Summary Of Kenyan Supreme Court On Raila Odinga Vs Uhuru Kenyatta

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram:  Maraga, CJ. & P; Mwilu, DCJ & V-P;
Ibrahim, Ojwang, Wanjala, Njoki Ndungu  & Lenaola,
SCJJ)

PETITION NO. 1 OF 2017

– BETWEEN–

1. RAILA AMOLO ODINGA
2. STEPHEN KALONZO MUSYOKA
   …………..…………PETITIONERS

– AND–

1. INDEPENDENT ELECTORAL

      AND BOUNDARIES
COMMISSION

1. THE CHAIRPERSON OF THE INDEPENDENT
   …RESPONDENTS

      ELECTORAL AND BOUNDARIES
COMMISSION

1. H.E. UHURU MUIGAI KENYATTA

SUMMARISED DISSENTING OPINION OF OJWANG,
SCJ.

[1]    It is not necessary in
this summarized Judgment – which is to be followed by a fully
detailed and reasoned decision on an occasion already signalled by
the Chief Justice and President of the Court – to give the
comprehensive facts, submissions and legal principles bearing upon
the instant petition.

[2]  The important petition, which seeks
the annulment of Kenya’s Presidential election results emanating
from the General Elections of 8^th August, 2017, is
focussed on a limited number of contentions: (a) that the said
Presidential Election was not conducted in accordance with the
relevant principles of the Constitution;  (b) that the said
Presidential Election was compromised by certain illegalities and
irregularities;  (c) that, consequently, the said General
Election lacked integrity, and ought to be invalidated.

[3]  Whereas the substance of the case
founded on illegality and irregularity rests on the voting-results
electronic transmission process, there is substantial information
showing that, by law, the conduct of the election should have been
mainly manual, and only partially electronic. Hardly any conclusive
evidence has been adduced in this regard, which demonstrates such a
manifestation of irregularity as to justify the invalidation of the
election results.

[4]  As regards the invocation of the
Constitution as a basis for annulling the electoral process, only
general attributions of impropriety have been made, and
furthermore, without adherence to the prescription that the task of
interpreting the Constitution with finality, rests with no one but
the Courts – in this case, with this Supreme Court.

[5] Much of the evidence which the majority
opinion adopts, is largely unascertained, apart from standing in
contradiction to substantial, more credible evidence.

[6]  In such a marginal state of merits in
the case challenging the conduct of elections on 8^th
August, 2017, it is clear to me beyond peradventure, that there is
not an iota of merit in invalidating the clear expression of the
Kenyan people’s democratic will, which was recorded on
8^th August, 2017.

[7]   The procedural law for assuring
the integrity of elections is abundantly set out in the Elections
Act, 2011 (Act No. 11 of 2011), and in the Electoral Code of
Conduct; and the relevant provisions were conscientiously applied
by the Independent Electoral and Boundaries Commission, which fully
provided for the role of international and local observers, as well
as agents, in the conduct of the Presidential Election.  The
resulting electoral process had all the vital features of merit, as
all the observers publicly acknowledge.

[8] To disregard such outstanding features of
merit in the just-concluded elections, is to overlook the most
basic democratic principles which safeguard the electors’
entitlement to choose their public office-holders.

[9]   In summarized form, I hereby
record, without equivocation, my dissent from the Judgment given by
the numerical majority of the Supreme Court Bench.  For my
part, I would dismiss in its entirety the petition which
came up before us, as it was devoid of requisite supporting
evidence, just as it did not rest upon the pillars of the
Constitution, the ordinary law, or the pertinent elements inherent
in the configuration of a democratic election.

[10]   In accordance with the terms
of Section 26(2) of the Supreme Court Act, 2011 (Act No. 7 of
2011), I hereby reserve the detailed, reasoned edition of my
opinion, to be delivered within the next 21 days.

DATE and
DELIVERED at NAIROBI this
1^st day of September, 2017.

