Supreme Court Judgement On The Nine Issues By Petitioners
The Supreme Court on Monday upheld the election of Kenya Kwanza presidential candidate William Ruto as president-elect as announced by the Independent Electoral and Boundaries Commission(IEBC).
According to the seven judges, there was no credible evidence to support the nine issues the court was to look into.
This is how they responded to the issues;
1. Whether there was a difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and the Forms 34A issued to agents at the Polling Stations;
The Court ordered scrutiny of the Forms 34A from the 41 polling station and it ascertained that there were no significant differences captured between the Forms 34A uploaded on the Public Portal and the physical Forms 34A delivered to Bomas that would have affected the overall outcome of the Presidential Election.
2. Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results.
The court in a statement stated that upon considering all the pleadings, submissions and the ICT scrutiny and Inspection, tallying and recount Report which fully examined the IEBC’s Result Transmission System (RTS), they were not persuaded by the allegation that the technology deployed by IEBC failed the standard of Article 86(a) of the P.E.P No. E005 of 2022 (Consolidated with) P.E.P No. E001-E004 and E007-E008 OF 2022age 10 of 36Constitution on integrity, verifiability, security and transparency.
3. Whether there was interference with the uploading and transmission of Forms 34A from the Polling Stations to the IEBC Public Portal;
Court Response: No credible evidence was presented to support the allegation that Forms 34A presented to agents differed from those uploaded to the Public Portal.
Report by the Registrar of this Court confirmed the authenticity of the original forms in the sampled polling stations.
The affidavits of Celestine Anyango Opiyo and Arnold Ochieng Oginga, while containing sensational information, were not credible as the Registrar’s Report confirmed that all the Forms 34A attached to those affidavits and purportedly given to them by agents at select P.E.P No. E005 of 2022 (Consolidated with) P.E.P No. E001-E004 and E007-E008 OF 2022age 15 of 36 polling stations were significantly different from the originals, certified copies and those on the Public Portal.
4. Whether the postponement of Gubernatorial Elections in Kakamega and Mombasa counties, Parliamentary P.E.P No. E005 of 2022 (Consolidated with) P.E.P No. E001-E004 and E007-E008 OF 2022age 6 of 36 elections in Kitui Rural, Kacheliba, Rongai and Pokot South Constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency resulted in voter suppression to the detriment of the Petitioners in Petition no. E005 of 2022;
Court: "We are satisfied that the postponement was occasioned by a genuine mistake, which in our view, could have been avoided had the members and staff of the IEBC been more diligent when they went to inspect the templates in Athens, Greece where the printing of ballot papers was undertaken".
5. Whether there were unexplainable discrepancies between the votes cast for Presidential candidates and other elective positions;
Court; "Ballot stuffing, which is the illegal addition of extra ballots, is a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document has been presented by the 1st petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in this claim is based on unproven hypothesis, that since the number of votes cast for President is higher than those for the other positions then, P.E.P No. E005 of 2022 (Consolidated with) P.E.P No. E001-E004 and E007-E008 OF 2022age 21 of 36 without more, it must follow that there was fraud. Fraud is a serious criminal offence and must be proved beyond reasonable doubt . Under Section 5 (n) of the Election Offences Act, it is an offence for a person to vote more than once in any election.
6. Whether the IEBC carried out the verification, tallying, and declaration of results in accordance with Article 138 (3) (c) and 138 (10) of the Constitution.
Court: Having considered all parties’ submissions, we find that, pursuant to Article 138 (3) (c) of the Constitution, the power to verify and tally Presidential Election results as received at the National Tallying Centre, vests not in the Chairperson of IEBC, but in the Commission itself.
The latter carries out this exercise through its secretariat staff, technical personnel, and any other persons hired for that purpose under the oversight and supervision of the Chairperson, and other members of the Commission.
7. Whether the declared President-elect attained 50%+1 of all the votes cast in accordance with Article 138(4) of the Constitution.
Court: considered the differing formulas and threshold arguments presented by various parties to this Petition.
While the 1st, 2nd and 3rd petitioners raised pertinent questions connected to this issue, we shall address them together with those of the 6th petitioner who has addressed and focused on the issue as
specifically framed in detail.
Further, the Court asserted that rejected ballot papers do not constitute a vote cast to be included in calculating the final tally in favour of a Presidential candidate. We are not persuaded by the amicus curiae’s (Law Society of Kenya) brief who attempted to persuade us to reconsider our position on this finding. We reiterate that rejected votes cannot be taken into account when calculating whether a Presidential candidate attained 50% +1 of votes cast in accordance with Article 138 (4) of the Constitution.
8. Whether there were irregularities and illegalities of such magnitude as to affect the final result of the Presidential Election.
Court: according to the constitution the court on solving disputed presidential elections it can nullify or validate the election, hence it Court cannot assume jurisdiction that goes beyond the purview of Articles 163 (3) and 140 of the Constitution.
9. What reliefs and orders can the Court grant/issue?
Court: "The recommendations by the amici curiae will improve the electoral landscape and aid in the development of the democracy".
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