be summarized as follows:

(i) That the IEBC deliberately and/or negligently comprised the security of the integrated electoral management system (KIEMS) and thereby exposed it to unlawful interference by third parties.

(ii) Collation, tallying, verification, verification and transmission of the presidential results was riddled with procedural flaws, illegalities of the nature and extent that compromised the credibility of final result.

(iii) That soon after procurement of KIEMS and establishment of ETAC, the IEBC conducted itself in a manner that weakened the security of integrated electronic system and exposed it to risks of interference from third parties that may have compromised the integrity of system. In particular:

a. That the Elections Technology Committee (ETAC) was declared unconstitutional in Petition No. 127 of 2017 and the Commission failed to defend the Regulations or inform the stakeholders of the said suit.

b. That the Commission filed Petition No. 415 of 2016 to declare section 39(1C) unconstitutional, which section is the basis of electronic transmission of results.

c. That the Commission failed to put in place several preparatory measures set up by law to assure the integrity and efficiency of KIEMS such as preparation, development, publication and implementation of a disaster recovery and operations continuity plan in the event KIEMS collapsed.

d. That two days to the presidential elections, IEBC announced that over 11,000 polling stations were purportedly out of 3G and 4G network range and results from these locations would therefore be transmitted manually.

e. That the Commission commenced the testing, verification and deployment of technology two days to the general elections contrary to requirement of at least 60 days to the election and therefore denied the public opportunity to verify the efficiency and the security of the same.

f. That despite clear advice from the Communication Authority of Kenya against hosting a private cloud to supplement the Commission‘s primary and disaster sites, it contracted OT Morpho SAS (France) thereby compromising the security of the cloud.

g. That the death of the Commission‘s ICT Manager in charge of the management of the integrated electronic system was a clear attempt to further weaken the electronic electoral system.

h. That failure to transmit results from polling stations and constituency electronically together with the prescribed forms exposed the collation and tallying process to manipulation.

i. That the unreasonable delay in electronically transmitting results together with the prescribed forms grossly affected the credibility and validity of the results. They averred that transmission of results without prescribed forms has no basis in law.

[125] Aprielle Oichoe swore an Affidavit on the basis of expertise in cyber security. As such, her deposition was drawn on the basis that her observation of the transmission process, compounded by her ?expertise‘ (although none was proven in terms of certifications) was useful in evaluating compliance with the six main components or principles which the Commission systems and database ought to have been tested against. The deponent outlined the six principles as follows:

1) Confidentiality: that information ought to be accessed by authorized persons.

2) Integrity: Information used should be accurate, complete and protected from malicious modification either by authorised or unauthorized persons. In this regard, she swore that non-authenticated forms and non-prescribed results appeared on the 1st Respondent‘s public portal. No evidence with particulars of these forms was however adduced to support this ?expert opinion.‘

3) Availability: it was her sworn evidence that systems required must be available as and when required by those authorized to use it in accordance with Articles 35 and 47 of the Constitution and Section 44 of the Elections Act as read with Section 4 of the Access to Information Act and Regulation 15 (4) of the Elections (Technology) Regulations, 2017. She swore that during the voting process, some persons could not find their names on the register and the explanation given by the Returning Officer in Upper Hill High School Polling station was that the affected persons either shard identity cards with other persons or their data has been lost by the 1st Respondent. Once again, no evidence was adduced, either in the form of affidavits from the affected persons or the Returning Officer in question to support this allegation.

4) Non-repudiation: An audit trail must be maintained on activities related to the information. Logs are therefore essential to trace actions performed on a computer system. That an entry was made into the system and a strange return made in the system in the form of an exercise book. The non- repudiation principle is supposed to ensure security by the unique identifier, in this case it was the QR code used by presiding officer to map the KIEMS device within the Results Transmission system

5) Authenticity: the information itself must be proven to be genuine and the source must also be proven to be genuine. In her expert opinion, at the time of declaration of results, there were only 29,000 Forms 34A available and the 1st Respondent declared the results with the authenticity of most Forms in dispute. Some of the forms used to declare the results differed with those returned by the Agents from the field. Once again, these forms were not produced as annexures to the Affidavit.

