Thursday, April 25, 2013

Detailed Review of the Kenyan Supreme Court Decision


The Kenyan Supreme Court decision about the March 4, 2013 General Election was very long. It was 113 pages total.

Accordingly, with the assistance of my wonderful GA, Jillian Underwood, I have taken on the task of giving you a blow by blow of what the opinion said. A future post will give my analysis of the same. But do to the length of the opinion, this post will simply tell you what was in the opinion.

Please note that I am a licensed lawyer. I graduated with honors from the University of Texas School of Law. I also clerked for Justice Jack Hightower on the Supreme Court of Texas. Finally, I was an honors trial attorney for the United States Department of Justice. I am not licensed in Kenya. However, both Kenya and the US are essentially common law systems. Accordingly, I do have enough knowledge to comment intelligently on this topic. However, what follows below is an outline of the court's decision.


The IEBC was created by article 88 of the Kenyan Constitution (2010) and the IEBC is responsible for conducting free and transparent elections.

Three Petitions were filed. On March 25th all three petitions were consolidated.

1)   Complaint One was filed on March 14 by Moses Kiaarie Kuria, Denise Njue Itumbi, and Flowrence Jematiah Sergon. Claim:
a.     Respondents’ decision to include rejected votes in the final tally had a prejudicial effect on the percentage of votes won by Kenyatta.

2)  Complaint Two was filed on March 16 by Galdwell Wathoni Oteieno and Zahid Rajan. Claim:
a.     The election was not conducted in accordance with the Constitution
                                               i.         IEBC failed to establish and maintain accurate voter register that was publically available, verifiable, and credible as required by the Constitution.
                                              ii.         IEBC is obligated under the constitution to tally and verify the results and the polling stations, give electronic transmission of the provisional results and include party agents in the National Tallying Centere.
b.     The true number of registered voters was unknown and without the credible principal voter register the validity of the election is tampered.
c.       IEBC failed to meet the mandatory legal requirements to electronically transmit election results.

3)   Filed on March 16, 2013 by Raila Odinga. Claim:
a.     The process was so fundamentally flawed that the presidential results must be reconsidered.
                                               i.         Evidence included the IEBC changing their official tally of registered voters several times and the final total of registered voters differing from what was recorded n the Principal Register. Some polling stations reported higher numbers than those registered.
 Main Issues:
1)   Whether Kenyatta and Ruto were validly elected.
2)   Whether the election was free, fair, transparent, and credible in manner in compliance with the Constitution.
3)   Whether rejected votes should be included in determining the final tally votes.
4)   What consequential declarations, orders, and relieves should the Court grant.

Rejected Votes
·      The petitioners state the respondents unlawfully used a format that included rejected votes as a basis for determining met the threshold as stipulated by 138, or at least their understanding of the article. They also cite Rule 77 of the 2012 General Election Regulations that state rejected paper ballots should be void. Therefore, if they are not counted towards a particular candidate, they should not be factored into the overall counting and percentages.
·      The respondents argued that the basis for the first petition is invalid as the Constitution does not directly say that rejected votes should not be included in the threshold percentage for the win.  HOWEVER, they do urge the Court to settle the issue as it will likely arise in future elections.

Voters’ Register
·      Petitioners argued that there can be no free and fair election is there is no credible register. The Voter Register provisional numbers, the numbers announced by the IEBC, and the numbers released upon the inspection of the machines were inconsistent (each number higher than the last).
·      The petitioners further argued that Kenyans have the right to vote but they must be registered to vote and that no provision under the law allows for non-biometric (referred to a “green-book” or the “primary reference book” hat was used in some constituencies) register and therefore, there is no valid reason for the numbers to be inconsistent.
·      The Respondents explained that under the Constitution the IEBC was to deploy appropriate technology in the performance of its function, including the Biometric Voter Register (BVR), however, the BVR was not mean to completely replace the manual system of registration, but was instead intended to add an additional layer of efficiency.
·      Further, the respondents urged that the voter registration is a critical tool for enforcing universal suffrage and the special register was a tool aimed to ensure no disenfranchisement of the citizens that had the right to vote.  For example, if someone is disabled and their fore-limbs are unavailable for capturing their biometrics or those whose fingerprints are scarred or lost impression such as the elderly or people who participate in physical labor.
·      The IEBC claimed that they were transparent as they issued press statements and provided notices on its website regarding information all aspects of the electoral process. Further, they stated they took robust measure to involve members of the public and the political parties in verifying the integrity and accuracy of the Voter Register. 
-   In fact, all political parties received a copy of the provisional register of voters in the form of a CD and all political parties agreed that in the event of failure of the electronic voter-identifying (EVID) device, the print out from the electronic register would be used in the election.

