In Summary
  • Chiloba argues that right from the start the Supreme Court had gone out of their way to find fault with how they had conducted the election.
  • In their ruling, Chief Justice Maraga, his deputy Mwilu, and Justices Isaac Lenaola and Smokin Wanjala ruled that the commission had failed to follow the law.

On September 1, 2017, in a 4-2 majority decision, the Supreme Court annulled President Uhuru Kenyatta’s election, terming it “invalid, null and void” and sending shock waves across the country.

But for the Independent Electoral and Boundaries Commission (IEBC), it has now emerged, their case had been lost even before the six-judge bench retreated to write their judgment on August 29 following a two-day marathon hearing.

“Based on our own observation, you had a feeling that something wrong was going to happen; from the questions the judges were asking, you got a sense that it was a lost cause,” IEBC chief executive Ezra Chiloba told the Nation in an interview.

Mr Chiloba spoke just a few days before the IEBC embarked on a post-election evaluation forum in Nairobi, which ended Thursday, and where the conduct of the annulled poll, and the repeat election in October, were analysed by experts, the civil society, and election observers.

RESULTS SCRUTINISED

In reflecting on the landmark ruling — the first in Africa, and only the fourth in the world — Mr Chiloba argues that right from the start the Supreme Court had gone out of their way to find fault with how they had conducted the election.

“When you are presiding over such a dispute, you must give the benefit of doubt to the institutions that people have set for themselves — and given delegated power — that they will do the right thing. In this case, we saw an approach of ‘IEBC has done something wrong, let us go and find out what,'" Mr Chiloba said.

Mr Chiloba also revisited the results of the scrutiny ordered by the Supreme Court, and which sampled 4,299 Forms 34As from five counties — an analysis Mr Chiloba told investigators in October last year were in ‘sharp contrast’ with what the commission had presented.

Out of those, the scrutiny showed that 481 of them were carbon copies but signed with another 157 not signed, 269 original copies not signed, with 26 other originals signed, and scanned.

VALIDATION OF REPORT

A total of 58 were photocopies of which 46 had not been signed, and 11 had no watermark security feature.

“We believe that the scrutiny of forms led by the registrar of the Supreme Court did not reflect the true nature of the forms as delivered to the court by the commission,” he said of the scrutiny that the petitioners termed as the smoking gun, and which played a huge part in the annulment of the poll.

Mr Chiloba was referring to the requirement in law for the commission to present to the court certified copies of all results declaration forms four days after the filing of a petition, and which he believes the court did not counter-check against what was said in the report.

“We were not given an opportunity to validate the report, or sign off on it when it was handed over to lawyers, who were given 10 minutes to argue on it before court.”

The veracity of the report on the scrutiny of the forms is a matter also broached by Justice Njoki Ndung’u in her dissenting opinion in which she faulted her colleagues who, she said, had not counter-checked the details in the scrutiny report against the forms submitted to the court even before the case started.

ILLEGAL PROCESS

Justice Ndung’u checked the forms against the report and, in a detailed report, documented that all the forms in dispute had the security features the scrutiny report had said were lacking.

“By subjecting the integrity of the election to considerations of design, that are neither statutory nor regulatory, the majority has not only threatened the people’s belief in the electoral system, it has overburdened and in fact, negated the electorate‘s right to franchise,” Justice Ndung’u said in her dissenting judgment.

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