➥ CASE SUMMARY OF:
Raila Amolo Odinga & Ors. v Independent Electoral and Boundaries Commission & Ors. (Presidential Petition no. 1 OF 2017)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Kenyan presidential election.
➥ CASE FACT/HISTORY
On 8th August, 2017, Kenya held her second general election under the Constitution 2010 and Kenyans from all walks of life trooped to 40,883 polling stations across the country to exercise their rights to free, fair and regular elections under Article 38(2) of the Constitution. That date is significant because it was the first time that a general election was being held pursuant to Article 101(1) of the Constitution which decrees the holding of general elections every five years on the second Tuesday of August in the fifth year.
The number of registered votes in the country was 19, 646, 673 and on 11th August 2017, the 2nd respondent, exercising his mandate under Article 138(10) of the Constitution, as the Returning Officer of the Presidential election, declared the 3rd respondent, Uhuru Muigai Kenyatta, the winner of the election with 8,203,290 votes and the 1st petitioner, Raila Amollo Odinga, the runner’s up with 6,762,224 votes. On 18 th August, 2017, Raila Amolo Odinga and Stephen Kalonzo Musyoka, who were the presidential and deputy presidential candidates respectively of the National Super Alliance (NASA) Coalition of parties, running on an Orange Democratic Movement (ODM) party ticket and WIPER Democratic Movement ticket respectively, filed this petition challenging the declared result of that Presidential election (the election). The petitioners in the petition aver that the Independent Electoral and Boundaries Commission (IEBC), conducted the election so badly that it failed to comply with the governing principles established under Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution of Kenya and the Elections Act (No. 24 of 2011).
➥ ISSUE(S)
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?
➥ RESOLUTION(S) OF ISSUES
[SUCCEEDED]
↪️ ISSUE 1 & 2: IN PETITIONER’S FAVOUR.
[THE FAILURE TO TRANSMIT RESULT BY THE INDEPENDENT NATIONAL ELECTORAL COMMISSION CANNOT BE ACCEPTED
‘With tremendous respect, we cannot accept IEBC’s said explanation. Failure to access or catch 3G and/or 4G network, in our humble view, is not a failure of technology. Surely IEBC’s ICT officials must have known that there are some areas where network is weak or totally lacking and should have made provision for alternative transmission. It cannot have dawned on IEBC’s ICT officials, two days to the elections, that it could not access network in some areas.’
‘In stating so, we note that under Regulations 21, 22, and 23 of the Elections (Technology) Regulations 2017, IEBC was required to engage a consortium of telecommunication network service providers and publish the network coverage at least 45 days prior to the elections. In that regard, we take judicial notice of the fact that, in one of its press briefings preceding the elections, IEBC assured the country that it had carefully considered every conceivable eventuality regarding the issue of the electronic transmission of the presidential election results, and categorically stated that technology was not going to fail them. IEBC indeed affirmed that it had engaged three internet service providers to deal with any network challenges. We cannot therefore accept IEBC’s explanation of alleged failure of technology in the transmission of the presidential election results. The so-called failure of transmission was in our view a clear violation of the law.’
‘In any case, in his affidavit, Mr. Muhati, IEBC’s ICT director, as stated, averred that in polling stations off the range of 3G and 4G network coverage, presiding officers (POs) were instructed to move to points with network coverage or to the Constituency Tallying Centres in order to electronically transmit results. It is important to note that once the POs, who were off the network range, scanned the results into Forms 34A and typed the text messages of the same into the KIEMS and pressed the “SUBMIT” key, a process IEBC told the country was irreversible, all that remained was for the POs to move to vantage points where 3G or 4G network would be picked and the details could automatically be transmitted in seconds.’