Electronic Support for the Electoral Process: Validity
·      Petitioners claim that all electronic processes adopted by the IEBC failed- primarily the transmission of results, and therefore did not meet the 2011 election regulation guidelines – Section 39 and regulation 82 of the 2012 general election regulations. Without electronic transmission, there was not basis for verification of the results as verification requires provisional results to be compared to final tallies and, therefore was susceptible to manipulation and corruption.
·      Petitioners claim that since the BVR malfunctioned- the procurement process was taken over by the Government and therefore led to the loss of independence. Since, they argue, the procurement process was illegal, the EVID kits were inevitably faulty and since they failed, “millions of voters” did not have their votes counted accurately.
·      Further, they argue that the consistent gap between the leading candidates is scientifically impossible if they were truly being randomly delayed.
·      Overall, the petitioners argued that the machines should have already had the bugs worked out- i.e. – have the ability to automatically subtract from the main register voters who has already voted.
·      The respondents argued that under the constitution, IEBC is only required to process, tally, and transmit the final results and no where does it explicitly say what means are to be used- electronically or manually. The IEBC suggests the technology was only to be used as an added layer to the process and was to be utilized as part of other numerous check and controls not as a complete replacement.
·      The respondents did acknowledge the technologies deployed experience challenges, but such challenges were not catastrophic and did not impact negatively on the outcome of the election. They have learned from the challenges and will provide a basis for strengthening the electoral process.
·      Analysis of Court- voting process most technical of claims- petitioners argue that the act of voting is the totality of the electoral process and therefore a weal link ensure total collapse and therefore the results are likely to be inaccurate. Respondents argue that the voting is the action of marking the ballot paper and the process before and after only ascertains the voter’s choice. The respondents cite cases from the Philippines to argue that even there was failure in the support of the process, the right to vote is not defeated.
·      Analysis of Court- Regulation 60 of the Elections regulation, 2012 reveal that voting may be done by marking the ballot paper OR electronically. Therefore, the voting system envision was to be manual. Polling stations in rural areas have “distant dream” of a reliable supply of electricity but voters still conduct their civil duty via paper ballots.

Vote Tallying: Reflect Voters’ Choice
·      Petitioners argued that the tallying exercise was seriously marred by irregularities. Specifically: material alteration of documents used in the tallying and verification exercise; inconsistent numbers between those registered and those tallied; exclusion of Presidential candidates’ agents and accredited observers from the National Tallying Center; overall inflation of votes for Kenyatta and deflation of votes for Odinga
·      Petitioners evidence- 26 polling stations where the number of valid votes casted exceeded the number of registered voters.
·      Argue that the respondents did not put in place measures to ensure the accuracy of vote-count, after the failure of the electronic results-transmission system.
·      Respondents: maintain the counting, tallying and transmission was efficient and lawful and they went well beyond the thresholds of the Elections Act by establishing an elaborate audit process. They stated they resolved many issues as they arose. The results and forms were verified by multiple officers. As for the National Tallying Center, the officers were allowed in the room, however, they came rowdy and threatening, and thereafter moved to a separate room.

Some Issues of Facts: THE COURT’S FINDINGS

·      On March 25th,  the court ordered scrutiny of all Forms 34 and 36, which were used in all 33,400 stations to gain a better sense of the electoral process and its integrity.  Aggregated results of Form 36 voters from 75 counties were missing. Forms 34 were missing in a handful of polling stations. They specifically cite 10.
·      The court also ordered a re-tallying of 22 poling stations. It was determined that 5 of the stations had discrepancies.  
·      The court also found that in some instances, the number of registered votes was not reflected in Forms 36. In other instances, there were two Forms 36, attributed to the same constituency and both were counted during the tallying process. Even after the register of voters was closed, there were instances where voters were still being registered. In several polling stations, the number of votes cast exceeded the registered voters as per Forms 34. The results from these polling stations should have been nullified but they were included in the tallying of results.
·      This evidence and data, as the court conducted it, now overrides the results expressly relied on by the petitioners and respondents.

·      The court stated that the respondents answered each of the discrepancies highlighted in the court’s report. 
  •   While there were some missing forms, it was not in bad faith, merely an oversight given the limited time-period the respondents hand to deliver the documents. For forms 36 that were provided twice, they were not included in the tallying process. In some instances the second form was merely used during correction of mistakes where then the first form would not be counted.
  •   In every instance where more votes cast than registered voters, the Green Book, which contains the manual register, was given to the court for scrutiny.
  •   As for the 22 polling stations, these were spread out through the country, giving no advantage to one specific candidate. While there are clerical errors, no foul play can be attributed.
Burden of proof vs. standard of proof: While it is conceivable that the law of elections can be infringed, especially through incompetence, malpractices or fraud attributable to the responsible agency, it behooves the person who thus alleges, to produce the necessary evidence in the first place – and thereafter, the evidential burden shifts, and keeps shifting.
    •  The lesson to be drawn from the several authorities is, (stated the court) that the Court should freely determine its standard of proof, on the basis of the principles of the Constitution, and of its concern to give fulfillment to the safeguarded electoral rights. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt.
Judicial Restraint: the facts and special circumstances of this case (86% turnout, no loss of life, peaceful) require restraint in the judicial approach. The institutions of democracy and constitutionalism requires a certain degree of public confidence which, for the judicial process, is a treasure, that can only be nurtured through restraint, where the electoral will has been made known.

