President Uhuru Kenyatta has poked holes in the Supreme Court full judgement, which was issued by the top court judges on Wednesday, September 20.
President Kenyatta raised myriad questions on how four out of six Supreme Court judges arrived at the decision of nullifying his victory in the August 8 presidential election, saying in the petition filed by his key opponent in the race for State House, Raila Odinga, no one raised an issue with the process of voting, counting and tallying of votes; neither did anyone contest the number of votes cast; and that no one questioned the over 8.2 million votes he (Uhuru) obtained; and that since he was exonerated from any irregularities or illegalities, then there was no reason to overturn his win.
The Head of State addressed the nation in a televised 16-minute speech on Thursday evening.
Read his full speech below.
“The Supreme Court of Kenya stated that due to time constraint, they had not perused several documents that had been filed, but they did promise to give a detailed judgement in 21 days.
“How a decision of that magnitude was made, without examination of some of the most crucial documents, is indeed incredibly startling.
“Kenyans waited patiently, with great anxiety and anticipation for reasons for the nullification of the presidential election. Yesterday, the Supreme Court delivered the reasons for the nullification of the presidential election in a historic and split decision that lasted for 12 straight hours.
“I take note that the decision confirmed the following: One: That voting, counting and tallying of the election results was done in accordance to the law.
“Two: That the number of votes cast, as announced by the IEBC, was never disputed.
“Three: That the number of votes I, as a candidate, obtained was not contested.
“And Four: That my Government and I were exonerated from any irregularities or illegalities.
“Fellow Kenyans, the presidential election results was not nullified on the assumption that there were irregularities in the election results Forms. It is now manifestly clear that despite the fact that the relevant Forms had already been deposited in Court by the IEBC, no proper scrutiny or verification ever took place, which would otherwise have brought the Court to the inescapable conclusion that the election results of the August 8 presidential election was indeed valid.
“As a consequence, I hold our steadfast position that the will of the people of Kenya was subverted by our Court. The Supreme Court owes Kenyans an explanation how such a monstrous injustice could have taken place. Not only did the judgement rob the Kenyan people of their democratic right as exercised on August 8, but it also now has the potential to plunge our country into judicial chaos. The effect and precedent set in that singular judgement by a bench of the Court says that a bench can nullify the decision of millions of Kenyans without due regard to evidence.
“This position is diametrically opposed to the sovereign rights our people have to elect leaders of their choice as is enshrined in our Constitution.
“Fellow Kenyans, as I have said before, I shall comply with the judgement.
“However, I state categorically that the Constitutional right of Kenyans to elect leaders of their choice is non-negotiable. At the heart of the dispute is a simple point of principle; the purpose of an election, in any democratic country, is to determine the will of the people in whom all sovereignty resides.
“Fellow Kenyans, the Court ruling of September 1, 2017 which was reiterated yesterday, the Court ordered the IEBC to conduct fresh election in strict conformity with our Constitution and the applicable election laws; and to do so within the 60 days that the Constitution allows.
“We all acknowledge that the people of Kenya now have another chance to be heard again.
“There shall; and must be an election within that constitutionally stipulated period.
“Cabinet this morning (September 21) approved the supplementary budget that shall be forwarded to the National Assembly on Tuesday next week, in which we set aside resources for the conduct of this fresh election. Thus, the IEBC, in keeping with its mandate, must without any further delay, undertake the fresh elections. Kenyans expect nothing more; and nothing less from them.
“Fellow Kenyans, the judgement has also created uncertainties and raised matters that require legislative attention. I have therefore requested the Parliament to expeditiously address itself to the issues raised in order to protect our country from any ambiguities; and or that may arise from this judgement.
“Fellow Kenyans, having revised the judicial precedent of electoral management in this country, we are left, as a people, with the following questions: One: Is the people’s choice in the ballot sufficient to elect leaders of their choice, as provided for in our Constitution, or does it in future require a qualitative endorsement by a judge?
“Two: Now that the Supreme Court has taken the narrow view that a presidential election can be overturned, without reference to numbers, what becomes of the Constitutional provisions that provide the presidential election, and for that matter, all elections, are determined in a democratic society such as Kenya by numbers?
“Three: It is now clear that had the Court verified documents and Forms in its position, supplied by the IEBC, – the so-called unstamped, unsigned, unserealised forms, upon which the presidential election was nullified, would have been proven to be falsified. What then happens to this judgement made on the basis of falsified documents?
“These, fellow Kenyans, are important questions that all of us, as a people, must address ourselves to in the fullness of time.
