Thoughts on upcoming Kenyan Presidential elections

Thanks to my wonderful graduate assistant Shem Ngwira for helping me put together this piece. 

            As we await the August 8 elections in Kenya, one cannot rule out the possibility of violent elections as seen in the 2007 Uhuru Kenyatta and Raila Odinga faceoff. The International Criminal Court (ICC) charged Kenyatta with crimes against humanity, which were later dropped. In 2013, Kenya witnessed a closely contested yet peaceful election. Check out my recent article in Journal of Modern African Studies on hate speech in the Kenyan Election in 2013.  Hotly contested issues in the run up to this election include urban youth poverty, domestic terrorist attacks, corruption, and strengthening the rule of law just to mention a few. 

Perennial presidential candidate Raila Odinga alleges that the Independent Electoral and Boundaries Commission (IEBC) favors Kenyatta’s political party-- Jubilee -- and is not trustworthy. These suspicions led to violent clashes between Odinga’s Coalition for Reforms and Democracy (CORD) and the police in May 2016.  However, the IEBC Chair Issack Hassan mentioned to a parliamentary briefing that the electoral officials were willing to quit prior to elections. This was a result of opposition supporter’s exercising their right to protest hence creating pressure for the IEBC officials to make a public announcement on their electoral stance.

Independent Electoral and Boundaries Commission Chairman Wafula Chebukati in Naivasha on March 9, 2017. PHOTO | SULEIMAN MBATIAH | NATION MEDIA GROUP 

 The Jubilee Alliance has been accused of an attempt to buy politicians from the north of Kenya in a campaign to weaken the opposition’s stronghold. The opposition politicians argue that only ‘weak’ northern Members of Parliament will fall prey to the governing party’s beckoning to switch allegiance with the overall aim of reducing votes for Odinga. These suspicions come at a time when the Jubilee party intends to amass political support from small political parties by sponsoring them to pledge allegiance to Kenyatta instead of the opposition political parties.

The 2017 elections have already been marred by a recent server hacking attempt of the IEBC servers. Chairman Wafula Chebukati of IEBC addressed informed the National Assembly’s Legal Affairs Committee but identities of the suspected hackers were left anonymous and assured the public that the servers were protected and not easily penetrated. This may have created further distrust of the Kenyatta administration and simultaneously elevated Odinga’s platform as a social change agent to reform such systemic challenges.

This is only but a snapshot of the events occurring in Kenya and how these tie into the upcoming elections. The tension between Odinga and Kenyatta stemming back from the gruesome events of 2007 laid a foundation of mistrust and strategic sabotage campaigns from both camps. 

We hope to see successful free and fair elections such as seen in 2013, which were approved as such by Carter Center and European Union.  However, the elections and public dissatisfaction in poor performance of the Kenyatta administration in addressing security issues as well as use of police to conduct extra judicial killings of dissenting individuals may have unintentionally set up Odinga for better poll numbers.

Women and politics in Kenya

This story caught my attention. Kenyans do tend to be socially conservative. It is not the first time that women have been attacked for their dress. I think that one issue is this is a matter of men keeping women in their place. I also think Rachel Machua's analysis is more or less reasonable. I think the AP title is incendiary, and sometimes I wonder at the trivialization of African politics by the Western press. 

Apparently, several protesters gathered in downtown Nairobi on Monday to protest against the last video posted online that shows a mob of Kenyan men surrounding a woman who is - according to them - provocatively dressed, and stripping her naked. Rachel Machua considers the recent attacks as the result of socio-economic conditions, where lower-income men attack successful and well-dressed women. About 10 percent of the protesters were men, marching because they believe in equal rights in Kenya, a country where women play an active role in the society. Other men, however, believe that "wearing miniskirts is the devil's work", and that they don't want "Kenya's women to seduce them by wearing revealing clothing". ( Kenya women march for right to wear mini-skirts by Associated Press, The Washington Post, November 17, 2014.) 

Patrick Gathara makes some decent points in a recent article. The 2010 Constitution really expanded the rights of Kenyan women, but getting men to respect them is another. 

