REPUBLIC OF KENYA THE JUDICIARY REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI

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1 REPUBLIC OF KENYA THE JUDICIARY MEDIA BRIEF April 17, 2013 REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI PETITION NO 5 OF 2013 AS CONSOLIDATED WITH PETITION NO. 3 OF 2013 AND PETITION NO 4 OF 2013 Raila Odinga & 2 Others versus Independent Electoral and Boundaries Commission, Isaack Hassan, Uhuru Kenyatta and William Ruto (Coram: W.M Mutunga, Chief Justice and President of the Supreme Court; P.K Tunoi, M.K Ibrahim; J.B Ojwang; S.C Wanjala, N.S Ndungu, SCJJ.) MEDIA BRIEF Disclaimer This is a summary of the unanimous judgement of the Court The following explanatory note is provided to assist the media in reporting the Supreme Court's decision in Petition No 5 of 2013 as consolidated with Petition No. 3 of 2013 and Petition No 4 of 2013, (The Presidential Election Petitions) and the same is not binding on the Supreme Court of Kenya or any member of the Court. The public is advised to read the full judgement of the Court. 1

2 Introduction On 4 th March, 2013 the Presidential election was conducted by the Independent Electoral and Boundaries Commission (IEBC) throughout the country. On 9 th March, 2013 IEBC declared Uhuru Kenyatta and William Ruto as the President-elect and Deputy President-elect respectively, on the basis that they had satisfied the threshold prescribed under Article 138 (4) of the Constitution. The results declared showed that Uhuru Kenyatta obtained 6,173,433 votes out of a total of 12, 338,667 votes cast, which translated to a percentage vote of 50.07%. Subsequent to this declaration, three petitions were filed at the Supreme Court. The first of these was filed on 14 th March, 2013 by Moses Kiarie Kuria, Denis Njue Itumbi and Flowrence Jematiah Sergon against IEBC and its Chairman, Isaack Hassan, contesting the inclusion of rejected votes in the final tally which they alleged, had a distorting effect on the percentage votes won by each candidate. The second petition was filed on 16 th March, 2013 by Gladwell Wathoni Otieno and Zahid Rajan, contesting the manner in which the electoral process was conducted by IEBC, with regard to the Presidential election. The critical allegation in this petition was that the election was not conducted in accordance with the Constitution, the Elections Act, 2011 and the applicable Regulations. The third Petition was filed by Raila Odinga on 16 th March, 2013 against IEBC, Isaack Hassan, Uhuru Kenyatta and William Ruto, challenging the legality of IEBC s declaration of Uhuru Kenyatta and William Ruto as President-elect and Deputy President-elect respectively. Raila s petition was based on the allegation that the electoral process was so fundamentally flawed, that it was impossible to ascertain whether the presidential results declared were lawful. At a pre-trial conference held on 25 th March, 2013 and presided over by the Chief Justice, counsel for the parties agreed on four broad issues for determination in the three petitions: 2

3 a) whether Uhuru Kenyatta and William Ruto were validly elected and declared as the President-elect and Deputy President-elect of the Republic of Kenya; b) whether the Presidential election was conducted in a free, fair, transparent and credible manner in compliance with the Constitution and the law; c) whether the rejected votes ought to have been included in determining the final tally of votes in favour of each presidential-election candidate; d) in respect of the determination of issues (a), (b) and (c), what consequential declarations orders and reliefs ought the Court to grant? In a judgement delivered by the Court on 30 th March, 2013 the Court held, with regard to the first issue, that Uhuru Kenyatta and William Ruto had been validly elected and declared as President-elect and Deputy President-elect. With regard to the second issue, the Court held that the Presidential election had been conducted in a free, fair, transparent and credible manner in compliance with the Constitution and the law. With regard to the third issue, the Court held that rejected votes should not be taken into account in determining final vote-tallies. The Court, reserved its reasons for the decision, and on 16 th April, 2013 delivered these in its comprehensive Judgment. The Court resolved the contentious issues as follows: 1. Whether Uhuru Kenyatta and William Ruto were validly elected and declared as the President-elect and Deputy President-elect The 1 st Petitioner alleged that in some polling stations, the number of votes cast exceeded the total number of registered voters. The basis of these allegations was set out in the affidavit of Janet Ong'era. In response to these allegations, the Respondents stated that the 1 st petitioner s allegations were unsubstantiated, and 3