“I want at this moment to once again affirm and as a country we have a clear Constitutional path forward. I take this opportunity to assure Kenyans from all walks of life, as well as our regional and international partners, that our country remains secure and stable.
“We should, therefore, go with the business of building our nation. I have instructed all our security agencies to ensure that they remain firmly on the alert and focused on providing security to all Kenyans and their property, which is a cardinal Constitutional responsibility of any Government.
“To our 1.6 million children, who have worked hard in preparation for their upcoming final examinations, I wish to take this opportunity to assure you that arrangements are in place to ensure that your exams are not disrupted by this turn of events. I ask you all to remain focused on your exams; and we as parents, are praying and wishing you every success.
“Finally, I would like to state clearly that the Government will do everything, under the law, to facilitate the IEBC to conduct another free, fair and credible election in accordance with the ruling of the Supreme Court; an election that will once again enable the people of Kenya to exercise their democratic right of choice.
“Each one of us, especially we leaders, must ensure that, even as we enter this new competition, we have a responsibility to ensure that there is peace and stability that will deliver to all Kenyans the promise of shared prosperity that we as a people desire.”
FULL JUDGEMENT ON ODINGA’S PETITION
The Supreme Court of Kenya on Wednesday criticised the IEBC for failing to verify official results of last month’s presidential election before announcing them, but did not find any individual at the board responsible for the failings.
The court was offering a detailed ruling as to why it annulled the Aug. 8 election and ordered a fresh presidential vote within 60 days. The Sept. 1 decision was the first of its kind in Africa.
The election board had said President Uhuru Kenyatta won the contest by 1.4 million votes, but opposition leader Raila Odinga challenged the result in the Supreme Court. He says the previous two elections were also stolen from him.
Kenya is a key Western ally in a region often shaken by violence. Its status as a diplomatic, trade and security hub for East Africa means the court’s ruling and preparation for the fresh election, now scheduled for Oct. 17, are being closely watched for signs of instability or violence.
On Monday, the French technology company supporting the election said it would be nearly impossible to be ready for that date.
The court’s Sept. 1 ruling identified some procedural problems, but the key finding against the election board on Wednesday was that officials had announced results before being able to verify them.
Kenya used two parallel systems: a quick electronic tally vulnerable to typos and a slower paper system designed as a verifiable, definitive back-up. The official results were based on the electronic tally before the paper results were fully collated, the judges said.
The system was designed that way after a disputed 2007 presidential vote sparked violence that killed around 1,200 people and displaced some 600,000 more.
“If elections are not seen to be free and fair, they can trigger instability. We do not need to look far for examples,” said Chief Justice David Maraga.
The board overseeing the 2017 vote did not have all the tally forms when it announced results, and some forms lacked security features like water marks, signatures or serial numbers, which calls their authenticity into question, the court said, adding there was no evidence of individual wrongdoing.
“Though the petitioner claimed various offences were committed by the issues of the first respondent, that is the IEBC (elections board), no evidence was placed before us to prove that allegation,” Maraga said.
“We are therefore unable to impute any criminal intent or culpability.”
Odinga has said he will not take part in the repeat election if several demands, including the sacking of senior staff at the election board, are not met.
Judge Philomena Mwilu said the forms should have been quickly available for inspection, noting officials said thousands of forms from polling stations were still unavailable four days after the official results were announced.
“The (board) cannot therefore be said to have verified the results,” she said. “It is an inexcusable contravention … of the election act.”
She also censured the board’s refusal to comply with court orders to open its computer servers, saying it meant that opposition claims of hacking or manipulation might be true.
“Noncompliance or failure by the board to do as ordered must be held against it,” she said.
But although the tallying process was questioned, voter registration, identification and voting all appeared to have been “conducted in accordance with the law,” she said.
Opposition claims against Kenyatta were largely dismissed. Maraga said the opposition had failed to show evidence Kenyatta had campaigned using state resources or undue influence.
Two judges read lengthy dissenting opinions and accused their four colleagues who issued the majority judgment of misinterpreting the law and other failings, including not paying attention to the evidence and judicial limits.
As judges spoke, police used tear gas to disperse groups of rival political supporters holding demonstrations outside the Supreme Court.
The election re-run has divided Kenya, with many opposition supporters celebrating it and the president and some members of the ruling party criticizing it harshly.
After the majority decision was read, Deputy President William Rut tweeted: “Evidently a supreme coup on sovereign Will of the people was executed on basis of technicalities against their verdict captured in ballots.”
On Tuesday, the chief justice told a news conference that judges were getting threats and the police were not offering adequate protection, an allegation that the chief of police denied.
(Additional reporting by Reuters)