6) Privacy: IEBC failed to secure its data justifying the conduct of a systems audit.

An Assessment of the 'Expert Opinion' of Aprielle Oichoe

[126] Although the deponent claimed cyber security expertise, no certifications were provided to prove the existing expertise to warrant the weight placed on expert opinions by the Court. Section 48 of the Evidence Act, Cap 80 of the Laws of Kenya is instructive on this point:

48. Opinions of experts

(1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.

[127] Although the deponent outlined the six principles which the transmission systems and database ought to have been tested against, the source of that opinion was not provided. Sufficient evidence to prove the link between those principles, the imperatives of electoral conduct and elaborate omission by the 1st Respondent, supported by any evidence, was not provided. Experts, when admitted before the Court, in person or by deposition, in the words of Lord Justice Jacob in Rockwater Ltd vs. Technip France SA (formerly Coflexip SA & Anor, Case No. A3/2003/107 have a primary function:

"their primary function is to educate the court in the technology

– they come as teachers, as makers of the mantle for the court to don."

Further, as elaborated by Sir Donald Nicholls V-C giving the judgment of the Court of Appeal in Mölnlycke v Proctor & Gamble [1994] RPC 49 at p. 113 (although determining a matter of patent):

As a practical matter a well-constructed expert‘s report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not.

[] In my view, this Affidavit does not meet the essential attributes of 'Expert opinion to guide the resolution of the question of transmission verification in issue.

[128] Koitamet Ole Kina deponed that as a duly accredited agent of the Petitioners, he was at the National Tallying Centre and witnessed results streaming into the online portal at 5:15pm, soon after the close of polling. They could not however verify the results of the elections because the same were not accompanied by hard copies of Forms 34A or the soft copies received by the 1st Respondent on their servers. They received 23,000 Form 34A on 10th August, 2017, and 50 Forms 34B. On 11th August, 2017, they were notified that only 29,000 Forms 34A were available with a shortfall of over 11,000 Forms 34A. Further, only 108 Forms 34B were available at the National Tallying Centre. Later that evening, the Commission confirmed that it was in possession of all Forms 34B and was ready to declare the result. In a letter dated 15th August, 2017 by the CEO of the 1st Respondent, it was indicated that all the Forms 34B had been availed by the Commission and handed to the deponent on 14th August, 2017.

[129] Godfrey Osotsi, the Secretary General of Amani National Congress Party and a duly accredited Agent nominated by NASA swore an affidavit as an IT expert with over 12 years‘ experience. He swore that on the basis of information from Waqo Shuke, a member of the 1st Respondent‘s ICT staff, the tallying process involved two sets of results, those with Forms 34A and those based on text messages only. The explanation obtained was that these results were coming from areas with no 3G or 4G network coverage. Despite a 10% variance (54 and 44%), the Petitioners' were denied access to the system back-end (servers) to ascertain the source of the variance.

[130] He doubted whether each presiding officer used their unique QR code to transmit the results of the election from the various polling stations to the Constituency Tallying Centres and to the National Tallying Centre.

[131] He joined Ole Kina in deposing that declaration of election results could only be done when the Commission was in possession of all Forms 34A and B, which was not the case during this election because at the time of declaration. He emphasized that the results could only be called or declared when the Commission was in possession of all the Form 34A and 34B and at the time of declaration; the Commission had only 29,000 Forms 34A. He asserted that the results transmitted from the 11,000 polling stations out of 3G and 4G network coverage could not be ascertained and compromised up to 7 million votes. In his evidence, vote transmission could only be manual, not both manual and electronic.

[132] I must however point out that his evidence cannot be considered as that of an expert witness because he describes himself as part of the Petitioners‘ party and in my view, supporting the averments in the Petition as opposed to advancing expert opinion to the Court. This evidence must therefore be examined with that caution in mind. Ngaah J, in Peter Kariuki Njenga v Gabriel P. Muchira & Another [2017] eKLR Civil Appeal, No. 188 of 2010, referred to the following passage on expert evidence:

In Cross on Evidence 5th Edition at page 446, the following passage from the judgment of President Cooper in Davie versus Edinburgh Magistrates (1933) SC 34,40, is set out as stating the functions of expert witnesses:

''Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts put in evidence."