‘As is also clear from the information posted in IEBC’s website, among the 11,0000 polling stations IEBC claimed were off the 3G and 4G range are in Bomet; Bungoma; Busia; Homa Bay; Kajiado; Kericho; Kiambu; Kisumu; Kisii; Kirinyaga; Nyeri; Siaya; and Vihiga Counties. It is common knowledge that most parts of those Counties have fairly good road network infrastructure. Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the POs to travel to vantage points from where they would electronically transmit the results. That they failed to do that is in our view, an inexcusable contravention of Section 39(1C) of the Elections Act. [273] We further note that at the time of declaration of results, IEBC publicly admitted that it had not received results from 11,883 polling stations and 17 constituency tallying centres; that in its letter of 15 th August 2017, IEBC also admitted that it had not received authentic Forms 34A from 5,015 polling stations representing upto 3.5 million votes.’
THE EVIDENTIAL PROOF SHIFTED TO THE COMMISSION TO SHOW IT COMPLIED WITH THE LAW
‘In these circumstances, bearing in mind that IEBC had the custody of the record of elections, the burden of proof shifted to it to prove that it had complied with the law in the conduct of the presidential election especially on the transmission of the presidential election results and it failed to discharge that burden.’
THE COMMISSION DID NOT ALLOW ACCESS TO HIS LOGS AS ORDERED BY THE COURT
‘It is clear from the above that IEBC in particular failed to allow access to two critical areas of their servers: its logs which would have proved or disproved the petitioners’ claim of hacking into the system and altering the presidential election results and its servers with Forms 34A and 34B electronically transmitted from polling stations and CTCs. It should never be lost sight of the fact that these are the Forms that Section 39(1C) specifically required to be scanned and electronically transmitted to the CTCs and the NTC. In other words, our Order of scrutiny was a golden opportunity for IEBC to place before Court evidence to debunk the petitioners’ said claims. If IEBC had nothing to hide, even before the Order was made, it would have itself readily provided access to its ICT logs and servers to disprove the petitioners’ claims. But what did IEBC do with it? It contumaciously disobeyed the Order in the critical areas. Where does this leave us? It is trite law that failure to comply with a lawful demand, leave alone a specific Court Order, leaves the Court with no option but to draw an adverse inference against the party refusing to comply. 113 In this case, IEBC’s contumacious disobedience of this Court’s Order of 28th August, 2017 in critical areas leaves us with no option but to accept the petitioners’ claims that either IEBC’s IT system was infiltrated and compromised and the data therein interfered with or IEBC’s officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data. The petitioners also made claims that some Forms 34A supplied to them did not relate to any of the existing gazetted polling station/tallying centres; that while 15,558,038 people voted for the presidential candidates, 15,098,646 voted for gubernatorial candidates and 15,008,818 voted for Members of Parliament (MPs) raising questions as to the validity of the extra votes in the presidential election. No satisfactory answer was given to the latter issue and we must also hold the 1 st respondent responsible for that unexplained yet important issue.’
THE COMMISSION DID NOT VERIFY THE RESULT BEFORE DECLARING THEM
‘In the presidential election of 8th August, 2017 however, the picture that emerges, is that things did not follow this elaborate, but clear constitutional and legislative road map. It has been established that at the time the 2nd respondent declared the final results for the election of the President on 11th August, 2017, not all results as tabulated in Forms 34A, had been electronically and simultaneously transmitted from the polling stations, to the National Tallying Centres. The 2nd respondent cannot therefore be said to have verified the results before declaring them. The said verification could only have been possible if, before declaring the results, the 2nd respondent had checked the aggregated tallies in Forms 34B against the scanned Forms 34A as transmitted in accordance with Section 39 (1C) of the Elections Act. Given the fact that all Forms 34 B were generated from the aggregates of Forms 34A, there can be no logical explanation as to why, in tallying the Forms 34B into the Form 34C, this primary document (Form 34A), was completely disregarded. Even if one were to argue, which at any at rate, is not the case here, that the verification was done against the original Forms 34A from all the polling stations, which had been manually ferried to the tallying centre, this would still beg the question as to where the scanned forms were, and why the manually transmitted ones, arrived faster than the electronic ones … The failure by the 1 st respondent to verify the results, in consultation with the 2nd respondent, before the latter declared them, therefore went against the expectation of Article 138(3)(c) of the Constitution, just as the failure to electronically and simultaneously transmit the results from all the polling stations to the National Tallying Centre, violated the provisions of Section 39 (1C) of the Elections Act. These violations of the Constitution and the law, call into serious doubt as to whether the said election can be said to have been a free expression of the will of the people as contemplated by Article 38 of the Constitution.’]