4 that they had taken all due action to ensure the electoral process was free, fair and transparent. On 25th March 2013, the Court ordered a re-tallying of the Presidential votes in 22 polling stations, using Forms 34, 36, and the Principal Register, as these stations had featured in the Petitioner's grievance. The sole purpose was to enable the Court to gain realistic impressions of the mode of conduct of the elections. It was found that 5 out of the 22 polling stations had discrepancies with respect to the numbers of votes cast, as reflected in Form 34 and Form 36. The Court also ordered the scrutiny of all Forms 34 and Forms 36 which were used in the country's 33,400 polling stations, so as: (i) to better understand the details of the electoral process; and (ii) to gain impressions on the integrity of the process. However, within the time available, only 18,000 polling stations were scrutinised. Forms 34 were missing in several polling stations, and Forms 36 were missing in respect of 75 constituencies. The 1 st and 2 nd Petitioners argued in support of the re-tallied results, on the following grounds: that the fact of missing Forms 34 supported their allegations that Isaack Ahmed Hassan and IEBC did not verify the Presidential election results as required by law, and should not have announced the Presidential election results, without accounting for all the electoral areas; that the results from the re-tallying ought to have replaced the results announced by IEBC; that there was duplicity of Forms 36 which were counted during the tallying by IEBC; that there was voter registration even after the voter register was closed; and that, in some polling stations, the number of votes cast exceeded the number of registered voters. All the Respondents opposed the re-tally results on the following grounds: that the respondents had responded to all the discrepancies in their response; that, despite the missing Forms 34, all the Forms 34 were given to the Court voluntarily, and those missing were not held back due to bad faith, but only due to the limited time-frames availed; that duplicate Forms 34 and Forms 36 were not used in 4

5 tallying; that, in all the instances where the votes cast exceeded the registered voters, the Green Book which contains the manual register was availed to the Court for the scrutiny; and that the Court was called upon to guard against a disenfranchising of registered voters, by the mere presence of insignificant numbers of extra voters on the register. The Court found that there were, indeed, discrepancies in the voter registers for some of the polling stations, save that these were not so substantial as to affect the credibility of the electoral process. No credible evidence was adduced to show that such discrepancies were premeditated and introduced by the 1 st Respondent, for the purpose of giving an advantage to any particular candidate. 2. Whether the Presidential election was conducted in a free, fair, transparent and credible manner in compliance with the Constitution and the law In considering the question whether the Register of Voters was in conformity with the Constitution and the law, the Court declined to make orders or grant reliefs which would occasion conflicts between its jurisdiction and that of other Courts especially as regards other sets of election which proceeded on the basis of the same Voter Register. The 1 st and 2 nd Petitioners cases turned on the validity or invalidity of the Principal Register of Voters. In light of the provisions of the Constitution and the evidence presented, the Court held that the Principal Register of Voters is not a single document, but is a combination of several parts prepared to cater for a diverse group of electors. The number of parts of a register and the diversity of electors for whom it is prepared, is dictated by law. Although counsel for the 1 st Petitioner urged that the Green Book was not provided for in the law, and that it undermined the credibility and legality of the voter-registration process, the Court found that it was used by the IEBC only to 5

6 originate the primary register of voters, which evolved into a Provisional Register, and then a Final Principal Register. The Court found that the voter registration process was essentially transparent, accurate, and verifiable. Further, the voter register had served to facilitate the conduct of elections that were, in substance, as free and fair as they could be. The Court, while noting the existence of irregularities in the data and informationcapture during the registration process, held these to have been not so substantial as to affect the credibility of the electoral process. The 1st and 2nd Petitioners contended that there were instances in which the vote-tallying operation inflated the 3 rd Respondent s votes, while deflating the 1 st Petitioner s. What was offered as proof of this assertion was only the apprehension that the initial electronic vote-transmission had maintained a suspect, steady differential between the two sets of tallies and that this suggested manipulation and impropriety on the part of IEBC. The 1 st Petitioner sought to introduce, belatedly, during the submissions, certain information suggesting mismatches between the contents of Forms 34 and 36 used at the National Tallying Centre. Hardly any matter of significance came before the Court such as would alter the thrust of the overall evidence, and the submissions on law; and the Court held that no challenge to the tallying process had been made such as to lead to an order of annulment. The Court, cognisant of the Petitioners' claim with regard to the failure of technology, noted that electoral technology is rarely perfect, and those employing it must remain open to the coming of new and improved technologies. There was evidence that the EVID and RTS technologies were used in the electoral process at the beginning but later stalled and crashed. From the evidence, the failure of the technology was occasioned by misunderstandings and squabbles among IEBC members during the procurement process. This then occasioned failure to assess the integrity of the technologies used in the elections in good time. The Court was of the opinion that it was likely that the acquisition process was marked by competing 6