Gathara analyzes the demonstration which occurred in Nairobi in support of a woman who had her clothes had been stripped off by a group of men. He says the focus has been on the tension between women's rights and a societally prescribed morality, but not a lot has been said on "how it illustrates a residual fear among some Kenyans of the consequences of respecting individual liberties". In 2010, the country has issued a progressive constitution, but its implementation has revealed to be harder than expected. (Kenya's fear of liberty by Patrick Gathara, AlJazeera, November 20, 2014) 

Thanks to my wonderful GA, Paola Cavallari, for doing the research that helps me stay on top of things. 

I am sorry for my extended absence. My beloved sister, Wangeci Bowman, died last year around this time. It has been a rough year. She was an amazing woman with Kenyan roots. She would have cheered her sisters on in their protest for women's rights. 

WMB 

The Slap Heard Round the World

Rachel Shebesh, the Nairobi Women’s Representative, as in a Member of Parliament, as in a highly respected public official, was among council workers who stormed Governor Kidero's office on September 6, 2013, in a demonstration over the ongoing county employees strike. The Governor emerged from his office and was surprised to find Shebesh and an estimated 30 people. There is a general consensus on these facts in regards to the incident termed by one newsite as “the slap heard across the nation” (http://allafrica.com/).

Video footage depicts a heated exchange between Kidero and Shebesh, followed quickly by a now famous slap. Shebesh can be heard sputtering “You have slapped me? You have slapped me?” as she is being led away by aides.

This is where the general consensus ends, with contrasting opinions heating up social media. Contradictory statements from the Governor’s office have caused yet more confusion. Kidero’s initial response denied slapping anyone, "I was in my office but I don't remember or have any recollection of slapping anyone. All I know is that a group of people about 30-40 tried to force themselves into my office led by an Honourable Member of Parliament,” said Kidero.

The honorable mayor later recanted this statement, claiming instead that Shebesh provoked the incident by assaulting him. While the Kenya Police Medical Examination report corroborates his account of soreness to the groin, the video does not depict any evidence Shebesh attacking him, leading to yet more confusion. Both Shebesh and Kidero have filed police reports.

All in all, this exchange has irrevocably impacted the images of both parties. Shebesh, no stranger to conflict, has been defamed further, with individuals expressing sentiments that “she had it coming,” or focusing on her approach. The Nairobi county assembly heard a motion calling for the impeachment of Governor Kidero, a decision that has currently been tabled. Several civil and women’s groups have condemned the incident and his behavior.

While the details of the incident remain clouded and controversial, the fact remains that both Kidero and Shebesh are publically elected officials in offices that demand a level of decorum and respect. So, why is Shebesh making a ruckus, and why is Kidero behaving like a violent criminal, or a batterer?

S.N.L Kenya has developed a music track labeled “Slap Them Like Kidero,” further solidifying the issue in social media. Slap them Like Kidero This entire incident has had widely felt implications, both for Kenyan politics, and for the greater discourse on gender.

What is my take? I always tell my five year old and three year old that it is not right to slap, punch, or hit anyone (some few exceptions apply). I do NOT believe that Kidero should have slapped his colleague, whether male or female. The video indicates to me that the slap was not prefaced by a squeeze or any assault on Kidero. Shebesh could have demonstrated more decorum in her visit to Kidero’s office, but two wrongs do not make a right. Following as it does on the Sonko imbroglio, I think that it is fair to use this moment to focus on the mis-treatment of women in Kenya. Dr. Kidero, did you receive your doctorate at the school of violence against women?

On a lighter note, this post made me laugh! Did Kidero Allegedly Slap Shebesh, or Did He Certainly Do It? 

Water Shortages and Blackouts

One thing that makes living in Kenya quite difficult is that simple things do not work.

I live in a middle class neighborhood in Nairobi called Magiwa Estate. At one point this summer I experienced a water shortage that went on for a week. We also had a four day blackout.

Now, it is possible that the water shortage actually went on for more than one week. We have a very large water tank in front of the house that acts as a reserve. Therefore, it is fairly hard to tell at what exact moment the water ran out.