So an expert witness who hopes to carry weight in a court of law, must, before giving his expert opinion:

1. Establish by evidence that he is specially skilled in his science or art.

2. Instruct the court in the criteria of his science or art, so that the court may itself test the accuracy of his opinion and also form its own independent opinion by applying these criteria to the facts proved.

3. Give evidence of the facts on which may be facts ascertained by him or facts reported to him by another witness. [Emphasis supplied]

In response

[133] The 1st and 2nd Respondents‘ averred that:

(i) Transmission was completed in accordance with the electoral law and Regulations thereunder and in terms of the decision of the Court of Appeal in the Maina Kiai case

(ii) The completion of the transmission of the image of Forms 34A was dependent on the availability of 3G or 4G network coverage and where this was unavailable, alternative mechanisms to ensure completion in transmission of the image of the Form 34A in areas that lacked 3G or 4G network coverage, was established.

[134] The 2nd Respondent swore that appropriate training had been completed before the KIEMS kits were deployed for elections.

[135] The CEO of the Commission, Mr. Ezra Chiloba reinforced this assertion by deposing that more than 360,000 election officials were recruited and trained across the country to conduct the elections.

a. It was the deponent‘s testimony in response to the 1st petitioner‘s Affidavit that that the law was amended vide the Election Laws (Amendment) Act, 2017 to provide for a period of four (4) months within which to procure and put in place the KIEMS. He averred that the 1st Petitioner‘s allegation in his affidavit evidence that electronic electoral system may have been exposed to risk of interference was speculative and untrue.

b. The cases referenced by the Petitioners were both filed by other parties and the Commission was enjoined to these causes on the basis of its role in electoral preparations. [See: Collins Kipchumba Tallam vs. The  Attorney General, Petition No. 415 of 2016 and Dr. Kenneth Otieno vs. The AG & IEBC, Petition No. 127 of 2017].

[136] James Muhati, the 1st Respondent‘s ICT Director referred to the History of Electronic Transmission in Kenya and swore that section 44 of the Elections Act was amended (by inserting Section 44A to address the concerns raised by failure of technology in the 2013 General Elections.

[137] Mr. Muhati deposed that the Commission and ETAC ensured that mechanisms to satisfy the Constitutional and Statutory while using the KIEMS were put in place by the Commission. He also averred that the Commission, pursuant to section 44(5) of the Elections Act published the Elections (Technology) Regulations 2017 on 21st April, 2017, 3 months before the general elections. He deponed that the 1st respondent developed and implemented a policy to regulate the progressive use of technology in the electoral process.

[138] He swore that the transmission required 3G and 4G mobile network which was provided by three Mobile Network Operators (MNOs) i.e. Safaricom Limited, Airtel Kenya Limited and Telkom Kenya Limited. These providers were assigned zones of covered out of the thirteen zones established around the country. Each zone was powered by two providers, one as a primary service provider and the other as back-up. This was done to ensure consistency and accountability in operation and availability of service. It was his testimony that in a zone where an MNO was neither a primary nor secondary service provider, it was not expected to provide any results transmission system since KIEMS could only accommodate two SIM cards. Accordingly, the Commission gave such provider the coordinates of polling stations within the zones to enable the service provider prepare itself for the provision of results transmission services. The zoning was to ensure effective data segmentation into manageable parts.

[139] He averred that following a mapping exercise carried out by the Commission and analysis by the service providers, it was ascertained that about 11,155 polling stations within the country were not effectively covered by either 3G or 4G Network and this communication was sent out to the public vide a Notice dated 6th August, 2017. As a result, it was averred that presiding officers in these areas were instructed to move to points where there was network coverage or in the alternative go physically to the Constituency Tallying Centres in order to transmit the results. He further swore that the Commission had made all the necessary arrangements to avail all Forms 34A in a public portal.

