The National Super Alliance filed their petition at the Supreme Court, after the Presidential results were announced by IEBC seeking to reverse President Uhuru Kenyatta’s victory in the August 8th election.
The seven-judge Bench under the leadership of Chief Justice David Maraga after hearing the parties, the Supreme Court found that the Independent Elections and Boundaries Commission (IEBC) simply did not deliver on basic democratic principles of transparency and rule of law that should guide any election. Therefore, nullified on Friday 1st September 2017, the re-election of a sitting president, ordering a new vote to be held within 60 days after finding that the outcome had been tainted by irregularities.
The ruling also offered a potent display of judicial independence on a continent where courts often come under intense pressure from political leaders, a historic ruling and a first in Africa.
The August 8th Election was conducted peacefully and was largely praised by international observers. However David Maraga, the court’s chief justice, declared the result “invalid, null and void” after siding with the opposition, which had argued that the vote had been electronically manipulated to assure a victory for President Uhuru Kenyatta who had been reelected by 54% of the votes, with a difference of about 1.4 million votes.
The Independent Electoral and Boundaries Commission, which was in charge of the elections, “failed, neglected, or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution,” the court said.
After the hearing, the Judges thereafter retreated to deliberate on the following issues for determination as crafted by the court:
(i) Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.
(ii) Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
(iii) If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?
(iv) What consequential orders, declarations and reliefs should this court grant, if any?
Having carefully considered the above issues, the Court with the majority decision of the Judges addressed the issues:
(i) As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon the Elections Act, the decision of the court is that the 1st Respondent (IEBC) failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution .
(ii) As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the 1st Respondent (IEBC) committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of the 3rd Respondent.
(iii) As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.
The Verdict was backed by four of the six Supreme Court judges of the opinion that the election commission had failed to conduct the presidential election in a manner consistent with the dictates of the constitution. Dissenting judges said that the Nasa opposition alliance – which had petitioned the Supreme Court – failed to prove claims that the polls had been rigged.
The Supreme Court, which has bolstered its independence in recent years but had still been viewed by many Kenyans as under government influence, and was facing pressure to set out arguments that would persuade people on either side, with the ruling, the court advocated for credibility, arguing that Kenyans deserved free, fair and credible – not just “good enough” – elections. Kenyans will have a second presidential election within the next 60 days.
Beyond establishing high democratic standards for elections in Kenya, this ruling was also about reaffirming judicial independence. “The greatness of a nation relies on its fidelity to the Constitution and adherence to the rule of law”, said Chief Justice Maraga, giving Kenya’s democracy a second chance.