Nairobi: Kenya‘s Supreme Court on Wednesday criticised the election board 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 August 8 election and ordered a fresh presidential vote within 60 days. The September 1 decision was the first of its kind in Africa.
The election board had said incumbent 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 October 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 September 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 judgement 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 criticising 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.