7 interests involving impropriety, or even criminality. In this event, the Court recommended that the matter of procurement be entrusted to the relevant authorities for further investigation and possible prosecution of suspects. The Court recognised that upon failure of the technology, IEBC had no choice but to revert to the manual electoral system. The Court noted that the manual system itself has major weaknesses which the IEBC has a public duty to address. The 'Green-Book' and its data is not securely backed-up to serve as a foolproof, ultimate safeguard for voter-registration. The Court therefore recommended that the IEBC takes appropriate redressive actions on this issue urgently. The fact that the law gives IEBC the discretion to employ technology in the conduct of its mandate, and that technology is undependable and cannot yet be considered a permanent or irreversible foundation for reliability, negated the petitioners' claim that injustice, or illegality arose because IEBC did not consistently employ electronic technology in the conduct of elections. 3. Whether the rejected votes ought to have been included in determining the final tally of votes in favour of each Presidential- election candidate The 3rd Petitioner moved the Court to exclude the rejected votes from the Presidential-election tally, and order a re-calculation and re-tally of the votes properly attributable to each of the candidates. Several Petitioners submitted that rejected votes are marked ballot papers that fail to comply with the approved marking format, or vote-casting standards. The Court held that the process of retallying of votes, re-computing and re-assignment of value, falls beyond its electioncontest mandate, and was excluded by the rule of remoteness. The Respondents averred that they acted in good faith, and in accordance with the provisions of the Constitution, in factoring the rejected votes in the calculation of threshold-percentages in the Presidential election vote-tally. They did accept that 7

8 there is an uncertainty as to the effect of the expression all votes cast, as used in the Constitution, and called upon the Court to provide a guiding interpretation. The 3rd Respondent specifically stated that if an expansive meaning was adopted for all the votes cast, then he would be the loser, and the Petitioner would gain. The Court held that there is no provision in Statute, or Regulations defining rejected votes, though there are definitions of rejected ballot papers, spoilt ballot papers, and disputed votes. Spoilt ballot papers are those which are not placed in the ballot box, but are cancelled and replaced where necessary, by the presiding officer at the polling station. Rejected ballot papers are those which, although placed in the ballot-box, are subsequently declared invalid, on account of factors stated in the election regulations. The Court held that a ballot paper marked and inserted into the ballot-box has been perceived as a vote, and consequently, a ballot paper marked and inserted into the ballot box will be a valid vote or a rejected vote. A rejected vote is invalid, and will not count in the vote-tally of any candidate. 4. Guiding Principles The Court noted that the case in issue was of the greatest importance for the following reasons: (i) it was the first landmark case to set in motion the gains of Kenya's progressive Constitution; (ii) since the promulgation of the Constitution, the non-majoritarian elements such as the Judiciary and the Independent Commissions had assumed their special roles, but those established by popular elections such as the Legislature and the Executive were yet to be established under the Constitution of Kenya, 2010; (iii) the electoral process was set to usher in a transition from a little-regulated Executive to one that is subject to constitutional limits; 8

9 (iv) the Supreme Court, established by the Constitution, is mandated to protect the supremacy of the Constitution and the sovereignty of the Kenyan people. The Court has a maiden opportunity to consider the vital question as to the integrity of the Presidential election, and the Constitutional limits within which a lawful Executive arm of Government ought to operate; (v) the instant matter was the first test of the scope available to the Supreme Court to administer law and justice in relation to a matter of the expression of popular will, in the election of a President. One of the issues considered by the Court is proof in election cases. The Court held that, on the basis of the principles of the Constitution, especially as regards the safeguarding of electoral rights, it ought to freely determine its standard of proof. A petitioner is under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. In principle, the standard of proof should be above the balance of probability, though not as high as beyond- reasonable-doubt. However, where criminal charges linked to an election are alleged, the standard of proof remains beyond reasonable doubt. The Court also held that in the case of data-specific electoral requirements, for an outright win in the Presidential election, the party bearing the legal burden of proof must discharge it beyond any reasonable doubt. The Court took a notable position, in response to the invitation by counsel that it ought to be guided by restraint, in resolving election disputes. The Court held that an insightful judicial approach was essential in resolving this matter; and in this regard it would be guided by its fidelity to the Constitution, and to such other laws as objectively reflect the intent and purpose of the Constitution. 9