  • Technology- (See page 86) The technological failure was the main argument of the petitioners. Technology is rarely perfect and those employing it must remain open to new technologies. 
    •   It is clear the failure of these systems primarily rose 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.
    • The acquisition process was marked by competing interests involving impropriety, or even criminality: and (THE COURT STATED) We recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.
  • Integrity of the election itself in regards to the technology, there was no other option but to revert back to the manual system.
    • The court noted from the evidence that the manual system, though it did serve as a vital fall-back position, has itself a major weakness which IEBC has a public duty to set right. The ultimate safeguard for the voter registration process, namely “the Green Book,” has data that is not backed-up, just in case of a fire, or other like calamity. (THE COURT STATED)We signal this as an urgent item of the agenda of the IEBC, and recommend appropriate redressive action.
Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process. This negates the Petitioner’s contention that, in the instant case, injustice, or illegality in the conduct of election would result, if IEBC did not consistently employ electronic technology. It follows that the Petitioner’s case, insofar as it attributes nullity to the Presidential election on grounds of failed technological devices, is not sustainable.

·      National Tally Center- the respondents admit that the officers were taken to a different room. The IEBC has an obligation to operate transparently without retreating from public visibility and without disengaging stakeholders of the electoral process. However, the values will operate only in conditions of good order. The Court concluded that the tallying was indeed conducted in accordance with the law, and the relocation of political party agents did not undermine the credibility of the tallying, nor provide a basis for annulling the outcome of the Presidential election.

·      Voter Register- The court found no mystery about the “Special Register” which was used throughout the country and diverse are. There is no proof that this register served any improper cause that favored any particular candidate. 

·      Rejected Votes- With regard to the marked ballot papers that fail to comply with the approved marking format. Article 138(4) of the 2010 Constitution states that the a candidate will be declared President if he receives half of “all the votes cast.” The wording indeed presents a problem of interpretation.  In the 1969 election, the world “valid” is included in the clause.

  •   This interpretation is significant to Kenyatta for the reason, as he believed, that if all the “rejected votes” were included in the computation of vote-tally percentages, then it would raise the Odinga’s towards the 50% mark, and lower his own tally to a figure below 50% – the direct effect being that the Court would have to order a run-off election between the two leading candidates.
  •   Petitioner in Petition No. 3 of 2013 had moved the Court not only to exclude the “rejected votes” in the Presidential-election tally, but to go further and, on that basis, order a re-calculation and re-tally of the votes properly attributable to each of the candidates. His hopes were that the Court would, in this way, reach a finding that Kenyatta’s percentage vote-tally was significantly above 50%. We have already held, however, that such a process of re-tallying of votes, re-computing and re- assignment of value, falls beyond the election-contest mandate of this Court, and is excluded by the “rule of remoteness”.
·      The Legislature, nor IEBC, had attached any significance to the possibility of differing meanings; which leads us to the conclusion that a ballot paper marked and inserted into the ballot-box, has consistently been perceived as a vote; thus, the ballot paper marked and inserted into the ballot-box will be a valid vote or a rejected vote, depending on the elector’s compliance with the applicable standards.
  •  Need to answer the question: why should such a vote, or ballot paper which is incapable of conferring upon any candidate a numerical advantage, be made the basis of computing percentage accumulations of votes, so as to ascertain that one or the other candidate attained the threshold of 50% + 1 – and so such a candidate should be declared the outright winner of the Presidential election, and there should be no run-off election?
  The court interpreted the Constitution in a manner that contributes to good governance.
  • Go back to the 1969 Constitution- refer only to valid votes cast, and does not include ballot papers, or votes, cast but are later rejected for non-compliance with the terms of the governing law and Regulations.
·      Possible reliefs- “fresh election”- Determined that if the Court finds the President-elect to be invalid, a “Fresh” election would only involve the candidates that participated in the original poll, rather than new nominations.

Determination of the Petitions

The court came 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. 
In summary, the evidence, in the court's opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such. 
The court, therefore, chose to disallow the Petition, and uphold the Presidential- election results as declared by IEBC on 9th March, 2013.

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