The Supreme Court is the final arena where the just concluded presidential election is expected to be adjucated on 5th September 2022. The apex court is expected to either uphold the election of President Elect William Ruto or nullify the same and call for fresh elections within sixty days.
In doing so the Supreme Court may likely employ Quantitative test of Qualitative test in making its decision.
1. Upholding the Election Results based on the Quantitative Test
Presidential election results were highly contested. The petitioner(s) alleged dissatisfaction and the respondent(s) replied. In Common Law, he who alleges MUST prove. In this case the burden of proof lied squarely on the petitioners.
After the presentation of evidence and oral submissions by the Raila-Karua legal team, it became apparent that NOT so much material evidence of probative value was adduced to support the petition on the basis of discrepancies on figures (results).
In terms of discrepancies in statistical figures, the Azimio team failed to marshal sufficiently glaring redoubtable evidence.
Even though some discrepancies were presented by Azimio as quantitative evidence, it certainly may have not swayed the mind of the Court to nullify the election.
The rest of the petitioners also presented their evidence and made robust arguments in support of the petition. However, they equally did not marshall sufficient evidence for the quantitative test.
In conclusion, if the Supreme Court decides to uphold the impugned election results, then it will be mostly based on the Qualitative Test.
Now, let us turn to the Nullification part of my analysis.
2. Nullification based on the Qualitative Test
This presidential election may also be nullified based on the unconstitutionality of the elections process also known as the Qualitative Test. In this aspect, the petitioners succeeded in indicting both the IEBC and its Chairperson, Mr. Wafula Chebukati.
Mr. Chebukati was indicted for usurping his powers and acting contrary to constitutional provisions. His conduct, character, and behaviour in the management of the IEBC has been brought to question before the Supreme Court. Chebukati was accused of turning the IEBC into a one-man show, contrary to the provisions of the Constitution and the IEBC Act as read together.
The IEBC whose Chairperson is non other than Mr. Chebukati has come under heavy criticism and is said to be not only dysfunctional but also malfunctioning. Chebukati was accused of leaving out 4 other Commissioners in important decisions undertaken by the IEBC.
Chebukati’s ill-conduct came apparent when during the verification and tallying of the presidential votes at Bomas where he abrogated to himself too much powers while excluding the 4 other Commissioners. The entire process was supposed to involve the substantive participation of all the Commissioners.
Mr. Chebukati also published in the Kenya Gazette his role as the national returning officer contrary to the constitutional provisions.
The independent report on the voter register by the KPMG that showed hundreds of invalid voters in the voters register also arose before the Supreme Court. The IEBC was thus indicted of presiding over an election with unclean voter register.
The issue of the denominator for determining voter turnout also came to the fore. The IEBC was indicted for having no common denominator for calculating the exact voter turnout. This makes it practically impossible to understand how the 50% plus 1 vote was arrived at.
The IEBC was also indicted for noncompliance with the Supreme Court orders for server scrutiny. Even though it granted access for scrutiny, it wilfully limited the access in contempt of Court. There were disturbing evidence on the last day of the hearings demonstrating that the IEBC servers were not military grade as they claimed.
Evidence shows that the Venezuela aliens have unfettered access to the IEBC servers in sharp contravention of the data protection Act. The Venezuela aliens are believed to have played a substantive role in determining the outcome of the just concluded presidential election.
The IEBC was also indicted of printing two sets of forms 34As contrary to the law. There should have only been form 34A 1 of 2 only instead of 34A 2 of 2. It is believed that the duplicate form 34A 2 of 2 was printed for the convenience of committing electoral fraud.
Further, it would interest you to learn that the IEBC failed to announce results from 27 constituencies before finally announcing the overall election results and declaring the winner. This was an infraction of the electoral law.
It would also interest you that the electoral law provides that scanned forms 34As at the polling stations must be transmitted as coloured and in jpeg format during transmission to the national tallying portal. However, forms 34As displayed in the national tallying portal are black and white and are in pdf format.
In conclusion, numerous mistakes by the IEBC were cited before the Supreme Court. All these mistakes amount to actions that run contrary to the Constitution. It would, in fact, interest you to note that the IEBC did not pass the Qualitative Test in this election.
Since the Constitution of Kenya 2010 already envisaged an election that MUST strictly confirms to the constitutional provisions, any election that falls short of those provisions is invalid, null and void. In conclusion, if the election is nullified it will be as a result of the Qualitative Test.