[140] Regarding the security guarantees inbuilt within the KIEMS system, it was Mr. Muhati‘s evidence that there was:

(i) configuration of only pre-determined and authorized tablets for transmission which was under constant round the clock automated monitoring,

(ii) secured network spectrum with a twin high-level perimeter firewall which filtered unauthorized transmission,

(iii) robust database management solution with recommended security options such as pre-encryption or results;

(iv) secure Virtual Private Network (VPN) and a granular role-based access control and user management for the entire Result Transmission System (RTS) and the SIM cards used during the exercise were disabled for voice and text messaging and had unique security features to conduct the exercise. Any attempts to relay data from a SIM card other than those provided by the service providers was easily detectible.

[141] He further averred that the KIEMS kit was configured in such a way that it could not transmit data which bore more registered voters than those specific to a particular polling station.

[142] Brian Gichana Omwenga swore an Affidavit in response to the allegations in his capacity as the 3rd Respondent‘s Party Technical Advisor and a software and systems engineer, holding a Masters Degree in Engineering Systems, Technology and Policy from the Massachusetts Institute of Technology (MIT) on the issue of transmission. It was his evidence he elaborated that although the results keyed-into the KIEMS kit would be accompanied by an image of Form 34A, in areas without 3G or 4G network coverage, transmission of the scanned image of Form 34A would either delay or not be sent at all, prompting the presiding officer to deliver Form 34A physically to the Constituency Tallying Centre. These Forms would thereafter be used to tally the results in Forms 34B.

[143] Having laid out critical elements of the petitioners‘ issue with the transmission of the results of the Presidential election, I now turn to the analysis. The allegations, although in most part, bare of any evidence (e.g. the blanket allegation of 11000 polling stations without proper particulars, and the link of tangential events such as publicly available law suits to the functioning of the system) present certain critical areas for examination:

(i) What is the import of Sections 39, 44 and 44A as far as transmission of election results is concerned?

(ii) Is technology a mandatory component of Kenya‘s electoral transmission process?

(iii) Is the Petitioners‘ averment that technology was the only acceptable mode of election results transmission accurate and that lack of 3G and 4G coverage in 11,000 polling stations compromised over 7 million votes? What is the complementary mechanism provided under Section 44A of the Elections Act?

[144] The High Court (upheld by the Court of Appeal) has had a chance to consider the use of technology in elections in Kenya and particularly, interpretation of Sections 39, 44 and 44A of the Elections Act in a decision wwhose final determination I concur with. In National Super Alliance (NASA) Kenya vs. The Independent Electoral and Boundaries Commission & 2 Others, Constitutional Petition No. 328 of 2017 (The NASA case), the High Court held that:

80. A plain interpretation of section 44A shows that the legislature intended the establishment of a mechanism that is complementary to the one set out in section 44 of the Act. The system under section 44 is an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results. It places emphasis on the use of technology.

81. In the The Concise Oxford English Dictionary, Oxford University Press, 12th Edition 2011, the word complementary ?means forming a complement or addition, … combining in such a way as to form a complete whole or enhance each other” while complement means ?a thing that contributes extra features to something else so as to enhance or improve it…”. That being the plain and literal meaning of the word complementary, our view is that section 44A of the Act presupposes a mechanism that will complement, add, enhance or improve the mechanism already set out in section 44 of the Act.

82. It follows therefore that the complementary mechanism in section 44A need not be similar, same, akin or parallel to the one set out in section 44 of the Act. All that is required for that mechanism is that it should add to or improve the electronic mechanism in section 44 of the Act. But at the same time, be simple, accurate, verifiable, secure, accountable and transparent. It should allow the citizens to fully exercise their political rights under Article 38 of the Constitution. This complementary mechanism only sets in when the integrated electronic system fails.

