Thoughts on Kenya’s Supreme Court opinion [Updated]

UPDATE–April 21: Read Kenyan lawyer Wachira Maina’s devastating critique of the Court’s opinion from the new East African. Or at the AfriCOG website here: “Verdict on Kenya’s presidential election petition: Five reasons the judgement fails the legal test”.

Here is the full Kenyan Supreme Court opinion released this morning. It’s 113 pages, but most all of it is taken up by accounts of some of the arguments presented by the various attorneys.

The Court elected to apply a standard of proof that would require “in the case of data specific electoral requirements” petitioner to prove irregularities “beyond reasonable doubt”.

Overall, the Supreme Court simply deferred to the IEBC to decide how to run the election. The Court justified its constrained rulings on allowing evidence on the basis of strict and very short deadlines which it asserts are justified by the importance of the Presidential election–thus leaving more detailed trials for the more than 180 other challenges filed so far in the Courts below for the other races.

The Court did not give rulings on the admission of evidence such as the videotapes presented by AfriCOG’s counsel of results being announced at the County level that differed substantially from those announced by the IEBC at its national tally centre in Nairobi, or otherwise grapple with any specifics of reported anomalies, including those among the sample of 22 polling stations that were to be re-tallied. Nor did it address the fact that its order to review all 33,000 Forms 34 and the Forms 36 from all constituencies was only slightly over half completed.

The Court declined to impose legal consequences in terms of the announced election outcome from the failure of the IEBC’s technology, but significantly did find that the main cause of the failures of the electronic voter identification system and the electronic results transmission system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”

See my previous post asking why we should trust the IEBC in light of the procurement integrity failings.

In closing, I have to note that the Court gave itself an extra two weeks after the deadline for its ruling to make any kind of explanation for that ruling. Then gave itself an additional two days. Similar flexibility in considering the facts of the case itself could have allowed it to do a more credible and substantive job of actually reviewing the election.

8 thoughts on “Thoughts on Kenya’s Supreme Court opinion [Updated]

  1. The Supreme Court has failed to match all the hype about its constitutionally guaranteed independence; Kenya is much more an Imperial Presidency than ever before despite all of the new levels of government and all of the rights enshrined in the 2010 Constitution of Kenya.
    On page 6 of the Standard On Sunday dated August 5, 2012 there is a picture of US Secretary of State Hillary Clinton with the Chief Justice. The headline reads: Clinton calls for free, fair elections.The article makes for depressing reading particularly in light of the amateur hour foreign policy of the Obama Administration.
    I suppose Clinton’s visit accomplished something somewhere…?

  2. Justice must be some sick form of irony. They throw out CORDs evidence, knowing very well that the strict timelines would inevitably lead to more evidence being brought in after the petition is lodged. The case is then eventually decided that CORD did not have enough evidence. (Ahem, the fact that they disallowed substantial pieces of evidence should have steered the judgement away from an evidence based case).

    In Kenya we have made it a habit to condone mediocrity, road contractors build roads without drainage, we move on, KPLC subject us to perpetual blackouts, we Move on, MPESA fails when you just took your sick mother to the hospital, we move on, Zuku, DSTV, The kenya police, etc. No one takes their job serious enough.. You go to a restaurant, you order for coffee, waiter brings you tea, we move on.. Eventually IEBC bungle a national election, instead of punishing their mediocrity and insisting on a better quality election.. we Move on.

    Who will fix our country? Who is this one man who will send IEBC back to the polls as many times as it takes until they get it right? It is possible to have perfect systems. It is possible for Mpesa to have 99.9% uptime. It is possible for KPLC to provide power even in the strongest of storms. But we have to be the first ones to say No to mediocrity. If a road is not built to expectations, the contractor should not be paid, even if they have to redo the road 10 times. We have to raise our standards.

    • I agree. To have improvements in elections, there is going to have to be follow up. Even though the Supreme Court wouldn’t do anything about the election itself, the Court clearly laid out one path for action: investigation and possible prosecution of the technology procurements.

      I think that what happens next on the procurement issues will matter a great deal. If this is just one more scandal exposed, then ignored, the IEBC is likely to get worse rather than better. If there is accountability, there can be space for improvement.

  3. Pingback: Washington event on “The Implications of the Kenyan Election” tomorrow; Mutunga’s judicial philosophy | AfriCommons Blog

  4. Pingback: AfriCOG’s Seema Shah asks in Foreign Policy: “Are U.S. election watchdogs enabling bad behavior in Kenya?” | AfriCommons Blog

  5. Pingback: It’s mid-May, do you know where your election results are? | AfriCommons Blog

  6. Pingback: USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers | AfriCommons Blog

  7. Pingback: Nigeria example shows U.S. and other donors should act now on Kenya IEBC technology procurement corruption | AfriCommons Blog

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