Chief Justice Martha Koome read the judgement on behalf of her colleagues Deputy Chief Justice Philomena Mwilu and justices Njoki Ndung’u, Isaac Lenaola, Smokin Wanjala, Mohammed Ibrahim and William Ouko.
The court found the petition was to some extent based on falsehoods by some lawyers and falsified online logs by a witness. The judges expressed displeasure that the false evidence was contained in sworn affidavits.
“Affidavits filed in court must only deal with facts, swearing to falsehoods is a criminal offence,” CJ Koome said as she referred to affidavits by lawyers Celestine Opiyo, Arnold Ochieng Oginga and former corruption czar John Githongo.
“The contents of John Githongo’s affidavit, which may contain forgeries, are dismissed for not meeting evidential threshold,” said the CJ, referring to the document that purported to demonstrate claims of hacking of poll systems.
In the affidavit, Mr Githongo had narrated to court of a young man, who claimed he was part of a 56-member team of hackers employed to manipulate Forms 34A that captured results from polling stations that the Independent Electoral and Boundaries Commission (IEBC) was posting on its public portal.
Not even the video played in court by one of Mr Odinga’s lawyers, Julie Soweto, demonstrating alleged interference of the election systems by a Venezuelan, Jose Carmago, could impress the judges. The inadequacies in the petition plus the oral arguments made by his lawyers prompted the top court also to use strong words while dismissing the case. The judgment discredited the evidence presented by the petitioners as “hot air, outright forgeries, red herring, wild goose chase and unproven hypotheses”.
Although the judges acknowledged the divisions in the IEBC that saw four commissioners reject the results announced by chairman Wafula Chebukati, they noted the feud appeared to have emerged at the tail end of the electoral process and could not therefore warrant nullification of the presidential results.
Tried to reach out to judges
Deputy Chief Justice Philomena Mwilu revealed that some lawyers had tried to reach out to the judges after they had retreated to write the judgement. She did not name the lawyers.
“A lot of you called us but we just could not pick your calls and I hope you understand,” she said.
Aware that the country was divided, the judge said “the truth is that some six million Kenyans will not be happy today. But that is the nature of the work.”
Outside court, the lawyers representing Dr Ruto and IEBC were jubilant. They held hands together in a circle, said a short prayer at the court’s parking area and then attacked the petitions as “substandard and fictitious”.
“It’s one thing to have allegations in court, but don’t over-dramatise things. Do it like a lawyer, plead what you know is right and is well-founded in law. That should be one of the lessons that this contest has shown,” said Dr Ruto’s lead lawyer Fred Ngatia, a senior counsel.
“Lawyers should be more calculating and have theories that they can back with evidence. Politicians ought to now accept defeat; you don’t need to come to the Supreme Court,” he added.
Do not agree with decision
Mr Odinga’s lead lawyer, James Orengo, said that, although they accepted the court’s decision, they do not agree with it.
“It is unrealistic that we lost on all the grounds. It was a little ideological, they were looking for things to destroy our case with but similarly not taking sufficient time to look at what happened on the other side,” Mr Orengo said. Flanked by his colleagues Philip Murgor and Julie Soweto, Mr Orengo insisted that his team had a watertight case.
He added that part of the evidence produced in court dealing with the criminal aspect of the alleged election illegalities and irregularities was procured from the Directorate of Criminal Investigations (DCI), a police department.
“It is incredible that we lost on all the points. In more than several of those cases, we had overwhelming evidence. The Supreme Court registrar’s report was completely silent on the failure to open the IEBC servers. The servers were not opened. The involvement of the Venezuelans for half a month before the elections and up to August 16 was not offered… The servers have all the answers,” Mr Murgor said.
On Mr Odinga’s claim that there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions, the court found there was no evidence to support the allegation.
Mr Odinga had alleged that there was systematic ballot stuffing in certain counties mainly in the Rift valley and parts of Central Kenya where some 33,208 votes were cast for President only without corresponding votes for the other seats.