[145] While I find the decision of the High Court quite compelling, I would, with respect, reinforce it by applying the terms of the Constitution. The Honourable Justices only partially interpreted Section 44A and restricted themselves to the Elections Act without due regard to Articles 38 and 86 of the Constitution. Having referenced the decision of this Court in Raila 2013 case, the High Court rightly observed at paragraph 54:

54. It is clear from this judgment that when the electronic system fails there should be a fall-back system to avoid the entire election falling into shambles

A situation not envisaged by Articles 38 and 86 (d) of the Constitution.

[146] Article 86 of the Constitution lays down the parameters of voting in furtherance of the right to vote in free and fair elections pursuant to Article 38 of the Constitution. The system of voting ought to be simple, accurate, verifiable, secure, accountable and transparent. It is peculiar that with regard to voting, Article 86 does not make any direct reference to transmission of the election results. However, transmission, as discussed in the foregoing paragraphs is an integral part of the electoral process. It is the mode through which the results leave the polling station to the Constituency Tallying Centre and the National Tallying Centre. In order to enable voting and give full effect to the right to vote, appropriate structures must be set up. According to Article 86(d) of the Constitution, these structures and mechanisms ought to eliminate electoral malpractice. The KIEMS system was one such mechanism. The Constitution goes further and mandates that included in those appropriate structures and mechanisms is the safe-keeping of election materials. This requirement completes the dictates of accuracy, verifiability, security, accountability and transparency of the election process. But why does the Constitution emphasise on the safe-keeping of election materials as part of the appropriate structures and mechanisms to eliminate electoral malpractice and what then ought to be the interpretation of Sections 39(1)(C), 44 and 44A with reference to this provision?

[146A] These provisions provide as follows:

39. Determination and declaration of results

(1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.

(1A) The Commission shall appoint constituency returning officers to be responsible for—

(i) tallying, announcement and declaration, in the prescribed form, of the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;

(ii) collating and announcing the results from each polling station in the constituency for the election of the President, county Governor, Senator and county women representative to the National Assembly; and

(iii) submitting, in the prescribed form, the collated results for the election of the President to the national tallying centre and the collated results for the election of the county Governor, Senator and county women representative to the National Assembly to the respective county returning officer.

(1B) The Commission shall appoint county returning officers to be responsible for tallying, announcement and declaration, in the prescribed form, of final results from constituencies in the county for purposes of the election of the county Governor, Senator and county women representative to the National Assembly.

(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.

(1D) The chairperson of the Commission shall declare the results of the election of the President in accordance with Article 138(10) of the Constitution.

(2) Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election.

(3) The Commission shall announce the provisional and final results in the order in which the tallying of the results is completed.

44. 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 sub section (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. [Emphasis added]

[147] The High Court kept a consistent eye on the essence of the Elections Act in general and Section 44 and 44A in particular with regard to engaging and protecting the right to vote. Technology is a means to an end (a verifiable election result) not an end in itself. In fact, the Court was aware of the enduring need to always consider Article 38 and its reinforcing provisions while construing provisions in the Elections Act when it referenced the German Federal Constitutional Court‘s Judgement of the Second Senate in part:

bb) in a republic, elections are a matter for the entire people and a joint concern of all citizens. Consequently, the monitoring of the election procedure must also be a matter for and a task of the citizen. Each citizen must be able to comprehend and verify the central steps in the elections reliably and without any special prior technical knowledge.

cc) The Public nature of the elections is also anchored in the principle of the rule of law. The public nature of the state‘s exercise of power, which is based on the rule of laws, serves its transparency and controllability. It is contingent on the citizen being able to perceive acts of the state bodies. This also applies as to the activities of the election bodies.

b) The principle of the public nature of elections requires that all essential steps in the elections are subject to public examinability unless other constitutional interests justify an exception. Particular significance attaches here to the monitoring of the election act and to the ascertainment of the election result. An election procedure in which the voter cannot reliably comprehend whether his or her vote is unfalsifiably recorded and included in the ascertainment of the election result, and how the total votes cast are assigned and counted, excludes central elements of the election procedure from public monitoring, and hence does not comply with the constitutional requirements.

c) Despite the considerable value attaching to the constitutional principle of the public nature of elections, it does not ensue from this principle that all acts in connection with the ascertainment of the election result must take place with the involvement of the public so that a well-founded trust in the correctness of the elections can be created…………

