On 8 August 2017, Kenya held her second General Election under the 2010 Constitution. This was the first time an elaborate regime of electoral laws had been used to introduced the Kenya Integrated Electoral Management System (KIEMS); a new devise used in biometric voter registration. KIEMS was also used on election day for voter identification as well as transmission of election results from polling stations simultaneously to the Constituency Tallying Centre (CTC) and the National Tallying Centre (NTC). The election was supervised by the Independent Electoral and Boundaries Commission (IEBC), the main electoral body in Kenya.

The Presidential election results saw, Uhuru Muigai Kenyatta, vying under the Jubilee Party ticket, declared as the winner with 8,203,290 votes and the 1st petitioner, Raila Amollo Odinga, vying under the National Super Alliance (NASA) Coalition of parties, the runner’s up with 6,762,224 votes. The latter filed a petition challenging the declared results, alleging that the elections were rife with irregularities as stipulated under Section 83 of the Elections Act, evidenced by transmission of unverified results. The irregularities alleged included, inter alia, that a majority of the results transmitted from the polling stations were unaccompanied by the scanned images of Form 34A, contrary to Sections 39 (1C), 44, and 44 (A) of the Elections Act and that subsequently, results were announced on the basis of Forms 34B before receiving all requisite Forms 34A. This argument was made compelling by IEBC’s admission that it declared the election results without having received results from 11,883 polling stations and 17 constituency tallying centres; and authentic Forms 34A from 5,015 polling stations representing up to 3.5 million votes.

Section 39(1C) of the Elections Act obligated the presiding officer at the polling station to, upon tallying the Presidential results at a polling station, fill form 34A and electronically transmit the same results to the CTC, where the returning officer would verify and tabulate results from the various polling stations and generate Form 34B on this basis. The same process would be followed by the IEBC chair in generating form 34C. However, IEBC, disregarding this chain process, declared results solely on the basis of Form 34B, without reference to Form 34A. This was in disregard of the Maina Kiai decision which stipulated that Form 34A was the basis of all verification as it was the primary document. The IEBC’s defence was that form 34A was not reflective of the results and could only be deemed as a statistic.

The petitioners also alleged that the prescribed forms either lacked or had different security features. This was despite the IEBC Director having deponed that it had, and out of caution, embedded into the prescribed forms security features that it made it impossible for anyone to tamper with them. However, scrutiny of the 290 Forms 34B revealed that: 56 of them had no security features, 31 did not bear the requisite serial numbers, 5 were not signed at all and 2 were only stamped by the returning officers but not signed. A further 32 Forms were not signed by agents. This made the Court question the accountability and transparency of the forms since these were errors that would have been cured had verification been done as per Section 83 of the Elections Act. It also brought into question the legitimacy of the forms, since without the security features, one would reasonably arrive at the conclusion that the forms were counterfeit.

In the face of these irregularities, the Court, guided by the decision in Gatirau Peter Munya v Dickson Mwenda Githinji and 2 Others was faced with the question as to whether such irregularities were of a magnitude capable of affecting the election result. This was because the Court was alive to the fact that not every infraction justifies the nullification of election results.

Convinced that the petitioners had met the standard of proof in election disputes as earlier set in M’nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 Others, which is an
‘intermediate standard of proof’; beyond the ordinary civil litigation standard of proof on a ‘balance of probabilities’, but below the criminal standard of ‘beyond reasonable doubt’, the Court, stated that the burden of proof had shifted to the Respondent. Absent a reasonable explanation for the glaring irregularities that were brought to the fore by evidence adduced by the Petitioner, the Court was not assuaged that the numbers were a product and expression of the free and sovereign will of the people. These, coupled with violations of the Constitution and the law, could not move the Court to lend confidence and legitimacy to the 2017 Presidential election results.

This is part of a special series the Oxford Human Rights Hub is running about the judgment of the Kenyan Supreme Court. You can see a list of the posts here.