As the seven Supreme Court judges walk back to court to read their verdict on the consolidated presidential election petitions today, it will have far reaching implications on the top political class and the country’s elections agency, whichever way they rule .
According to the Supreme Court Act and the Supreme Court (Presidential Election Petition) Rules, 2017, upon conclusion of the hearing of a presidential petition the court may make an order dismissing the petition or invalidating the declaration made by the electoral commission under Article 138(5) of the Constitution.
The court may also make an order declaring the election of the president-elect valid or invalid.
If it finds that the president-elect was validly elected, it paves way for the swearing-in, while invalidation means a repeat of the presidential election. The fresh poll takes place within 60 days after the judgment.
In addition, the court also makes an order on payment of costs of the petition and based on the previous petitions the financial bill runs to hundreds of millions of shillings.
The court can also make any other order as it may deem fit and just in the circumstances.
For instance, in the case before court, major aspersions were cast against the conduct of the members of the Independent Electoral and Boundaries Commission (IEBC) led by their chairperson, Mr Wafula Chebukati.
The court is likely to pronounce itself on the allegations and is expected to issue a clarification on the IEBC commissioners in the verification and tallying of presidential votes.
The chairperson was accused of exercising veto powers and excluding the other commissioners, allegations that he denied and said he acted as provided in the election laws.
Like the 2017 judgment (CJ David Maraga decision), which enhanced transparency in the conduct of the elections and guided the IEBC on the elections process, the 2022 judgment under stewardship of CJ Martha Koome is also likely to shape conduct of the future elections.
The upcoming judgment may be the beginning of a major shake-up in the political landscape.
Among the issues that Kenyans will be observing is whether the Supreme Court will deliver a summary judgment then retreat again to come up with a detailed substantive verdict like was the case in 2013 and 2017.
Another observation is on whether the judges will come up with a singular unanimous judgment or each judge will write his/her own judgment and read it in open court.
Pundits argue that multiple judges delivering a single judgment, unanimous or not, denies people benefit of getting the intelligence resource possessed by each of the judges on rationale of a verdict, writing skills and on research.
Being multiple judges tasked to decide the presidential election petitions, there is likelihood of a disagreement on the outcome of the case considering that it involves various issues and a framework of at least nine questions.
In such circumstances, there will be two or more decisions — a majority decision, dissenting or concurring decisions.
The judges vote on their findings on each issue in the election petition and the majority decision becomes the court’s verdict, which is read out by the Chief Justice.
During the oral hearings, there were regular bar-bench engagements.
Petitioners led by Azimio la Umoja coalition leader Raila Odinga had their day in court on Wednesday, the respondents including President-elect William Ruto and IEBC fired back on Thursday and Friday was set aside for rejoinders by petitioners and deliberations on the scrutiny ordered by the court.
At the heart of the court proceedings were various questions asked by the judges to parties. The questions and the arguments made by the parties may give a snippet of the likely outcome of the case.
For instance, on the petitioners’ prayer for fresh elections, removal of Mr Chebukati from office and disbandment of the elections body, Justice Mohammed Ibrahim asked how that is possible since the Constitution does not contemplate such a lacuna.
Another question by Chief Justice Martha Koome on application of technology, was a demonstration on how the electronic devices used to transmit results from polling station converted images from Jpeg to PDF.
While the petitioners alleged that the conversion was done by interception of the election results forms by unknown third parties, IEBC explained that the devices used in the elections had an application that converts images into PDF format.
One of the key issues that the judges will be answering is on the election technology deployed by IEBC to conduct the 2022 elections, and whether it met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
The petitioners claimed the elections system was not secure and that it was hacked by Venezuelans, who “also determined the president-elect”.
They alleged that the election result forms used to tally results were doctored and that Dr Ruto did not attain the Constitutional threshold of 50 per cent plus one vote.
The commission’s lawyer Mahat Somane also discredited the petitions, describing the petitioners’ calculations as an old litigation approach in numbers for “shock and awe”.
Using a powerpoint demonstration, he sifted through the figures and explained the voter turnout and claims of voter suppression.
He also took the court through anomalies stated in various affidavits of the petitioners and overall results indicated in various forms and the efficiency of the technology deployed by IEBC.
On claims of results being doctored by third parties in the system, IEBC dismissed the allegations and also implored the court to use a fall back plan of checking the original Forms 34A used to declare results at the respective 46,229 polling stations.