It is certainly ensured in these cases that the voters are in charge of their ballot and that the result of the election can be reliably checked by the election authorities or by interested citizens without any special prior technical knowledge…………. b) Restrictions on possibilities for citizens to monitor the election events cannot be compensated for by sample devices in the context of the type approval procedure or in the selection of the voting machines specifically used in the elections prior to their deployment being subjected to verification by an official institution as to their technical performance. The monitoring of the essential steps in the election promotes well-founded trust in the correctness of the election certainly in the necessary manner that the citizen himself or herself can reliably verify the election event.

For this reason, a comprehensive bundle of other technical and organizational security measures (e.g. monitoring and safekeeping of the voting machines, comparability of the devices used with an officially checked sample at any time, criminal liability in respect of election falsifications and local organization of the elections) is also not suited by itself to compensate for a lack of controllability of the essential steps in the election procedure by the citizen. Accordingly, neither participation by the interested public in procedures of the examination or approval of voting machines, nor a publication of examination reports or construction characteristics (including the source code of the software with computer-controlled voting machines) makes a major contribution towards ensuring the constitutionally required level of controllability and verification of the election events.

Technical examinations and official approval procedures, which in any case can only be expertly evaluated by interested specialists, relate to a stage in the proceedings which is far in advance of the ballot. The participation of the public in order to achieve the required reliable monitoring of the election events is hence likely to require other additional precautions.” [Emphasis Added]

[148] However, a sharp deviation from this consistence is marked by the Court‘s opinion at paragraph 72, in part:

72. Under sections 39 and 44 of the Act, the use of technology in our electoral system is entrenched. Registration of voters, their identification at the point of voting and the transmission of election results is purely electronic. However, the actual voting, tallying and collating of votes is wholly manual.

I disagree with the High Court‘s conclusion that transmission of election results is purely electronic. To maintain that standard would be to negate the purport of Section 44A of the Elections Act. A clear understanding ought to be made of the components of our electoral system – whether electronic or manual.

What constitutes the electoral system in Kenya?

[] Article 83 of the Constitution provides that:

(1) …

(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.

[] Section 4 of the Elections Act, 2011 provides that the Independent Electoral and Boundaries Commission (Commission) shall compile and maintain the Register of Voters. Section 5 of the Elections Act, 2011 provides that:

(1) Registration of voters and revision of the register of voters under this Act shall be carried out at all times …

(5) The registration officer or any other authorised officer referred to in subsection (3) shall, at such times as the Commission may direct, transmit the information relating to the registration of the voter to the Commission for inclusion in the Register of Voters.

[] Section 44 of the Elections Act, 2011 provides that:

(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.

[] These provisions are the basis of registration of voters by the Commission. Registration of voters in Kenya is conducted when the voter physically goes to the registration centre and his details are manually inputted into an electronic system and his biometrics are taken as part of his identification mechanism pursuant to Regulation 8 of the Elections (Registration of Voters) Regulations, 2012. This Regulation provides that:

A register of voters shall contain biometric data and the particulars set out in Form A in the Schedule.

Further Regulation 13A provides the process to be followed during the registration of a voter, in the following terms:

Registration procedure

(1) A person who applies to be registered as a voter shall present his or her identification document to the registration officer stationed at a Registration Centre of his or her choice. (2) The registration officer shall, where the applicant is qualified to be registered as a voter, issue the applicant with Form A as set out in the Schedule.

(3) The applicant shall return the duly completed Form A

to the registration officer and the registration officer shall confirm the details in the form and enter them in the biometric voter registration system and the Voters Record Book. (note the filling of the form is manual)

(4) The applicant shall be issued with an acknowledgement slip upon registration.

[] The details of the voter are thereafter transmitted by the Registration officer to the Commission for compilation, pursuant to the Regulation 12. This Regulation provides as follows:

12. Certification of Register of Voters

(1) Where as a result of operation of section 5 of the Act, the registration of voters has been ceased, the Registration officer shall compile the list of registered persons.

