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.