I have often asked myself what is worse: no water or no electricity. Sigh. It is hard to tell. In my view no water is worse. No water means cooking is difficult, washing is hard, bathing is impossible.

But the question here is why are we having these crises? Is there actually not enough water in Nairobi? If it were the dry season, perhaps, but this is the cold season and we have had rain. Is our reservoir empty? What is the rationale behind the water stoppage? No rationing scheme has been announced. Is there an infrastructure problem?

Kenyans need to start asking KPLC and Nairobi Water what exactly they are doing. In this new government, wananchi need to demand high quality services and demand that government does its job. Mr. Kidero, are you listening?

~WMB

Analog Kenya

This past weekend, I went upcountry to see one of my favorite relatives, my Uncle Githaiga. In Kenya, when people say they are going to the rural areas where their ancestral village is, people say they are "going upcountry." People may also say that they are going to "Gichage" or shags.

My upcountry is in Othaya. My mother was from a small village called Karema. That land is now in the  hands of a male cousin. When I go to shags, I go to a place called Kihome, near the Aberdare Forest. That is where my uncle lives, and one of my cousins on that side.

That area in Kenya used to be completely analog. But now, analog and digital realities exist side by side. My uncle's place now has electricity. You can plug things into the wall, and they get charged which keeps your cell phone running. Electricity only came in the past five years. There is no Internet in the house, which is somehow a welcome relief. There is a small TV, which has about three channels.

I remember that not so long ago there was no electricity there. My uncle, who is very scientifically minded, figured out how to run the TV off of a car battery in those days. Some might mistake him for a simple teacher turned farmer, but my uncle personally built a biogas mechanism which converts cow manure into cooking gas that is piped into the house and connected to the stove. He uses artificial insemination to breed his cows, and picks the seeds best suited to his region.

Even now that some more modern conveniences exist, the main activities are walking to the forest, walking to the river, milking the cows, and picking tea. Conversation is a means of communication still very much used. As we stood in front of the store, an  mzee even older than my uncle spoke to my uncle about getting reparations for my uncle's time in detention during the Mau Mau period.

As my cousin Wacira and I walked through the town, we ran into a cousin of ours on Uncle Githaiga's side. We also ran into an mzee who taught Wacira how to drive. We shopped at Muiru butchery for our meat, because that is where my uncle shops. Carcasses of freshly slaughtered sides of beef and goat hung in the window. I told the butcher in Swahili that I wanted one half of a kilogram of beef, chopped small. He went to one of the sides, and carved off the appropriate piece, put it on his cutting board, and diced it for me.

We went to the Othaya green grocery market, and bought watermelons, kale, onions, tomatoes, and other foodstuffs, buying a few items from one vendor, and moving down the line, buying a few items from another vendor. The green grocery market was a project by the government, to bring the vendors inside into an orderly and clean place for selling their wares.

Othaya town has grown. The roads are now tarmacked throughout the town, an event which has occurred in the past five years. The town is much cleaner and more orderly with tarmacked roads. Even the road up to my uncle's house is mostly tarmacked. We rode up from town to my uncle's farm in a matatu, which had about four people in it.

The hills are green with tea, and coffee. The long rains came this year. The cows were grazing down by the small stream on the bottom of the property. We bought my uncle a hen and a rooster so he would not have to go to town to buy his eggs. The children played delightedly with the small mutt dog on the farm, who had no name. The children decided his name would be Scooby. They named the rooster Theodore, and the hen Sparkle.

It gets quite cold in the Aberdares. We had to bundle up in sweaters, and also we made a fire in the large fireplace in the sitting room. We drank hot tea, made with lots of fresh milk from the cows. For dinner, we made a chicken stew out of a chicken not as lucky as Sparkle. Our main seasonings were tomatoes, onions, green pepper and carrots. We ate the stew with brown chapati, an indian flatbread that has become a staple in Kenya. When it was time to sleep, we turned out all the lights, and bundled under layers of wool blankets to stay warm.