(2) The registration officer shall after effecting compilation of the register of voters relating to the constituency submit his or her component for compilation by the Commission.

(3) The Commission shall compile the register of voters comprising of components under section 4 of the Act. (4) …

[149] Therefore the registration is electronic, but it can only be done manually by the Registration Officer or another officer designated to do the registration, hence a voter must physically present himself at registration centre.

The voter‘s details and biometrics are then manually inputted into the Register of Voters which by law includes an electronic register. The definition section of the Elections Act, 2011 describes the Register of Voters as:

"[A] current register of persons entitled to vote at an election prepared in accordance with section 3 and includes a register that is compiled electronically."

 [150] During  the elections the voter goes to the polling station and uses his National Identification Card as one means of identification and then undergoes a biometric voter identification process which is electronic. If for any reason the system is not able to identify the voter using the biometrics then a complementary manual system shall be applied in the identification of the voter, pursuant to Section 44A of the Elections Act, 2011.

[152] Therefore there is a twin scheme of manual and electronic voter identification at the polling station during the elections. Voting is also manual not electronic as voters mark their ballots and cast them into the ballot boxes. Once the voting process ends at the polling station, the votes are manually counted and the presidential election results recorded manually in the Form 34A by the Presiding Officer.

[153] Regulation 5 of the Elections (General) Regulations, 2012 unequivocally sets out the functions of the presiding officer in the following terms:

(1A) The functions of a presiding officer shall be—

(a) presiding over elections at an assigned polling station;

(b) tallying, counting and announcement of results at the Polling station;

(c) submitting polling station results to the Constituency returning officer; and

(d) electronically transmitting presidential results to the constituency, counties and national tallying centers.

[154] Therefore upon signing Form 34A and ensuring the same is signed by the agents of the candidates present in the polling station, the presiding officer manually inputs the results and the scanned Form in the designated electronic kit and electronically transmits the results to the Constituency, County and National Tallying Centres. The Kenya Integrated Election Management System (KIEMS) kit applied for that purpose requires 3G or 4G network, as indicated by Learned counsel for the 1st respondent in order to transmit the results. In the areas where that nature of network is not available, the presiding officer will be required to move to an area where that network is available in order to electronically transmit the results. A copy of the Form containing the declared results is also pinned on the door of the polling station.

[155] It is clear that the counting of the votes and the declaration of the results at the polling station is manual but the transmission is electronic. Nonetheless, by dint of Section 44A of the Elections Act, 2011 if the electronic transmission of the results fails then the presiding officer will revert back to the manual system of transmission in which case he will have to physically deliver the Form 34A to the Constituency Returning officer.

[156] In like manner, the Constituency Returning Officer upon receipt of the Forms 34A from the polling stations in the constituency, will manually tally, collate and verify the results and complete the Form 34B. He will then send those results electronically to the County and National Tallying Centres. If that fails, he will deliver them manually. Similarly, at the National Tallying Center the results are tallied, collated and verified manually and the declaration of the winning presidential candidate is done. The Certificate of Declaration of Results is then manually handed to the President-elect.

[157] Kenya‘s electoral process cannot therefore be said to be purely electronic. It comprises of both manual and electronic components. It is a rather ugly grouchy and reluctant mongrel of two very distinct processes. In fact it is a largely manual system. It is therefore very distinct from electronic electoral processes exhibited in foreign jurisdictions such as India, Australia, the United States of America, Canada, and Brazil among others.

[157]In India, for instance, the process of voter registration is now electronic since a voter is able to register as a voter online by completing a form online and submitting it to the electoral body for registration. The process of voting is done by use of Electoral Voting Machines and the votes are counted and tallied electronically. There are no paper ballots.

[158] In Australia the Parliamentary elections are conducted by an electronic voting system which uses standard personal computers as voting terminals. Voters use a barcode to authenticate their votes. The voting terminals are linked to a server in each polling location using a secure local area network. However no votes are transmitted over a public network such as the internet. The votes are then electronically counted and tallied. Again, there are no paper ballots.

