The Supreme Court Monday afternoon upheld the election of William Samoei Ruto as Kenya’s fifth president, summing up the meteoric rise of a man who defied his boss and the sitting administration to be the country’s youngest Head of State.
The Chief Justice Martha Koome-led Bench unanimously threw out a petition by Azimio la Umoja One Kenya Coalition candidate Raila Odinga, who argued the declaration of Dr Ruto was null and void.
Justice Koome said that the court will issue a summary, and then give the full judgment after 21 days.
The court in its considered view, found no evidence of a man in the middle server and no evidence was produced to show that the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati and other IEBC staff were involved.
Justice Koome also said that the Supreme Court found no significant differences found between forms uploaded on portal and forms delivered to Bomas, at the IEBC National Tallying Centre.
“No credible evidence was given to show forms given to agents were different,” CJ Koome said.
The court also found that affidavits by two of Mr Odinga’s experts not admissible.
“There is nothing to show that Raila asked the two people to swear affidavits. We must remind counsel who appear before this court or any other court that swearing to falsehoods is a criminal offence,” she siad.
The Court also dismissed the contents of the affidavit of John Mark Githongo, adding that it may have contained falsehoods.
“No admissible evidence was presented to show that forms 34A were manipulated. The affidavits amount to double hearsay,” Justice Koome said.
On affidavit of Gacharaigu, the court said this turned out to be hot air, adding that the Kiems kit relating to Psongoiywo Primary School was presented as a manufacturer error.
CJ Koome also said that the the court failed to see how by postponing elections, IEBC was targeting voter suppression.
“The absence of any empirical data bars the court from finding that IEBC suppressed voting in Mr Odinga strongholds,” she said.
On whether there were unexplainable variances in votes cast for President and other elective positions, the Supreme Court determined that not a single document was presented by the first petition to prove ballot stuffing.
“Fraud is a serious criminal offence and it must be proved beyond reasonable doubt. IEBC has provided a plausible explanation showing categories of voters like diaspora and prisons, who only vote for President. None of the parties has flagged anything so significant that it would have affected the outcome. There were no unexplainable variances in votes cast for President and other elective positions,” CJ Koome said.
On whether tallying and verification was done in accordance with the Constitution, the Supreme Court Judges having considered “all the parties submissions, we find that the power to tally and verify not in the chairperson of IEBC but the commission.”
“We also find that the Chairperson cannot arrogate the power to tally and verify the results to the elections act to the exclusion of other commissioners. That said, we however take cognizance that the four commissioners actively participated in the tallying and verification exercise from the beginning until just before declaration of the final results by the Chairperson,” CJ Koome said.
The bench also took cognizance that the four commissioners actively participated in the tallying and verification exercise from the beginning until just before declaration of the final results by the Chairperson.
“CJ Koome says that an example is when one of them, Justus Nyang’aya, stood on the podium to announce results and make corrections to erroneous tallies. All the petitioners have anchored their argument for nullification on the walkout by the four commissioners from Bomas,” she said.
The Judges said that aside from their 11th hour walkout, the four commissioners have not placed before the court any document that shows the elections result was altered.
CJ Koome posed: “Are we to nullify an election on the basis of a last minute rapture the details of which remain scanty?”
“This we cannot do,” she said, adding that the dysfunctionality at IEBC cannot be a ground for nullification.
On whether the declared President-Elect Dr Ruto garnered 50 per cent plus one vote requirement, CJ Koome said that the judges are not persuaded by LSK to review their position on exclusion of rejected ballots in computing total votes cast.
“We finds that no evidence was submitted to show that William Ruto did not attain the 50 per cent plus one vote requirement,” CJ Koome said.
In the petition, Mr Odinga had argued that Dr Ruto did not meet the 50 per cent plus one threshold to be declared winner in the first round, and that there were 140,000 unaccounted votes that would have changed the outcome.
Mr Odinga says the Independent Electoral and Boundaries Commission (IEBC) failed to deploy a fool proof elections technology, which they said saw the infiltration of the system, leading to variances in the results on the public portal and those issued to agents at the polling stations, and the physical ones delivered at the national tallying centre.
Mr Odinga also argued that the last-minute decision by the IEBC to postpone polls in Mombasa and Kakamega for the governor races, as well as MP races in Pokot South, Kacheliba, Kitui Rural and Rongai supressed voter turnout in areas they said were Azimio strongholds.
IEBC chairman Wafula Chebukati had on August 15, six days after the General Election declared Dr Ruto as the president elect after he garnered 7,176,141 million votes (50.49 percent) against Mr Odinga’s 6,942,930 million votes (48.85 percent).
Prof George Wajackoyah of Roots Party managed 61,969 votes (0.44 percent) while David Mwaure Waihiga came fourth with 31,987 votes (0.23 percent).
In the elections, Mr Odinga had been backed by President Uhuru Kenyatta who helped amass the Azimio movement, bringing together 26 parties.
Abandoned by his boss, Dr Ruto mounted a solo campaign, creating the Kenya Kwanza Alliance that brought together Amani National Congress (ANC) leader Musalia Mudavadi and his Ford Kenya counterpart Moses Wetang’ula.
Also in the fold were National Assembly Speaker Justin Muturi, his Senate counterpart Ken Lusaka, Mwangi Kiunjuri’s The Service Party (TSP), and former Kiambu governor William Kabogo’s Tujibebe Wakenya Party.
Read: Not even ‘Solomon would impress both sides’, says Willy Mutunga
But at the Supreme Court, the political deal making and what that did or did not do was not in question.
At the heart of the court proceedings were nine issues the court were to determine.
Here is how the court decided:
- The technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results. (Unanimous. Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Mohammed K Ibrahim, Njoki Ndung’u, Dr Smokin Wanjala, Isaac Lenaola, William Ouko).
- There was no interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC Public Portal. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- There was no significant difference between Forms 34A uploaded on the IEBC Public Portal and the Forms 34A received at the National Tallying Centre, and Forms 34A issued to the Agents at the Polling Stations. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- The postponement of Gubernatorial Elections in Kakamega and Mombasa Counties, Parliamentary elections in Kitui Rural, Kacheliba Rongai and Pokot South Constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency did not result in voter suppression to the detriment of Raila Odinga. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- There were no unexplainable discrepancies between the votes cast for presidential candidates and other elective positions. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- 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 power to tally and verify not in the chairperson of IEBC but the commission. Four commissioners took part in the tallying until only at the last minute. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- The declared President-elect attained 50%+1 vote of all the votes cast in accordance with Article 138 (4) of the Constitution. Rejected ballots cannot be used in the tally of this constitutional threshold. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- There were no irregularities and illegalities of such magnitude as to affect the final result of the Presidential Election. ((Unanimous. Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).
- Reliefs and orders: William Ruto was validly elected. ((Koome, Mwilu, Ibrahim, Njoki, Wanjala, Lenaola, Ouko).