I am sure if I traveled to Turkana, that their place would be even more analog still. But there is no place that technology has not penetrated to some extent. Even in Turkana, you should expect to see a cell phone.  Somewhere in the town, there is likely at least one cyber cafe.

So how do we balance the beauty of our pastoral past with the rapid technological advances we experience? How do we integrate those issues? I like the perspective of Richard Sclove in his book Democracy and Technology. He suggests that we choose what technology we find appropriate. We should decide what technologies make our lives better. He argues that the general public should become involved in all phases of technological decision making. This model can work for Kenya, and for Africa too. We must not be hamstrung by nostalgia, nor should we blindly accept every technological change floated our way.

~WMB

The emerging face of Kenya's new Cabinet under Uhuru

Cabinet Balala, Ngilu, Ruto, Uhuru and a cute kid!

Since the March 4, 2013 election, significant changes in the government and how it will move forward have been in the spotlight. This last week Kenyatta’s government has taken a refreshingly unfamiliar look. The executive branch has reduced the cabinet from 44 ministers to 18, removed many figureheads from the previous power-sharing coalition, and added six women.

For those who appreciate technocrats, as I do, the media is calling it a “cabinet of professionals” because a majority of the members is from the business world (Economist, 2013). A few notable appointments include Amina Mohammed, a former UN official, to the foreign ministry, making her the first woman and first ethnic Somali to hold the post. Further, Raychelle Omamo, was appointed as Kenya’s first female defense minister (Economist, 2013).

The nominees will have to go through a vetting process before their job placement is official. They must answer a serious of questions, ranging from their sources of income and assets they own to charges form the courts, to secure confirmation by the National Assembly (This is the Kenyan equivalent of Senate confirmation). A questionnaire, submitted May 8, 2013, will kick off a 12-day process t determine whether those nominated will be confirmed for their positions (Ndegwa & Kimutai, 2013). The questionnaire will ask about their wealth, tax statuses, charges of corruption and any investigatory reports by Parliament, and their overall conduct, i.e. if they are linked to nepotism and gender bias.

Once the personal information is collected, public hearings with a summarized document on the suitability of each nominee will be available. Each of the nominees will appear before the Committee of Appointments and respond to any issues raised. A full report on the nominees will be available May 14^th in the House for a debate (Ndegwa & Kimutai, 2013).While Kenyatta’s cabinet is off to a good start, he still has two vacant positions, and there are concerns about a few appointees lack of experience, as well as a few old faces keeping their post. Charity Ngilu and Najib Balala remain even though they were both defeated in the election to the Senate, but Kenyatta included them because he had weak electoral support among their constituencies among Kamba and on the coast. Some observers fear Ngilu will block land reform (Economist, 2013), although in my view, there are plenty of politicians in Kenya with an interest in blocking land reform

Overall Kenyan citizens are looking forward and people are trying to support progress. For example, Kenyatta has vowed to protect media freedom. A range of politicians have offered their thoughts on how to fix major issues such as land ownership and ethnic divisions. Kenyatta promises to implement polices, programs, and initiatives that promote freedom of the media. “We expect the media to be at the forefront in educating, and informing Kenyans so that they hold the government to account from an informed point of view,” said Kenyatta. He also stressed that the media needs to uphold the highest standards of professionalism remaining free, fair, and objective (Leftie, 2013).

At a conference last week Raila Odinga suggested a way to end the country’s strong ethnic divisions: by switching from a Presidential to Parliamentary system. He explained that the Presidential system allows for an environment where communities pin their hopes on individuals based on their ethnicity and other policy issues and merit are not as big as a factor as they should be (Mutinga, 2013). Odinga stated that Kenya should focus on deepening reforms and strengthening institutions and switching to a parliamentary system, members from the smallest community has a chance to be president. An obvious critique of Odinga’s argument is that it would require a massive revision of the recently passed Kenyan Constitution (2010), which he was at the forefront of supporting. In my view, he should have made this argument about five years ago, not now. The horse has already left the barn.

Detailed Review of the Kenyan Supreme Court Decision

Wananchi

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 25^th 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.