[159] In the United States of America voting is by way of optical-scan ballots or by direct-recording electronic devices that record votes electronically. The votes are counted and tallied electronically. Dominant in these jurisdictions where the electoral process is electronic is the electronic counting and tallying of the votes -an element which we do not have in our electoral process.

[160] The upshot is that in Kenya, the system of voting is partly manual and partly electronic with the option of reverting to the manual processes should the electronic processes fail. However, the counting of votes, tallying, collation and verification of the results is entirely manual.

[161] An interpretation of Section 44A of the Elections Act is incomplete without due consideration to Article 38 and 86(d) of the Constitution and Section 39 and 44 of the Elections Act. With respect, the High Court considered it only in light of Section 44 advancing an incomplete conclusion. At paragraphs 80-87, parts which I would construe differently, the High Court held:

80. A plain interpretation of section 44A shows that the legislature intended the establishment of a mechanism that is complementary to the one set out in section 44 of the Act. The system under section 44 is an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results. It places emphasis on the use of technology.

81. In the The Concise Oxford English Dictionary, Oxford University Press, 12th Edition 2011, the word complementary means forming a complement or addition, … combining in such a way as to form a complete whole or enhance each other while complement means a thing that contributes extra features to something else so as to enhance or improve it.... That being the plain and literal meaning of the word complementary, our view is that section 44A of the Act presupposes a mechanism that will complement, add, enhance or improve the mechanism already set out in section 44 of the Act.

82. It follows therefore that the complementary mechanism in section 44A need not be similar, same, akin or parallel to the one set out in section 44 of the Act. All that is required for that mechanism is that it should add to or improve the electronic mechanism in section 44 of the Act. But at the same time, be simple, accurate, verifiable, secure, accountable and transparent. It should allow the citizens to fully exercise their political rights under Article 38 of the Constitution. This complementary mechanism only sets in when the integrated electronic system fails.

83. It was the petitioner‘s contention that the mechanism envisaged under section 44A is akin to the one in section

44 of the Act; that the debate in Parliament did not indicate that the complementary mechanism was to be manual. With greatest respect, we do not think that there is any ambiguity in the language used in section 44A to resort to the Hansard of Parliament in order to decipher the true intention of the legislature in this case. The language and meaning in that section is plain and clear. To our mind, what was required of the respondent was to put in place a mechanism that would complement the one set out in section 44 of the Act. The particulars of the mechanism, whether electronic, manual, or any other mode was not expressly provided in section 44A. If that were the intention of Parliament, nothing would have been easier than to specify so.

84. One other thing that buttresses our position that the mechanism contemplated in section 44A of the Act is independent of the one set out in section 44 of the Act, is the use of the words Notwithstanding the provisions of section 39 and section 44, …‘. The use of the term 'notwithstanding‘ makes the mechanism in section 44A independent of what is contained in sections 39 and 44. The authors of Stroud‘s Judicial Dictionary of Words and Phrases 6th Edition, London, Sweet and Maxwell 2000 at page 1732 have defined notwithstanding as follows:

NOTWITHSTANDING: Anything in this Act to the contrary notwithstanding is equivalent to saying that the Act shall not be an impediment to the measure, …

85. On the other hand, the Blacks Law Dictionary, 9th edition, Bryan and Garner, 2009, defines the word notwithstanding to mean despite, inspite of. In this regard, the use of the term notwithstanding in section 44A means that inspite of what the provisions of section 39 and 44 stipulate as to the mechanism in our electoral system, the respondent is to put in place a mechanism to complement sections 39 and 44 of the Act. All that is required is that the said mechanism be simple, accurate, verifiable, secure, accountable and transparent; and, one which will not disenfranchise the citizens.

86. We are fortified in our finding by the decision of the Supreme Court of India in Chandavakar Rao v Ashalata Guram [1986] 4SCC 447. It was held-

-A clause beginning with the expression notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract‘ is more often than not appended to a section at the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that inspite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment.

87. Accordingly, our determination on what constitutes the components of the complementary mechanism to be established under section 44A of the Act is: that the mechanism should be separate but which is meant to improve or aug