The figures in the forms were endorsed by agents of various parties and election candidates.
The court will also determine whether postponement of Mombasa, Kakamega elections led to voter turnout suppression in the presidential election.
The petitioners alleged that the postponement of gubernatorial elections in Kakamega and Mombasa counties on the eve of the general elections was a deliberate plan to suppress voter turnout and that Mr Odinga was disadvantaged by the decision.
However, the postponement also affected parliamentary races in Rongai, Kacheliba, Kitui Rural and Pokot South Constituencies as well as MCA polls in Kwa Njenga and Nyaki West wards.
In response, IEBC and Dr Ruto argued that there was no voter suppression in the said electoral areas. Using comparative data, Mr Mahat said the turnout in the affected areas was similar or within the range of the neighbouring areas.
Another key issue is on the actual total turnout of voters. The petitioners said the turnout was indeterminate and that the final figure was a moving target. They alleged that the number of voters who turned out to vote remains indeterminate and that the turnout was over 65.4 per cent.
But IEBC said the actual final turn out was 64.767 per cent and that the petitioners were relying on a figure announced by the chairperson in a press briefing, but which was later corrected.
The apex court will also determine if there was an unexplained difference between the number of votes garnered by the four presidential candidates (Ruto, Odinga, Waihiga Mwaure and George Wajackoyah) and those received by the candidates contesting for the other five elective positions (47 governors, senators and woman representatives, Members of National Assembly in the 290 constituencies and 1,450 MCA slots).
The petitioners alleged that there was a big difference which they believe is a product of fraud.
But IEBC said the only difference between the presidential and gubernatorial votes was 900 votes and not the thousands that Mr Odinga and the other petitioners alleged.
The commission also attributed the difference to prisoners and diaspora votes. The two constituencies only vote for the president. It said in other cases, stray ballots and differences in rejected votes for various electoral seats contributed to the differences.
The judges are also expected to determine whether the exercise of verification, tallying and declaration of presidential results at the National Tallying Centre at the Bomas of Kenya complied with articles 138(3c) and 138(10) of the constitution.
Still on that, the judges will determine whether the alleged exclusions affected the figures garnered by each presidential candidate.
Petitioners believe the presidential election results announced by Mr Chebukati are invalid on grounds of non-involvement of four commissioners.
But Dr Ruto argued that the process complied with the law throughout until near conclusion when the four IEBC members walked out of the tallying centre to disown the results at a city hotel.
His lawyer Prof Kithure Kindiki said the walkout and the chaos witnessed at the National Tallying Centre were part of an orchestrated plan to install an unconstitutional government.
He accused the four commissioners of attempting to subvert the will of the voters.
Prof Kindiki alleged that senior State officers were behind the invasion of the dais in a bid to deny Dr Ruto victory in the presidential contest. He termed the action of the four as treason.
IEBC, for its part, said all commissioners were involved in the process. They even read the results from the constituencies in turns at the National Tallying Centre, IEBC said.
It added that the four commissioners had a scheme to alter the final results and engineer a runoff by claiming none of the candidates achieved the 50 per cent plus one legal threshold of the votes cast.
Still on the issue of 50 per cent plus one threshold, the court will determine whether Dr Ruto met the constitutional threshold that requires a winning presidential candidate to garner more than half of the total votes cast and at least 25 per cent in 24 counties.
Casting doubts on the figures, Mr Odinga alleged that Dr Ruto fell short of the legal threshold by at least 441 votes.
In his calculations, the 50 per cent threshold should be 7,176,582 votes with Dr Ruto having declared the winner with 7,176,141 votes, thus creating a shortfall of 441 votes.
He said he got 48.85 per cent and that Dr Ruto got 49.997 per cent instead of the 50.4 per cent announced by the IEBC.
But IEBC stated that Dr Ruto attained threshold to be declared president-elect.
On alleged illegalities in the election process, the Supreme Court is expected to determine if there were illegalities and irregularities in the presidential race and whether they were grave enough to affect the final election outcome.
Petitioners alleged that the final tally is inaccurate and unverifiable due to alleged alteration of results and tampering of the system by a Venezuelan, Jose Camargo, an agent of the Greek company that supplied IEBC with election technology. But IEBC denied the election was tampered with by foreigners.