.
.
↪️ ISSUE 3: IN PETITIONER’S FAVOUR.
[THE ELECTION WAS NOT VALIDLY CONDUCTED
‘In their submissions, counsel for the respondents and the 2nd interested party urged us not to annul the election on the basis of minor inadvertent errors. We entirely agree. We have already categorically acknowledged the fact that no election is perfect. Even the law recognizes this reality. But we find it difficult to categorize these violations of the law as “minor inadvertent errors”. IEBC behaved as though the provisions of Sections 39, 44 and 44A did not exist. IEBC behaved as though the provisions of Article 88 (5) of the Constitution requiring it to “…exercise its powers and perform its functions in accordance with the Constitution and the national legislation” did not exist. IEBC failed to observe the mandatory provisions of Article 86 of the Constitution requiring it to conduct the elections in a simple, accurate, verifiable, secure, accountable and transparent manner. Where is transparency or verifiability when IEBC, contrary to Articles 35 and 47 of the Constitution, worse still, in contumacious disobedience of this Court’s Order, refuses to open its servers and logs for inspection?’]
.
.
↪️ ISSUE 4: IN PETITIONER’S FAVOUR.
[‘By a majority of four (with J. B. Ojwang and N. S. Ndungu, SCJJ dissenting), we make the following final Orders:
(i) A declaration is hereby issued that the Presidential Election held on 8th August, 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;
(ii) A declaration is hereby issued that the irregularities and illegalities in the Presidential election of 8th August, 2017 were substantial and significant that they affected the integrity of the election, the results notwithstanding.
(iii) A declaration is hereby issued that the 3 rd respondent was not validly declared as the President elect and that the declaration is invalid, null and void;
(iv) An Order is hereby issued directing the 1 st respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination of 1 st September 2017 under Article 140(3) of the Constitution.’]
.
.
.
✓ DECISION:
‘Having therefore carefully considered all the affidavit evidence, and submissions of counsel for all the parties, we find and hold, that, the petitioners herein have discharged the legal burden of proving that the 2 nd respondent, declared the final results for the election of the president, before the 1 st respondent had received all the results from Forms 34A from all the 40,883 polling stations contrary to the Constitution and the applicable electoral law. We also find and hold that, the 2 nd respondent, declared, the said results solely, on the basis of Forms 34B, some of which were of dubious authenticity. We further find that the 1 st respondent in disregard of the provisions of Section 39 (1C), of the Elections Act, either failed, or neglected to electronically transmit, in the prescribed form, the tabulated results of an election of the president, from many polling stations to the National Tallying Centre.’
‘For the above reasons, we find that the 2017 presidential election was not conducted in accordance with the principles laid down in the Constitution and the written law on elections in that it was, inter alia, neither transparent nor verifiable. On that ground alone, and on the basis of the interpretation we have given to Section 83 of the Elections Act, we have no choice but to nullify it.’
➥ FURTHER DICTA:
⦿ WHAT IS BURDEN OF PROOF
The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one or the other of the parties either to establish a case or to establish the facts upon a particular issue. Black’s Law Dictionary defines the concept as “[a] party’s duty to prove a disputed assertion or charge….[and] includes both the burden of persuasion and the burden of production.”
⦿ IN ELECTION MATTERS, THE BURDEN OF PROOF IS ON THE PETITIONER
The law places the common law principle of onus probandi on the person who asserts a fact to prove it. Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya, legislates this principle in the words: “Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” In election disputes, as was stated by the Canadian Supreme Court in the case of Opitz v. Wrzesnewskyj, an applicant who seeks to annul an election bears the legal burden of proof throughout. This Court reiterated that position in the 2013 Raila Odinga case, thus: “[195] There is, apparently, a common thread in…comparative jurisprudence on burden of proof in election cases…that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner…. [196] This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.” Thus a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds 49 “to the satisfaction of the court.”