Mr Chebukati acknowledged the difference in the votes cast between the seats but attributed the variance to diaspora and prison polling centres. The two constituencies do not participate for the other elective seats. The court heard that the difference complained of was insignificant.
The commission also attributed the difference to rejected votes and stray votes.
“The well-established principle that the person who asserts a fact must prove it, casts the burden upon the petitioner to demonstrate that there were instances of ballot stuffing of such a magnitude to justify nullification of the presidential election,” the court said.
“Ballot stuffing, which is an illegal addition of extra ballot papers, is type of an electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document has been presented by the petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in this claim is based on unproved hypothesis. That since the votes of President is higher than the other seats, then that there must be fraud,” the court stated.
Complained much later
On the question of whether the IEBC carried out the verification, tallying, and declaration of results in accordance with Article 138 (3) (c) and 138 (10) of the Constitution, the court said the four commissioners had been taking part in the exercise and only complained much later.
The judges said the late protests by commissioners Juliana Cherera (vice-chairperson), Francis Wanderi, Irene Masit and Justus Nyang’aya did not justify nullification of the presidential election.
“Are we to nullify an election on basis of a last-minute board rapture, whose details remain scanty and contradictory between the chairperson and some of his members? In absence of violation of the Constitution and the electoral laws, how can we upset election in which people participated without hindrance as they made their political choice pursuant to Article 38 of the constitution?” the judges posed.
“To do this would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of IEBC. This we cannot do. Clearly, the current dysfunctionality at the commission impugns the state of its corporate governance but does not affect the conduct of the 2022 election,” the court held.
50pc plus one vote
On whether President-elect Ruto attained 50 per cent plus one vote of all the votes cast in accordance with Article 138 (4) of the Constitution, the court found that the calculations done by IEBC were correct.
CJ Koome said the judges were not persuaded by the petitioners and the Law Society of Kenya (LSK) to review the court’s position on exclusion of rejected ballots in computing total votes cast.
“The premise of the petitioner’s computation of percentages was a press briefing from [Mr] Chebukati. The assertion by the sixth petitioner (Okiya Omtatah) was negated by evidence submitted by IEBC in court. The court finds that no evidence was submitted to show that William Ruto did not attain the 50 per cent plus one vote requirement,” said the CJ. The judges ruled there were no irregularities and illegalities of such magnitude as to affect the final result of the presidential election.
Regarding whether the technology deployed by IEBC for the conduct of the General Election met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results, the court was not persuaded that the technology failed the requisite tests.
“Upon considering the pleadings, submissions, and the ICT scrutiny and inspection, tallying and recount report by the registrar, who fully examined the IEBC’s Result Transmission System (RTS), the court was not persuaded that the technology deployed by the IEBC failed the standard of Article 86 (a) of the Constitution on integrity, verifiability, security and transparency,” CJ Koome said.
Uploading and transmission
On claims that there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC public portal, the court said the petitioners failed to table any credible evidence.
On whether there was a difference between Forms 34A uploaded in the IEBC public portal and the Forms 34A received physically at the National Tallying Centre and Forms 34A issued to the agents at the polling stations, the court also cited lack of evidence.
“The court found that there was no difference between the Forms 34A uploaded on the IEBC public portal with those received at the National Tallying Centre, and those issued to candidates’ agents at the polling stations,” the CJ said.
Mr Odinga had alleged that Forms 34A from polling stations were intercepted and doctored before uploading at the public portal and results amended.
The court also threw out Mr Odinga’s claim that the postponement of gubernatorial elections in Kakamega and Mombasa Counties resulted in voter suppression to his detriment. He said the areas affected by the postponement were his strongholds.
But the court found that by virtue of Section 55B of the Elections Act 2011, IEBC chairperson had the requisite power to postpone elections in the constituencies, counties and wards in question. In addition, the court found that there was no proof that the postponement resulted in voter suppression to the detriment of Mr Odinga.