………………………………………………

J.B. OJWANG

JUSTICE OF THE SUPREME
COURT

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT
NAIROBI

(Coram:  Maraga, CJ. & P; Mwilu, DCJ & V-P;
Ibrahim, Ojwang, Wanjala, Njoki Ndungu  & Lenaola,
SCJJ)

PETITION NO. 1 OF 2017

– BETWEEN–

1. RAILA AMOLO ODINGA
2. STEPHEN KALONZO MUSYOKA
   …………..…………PETITIONERS

– AND–

1. INDEPENDENT ELECTORAL

      AND BOUNDARIES
COMMISSION

1. THE CHAIRPERSON OF THE INDEPENDENT
   …RESPONDENTS

      ELECTORAL AND BOUNDARIES
COMMISSION

1. H.E. UHURU MUIGAI KENYATTA

SUMMARISED DISSENTING OPINION OF OJWANG,
SCJ.

[1]    It is not necessary in
this summarized Judgment – which is to be followed by a fully
detailed and reasoned decision on an occasion already signalled by
the Chief Justice and President of the Court – to give the
comprehensive facts, submissions and legal principles bearing upon
the instant petition.

[2]  The important petition, which seeks
the annulment of Kenya’s Presidential election results emanating
from the General Elections of 8^th August, 2017, is
focussed on a limited number of contentions: (a) that the said
Presidential Election was not conducted in accordance with the
relevant principles of the Constitution;  (b) that the said
Presidential Election was compromised by certain illegalities and
irregularities;  (c) that, consequently, the said General
Election lacked integrity, and ought to be invalidated.

[3]  Whereas the substance of the case
founded on illegality and irregularity rests on the voting-results
electronic transmission process, there is substantial information
showing that, by law, the conduct of the election should have been
mainly manual, and only partially electronic. Hardly any conclusive
evidence has been adduced in this regard, which demonstrates such a
manifestation of irregularity as to justify the invalidation of the
election results.

[4]  As regards the invocation of the
Constitution as a basis for annulling the electoral process, only
general attributions of impropriety have been made, and
furthermore, without adherence to the prescription that the task of
interpreting the Constitution with finality, rests with no one but
the Courts – in this case, with this Supreme Court.

[5] Much of the evidence which the majority
opinion adopts, is largely unascertained, apart from standing in
contradiction to substantial, more credible evidence.

[6]  In such a marginal state of merits in
the case challenging the conduct of elections on 8^th
August, 2017, it is clear to me beyond peradventure, that there is
not an iota of merit in invalidating the clear expression of the
Kenyan people’s democratic will, which was recorded on
8^th August, 2017.

[7]   The procedural law for assuring
the integrity of elections is abundantly set out in the Elections
Act, 2011 (Act No. 11 of 2011), and in the Electoral Code of
Conduct; and the relevant provisions were conscientiously applied
by the Independent Electoral and Boundaries Commission, which fully
provided for the role of international and local observers, as well
as agents, in the conduct of the Presidential Election.  The
resulting electoral process had all the vital features of merit, as
all the observers publicly acknowledge.

[8] To disregard such outstanding features of
merit in the just-concluded elections, is to overlook the most
basic democratic principles which safeguard the electors’
entitlement to choose their public office-holders.

[9]   In summarized form, I hereby
record, without equivocation, my dissent from the Judgment given by
the numerical majority of the Supreme Court Bench.  For my
part, I would dismiss in its entirety the petition which
came up before us, as it was devoid of requisite supporting
evidence, just as it did not rest upon the pillars of the
Constitution, the ordinary law, or the pertinent elements inherent
in the configuration of a democratic election.

[10]   In accordance with the terms
of Section 26(2) of the Supreme Court Act, 2011 (Act No. 7 of
2011), I hereby reserve the detailed, reasoned edition of my
opinion, to be delivered within the next 21 days.

DATE and
DELIVERED at NAIROBI this
1^st day of September, 2017.

………………………………………………

J.B. OJWANG

JUSTICE OF THE SUPREME
COURT