⦿ STANDARD OF PROOF FOR ELECTION PETITION IS HIGHER THAN THAT OF BALANCE OF PROBABILITIES
We maintain that, in electoral disputes, the standard of proof remains higher than the balance of probabilities but lower than beyond reasonable doubt and where allegations of criminal or quasi criminal nature are made, it is proof beyond reasonable doubt. Consequently, we dismiss the petitioners’ submissions that the Court should reconsider the now established legal principle, as discussed above, and find that the standard of proof in election petitions is on a balance of probabilities. We recognize that some have criticized this higher standard of proof as unreasonable, however, as we have stated, electoral disputes are not ordinary civil proceedings hence reference to them as sui generis. It must be ascertainable, based on the evidence on record, that the allegations made are more probable to have occurred than not.
⦿ A BALLOT PAPER IS NOT AUTOMATICALLY A VOTE
A ballot paper is the instrument in which a voter records his choice, while a vote is the actual choice made by a voter. A ballot paper does not become a vote by merely being inserted into the ballot box, as it may later turn out to be rejected … A voter therefore is said to have cast his or her vote when the procedure under Regulation is followed. This means that, upon receipt of the ballot paper, the voter proceeds to mark correctly, indicating his exact choice of the candidate he wishes to vote for, and then inserts that marked ballot paper into the respective ballot box for the election concerned … Comparative jurisprudence from other jurisdictions, notably Australia; New Zealand; Canada; the United Kingdom; Ireland; the Netherlands; India and South Africa, also makes a clear distinction between a ballot paper and a vote. For instance, Section 123 of the Australian Electoral Act of 1992, formally distinguishes between a valid and an invalid vote. It states in subsection (4) thereof that “[i]f a ballot paper has effect to indicate a vote, it is a formal ballot paper.” And in subsection (5) it adds that “[i]f a ballot paper does not have effect to indicate a vote, it is an informal ballot paper.” That Act then goes on to provide that an informal ballot paper does not count. A ballot paper is therefore counted as a vote if it is filled in accordance with the set down procedure … In the US, the criterion for making the distinction between a ballot paper and a vote is the clear and discernible intention of the voter. This is manifest from the case of Brown v. Carr, cited with approval by the US Supreme Court in Bush v. Gore, in which the Supreme Court of Western Virginia stated that: “It is equally well settled that, in determining whether a ballot shall be counted, and, if so, for whom, depends on the intent of the voter, if his intention can be gleaned from the ballot being considered, or, in some special instances, from facts and circumstances surrounding the election. Courts decry any resort to technical rules in reaching a conclusion as to the intent of the voter, and in respect thereto follow a liberal policy, to the end that voters be not deprived of the exercise of their constitutional right of suffrage.” Adding that the investigation of the intent of the voter should be confined to the ballot itself, the court added: “Where the uncertainty as to the voter’s intention is such as to cause a reasonable and unprejudiced mind to doubt what the voter intended, the ballot should not be counted.” We can find nothing in the Constitutional Review Commission’s Report or in the Parliamentary Hansard Report giving the basis for the change from “valid votes cast” in Section 5(3)(f) of the old Constitution to “votes cast” in Article 138(4) of the current Constitution. As we have stated, comparative jurisprudence from New Zealand; Canada; the United Kingdom; Ireland; the Netherlands; India and South Africa shows that rejected votes count for nothing. In the circumstances, we cannot see how a rejected vote, a vote which is void, a vote that accords no advantage to any candidate, can be used in the computation of determining the threshold of 50% + 1. In our view, a purposive interpretation of Article 138(4) of the Constitution, in terms of Article 259 of the Constitution, leads to only one logical conclusion: that the phrase votes cast in Article 138(4) means valid votes. Consequently, we maintain this Court’s view in the 2013 Raila Odinga case and accordingly reject the petitioners’ invitation to reverse it.
⦿ TRIVIAL BREACHES CANNOT INVALIDATE AN ELECTION
Therefore, while we agree with the two Lord Justices in the Morgan v. Simpson case that the two limbs should be applied disjunctively, we would, on our part, not take Lord Stephenson’s route that even trivial breaches of the law should void an election. That is not realistic. It is a global truism that no conduct of any election can be perfect. We will also go a step further and add that even though the word “substantially” is not in our section, we would infer it in the words “if it appears” in that section. That expression in our view requires that, before vitiating it, the court should, looking at the conduct of the whole election, be satisfied that it substantially breached the principles in the Constitution, the Elections Act and other electoral law. To be voided under the first limb, the election should be what Lord Stephenson called “a sham or travesty of an election” or what Prof. Ekirikubinza refers to as “a spurious imitation of what elections should be … In other words, a petitioner who is able to prove that the conduct of the election in question substantially violated the principles laid down in our Constitution as well as other written law on elections, will on that ground alone, void an election. He will also be able to void an election if he is able to prove that although the election was conducted substantially in accordance with the principles laid down in our Constitution as well as other written law on elections, it was fraught with irregularities or illegalities that affected the result of the election.
⦿ ELECTION IS A PROCESS
✓ In Kanhiyalal Omar v. R.K. Trivedi & Others 103 and Union of India v. Association for Democratic Reforms & Another 104 , the Supreme Court of India, for example, stated that the word ‘election’ is used in a wide sense to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. These stages include voter registration; political party and candidate registration; the allocation of state resources and access to media; campaign activities; and the vote, count, tabulation and declaration of results.
✓ In the case of Karanja Kabage v. Joseph Kiuna Kariambegu Nganga & 2 Others where the High Court observed that: “an election is an elaborate process that begins with registration of voters, nomination of candidates to the actual electoral offices, voting or counting and tallying of votes and finally declaration of the winner by Gazettement. In determining the question of the validity of the election of a candidate, the court is bound to examine the entire process up to the declaration of results….The concept of free and fair elections is expressed not only on the voting day but throughout the election process….Any noncompliance with the law regulating these processes would affect the validity of the election of the Member of Parliament.”
⦿ ELECTION MUST REFLECT THE WILL OF THE PEOPLE
It is our view however, that elections, are all these things. None of the factors highlighted by the parties can be viewed in isolation. For by doing so, we run the risk of cannibalizing a sovereign process. Elections are the surest way through which the people express their sovereignty. Our Constitution is founded upon the immutable principle of the sovereign will of the people. The fact that, it is the people, and they alone, in whom all power resides; be it moral, political, or legal. And so they exercise such power, either directly, or through the representatives whom they democratically elect in free, fair, transparent, and credible elections. Therefore, whether it be about numbers, whether it be about laws, whether it be about processes, an election must at the end of the day, be a true reflection of the will of the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility, verifiability, accountability, accuracy and efficiency.
⦿ ILLEGALITIES VERSUS IRREGULARITIES
Illegalities refer to breach of the substance of specific law while irregularities denote violation of specific regulations and administrative arrangements put in place.
⦿ NOT EVERY IRREGULARITY WILL NULLIFY AN ELECTION
It is also against this background that we consider the impact of the irregularities that characterized the presidential election. At the outset, we must re-emphasize the fact that not every irregularity, not every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be any election in this Country, if not the world, that would withstand judicial scrutiny. The correct approach therefore, is for a court of law, to not only determine whether, the election was characterized by irregularities, but whether, those irregularities were of such a nature, or such a magnitude, as to have either affected the result of the election, or to have so negatively impacted the integrity of the election, that no reasonable tribunal would uphold it.
➥ LEAD JUDGEMENT DELIVERED BY:
Maraga, CJ & P, Mwilu, DCJ & V-P, Ojwang, Wanjala, Njoki and Lenaola, SCJJ.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Otiende Amollo.
⦿ FOR THE RESPONDENT(S)
Mr. Nyamodi.
Mr. Ahmednassir.
Mr. Wekesa.
Prof. Wainaina.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)