Key issues that will determine Supreme court ruling
Few voters queue to cast their votes at Mahiga Primary school polling station in Roysambu during Kenya's general election on August 9, 2022. All eyes are on the Supreme Court for what is bound to be another monumental judgement on the presidential election petition.
What you need to know:
- All eyes are on the Supreme Court as the country for what is bound to be another monumental judgement on the presidential election petition.
- Close attention to the proceedings indicates that it might boil down to the weight of evidence.
- Here the burden of proof will be on Mr Odinga.
All eyes are on the seven judges of the Supreme Court as the country waits with bated breath for what is bound to be another monumental judgement on the presidential election petition.
President-elect William Ruto and petitioner Raila Odinga were both exuding confidence ahead of the verdict, taking to Facebook and Twitter after the hearings concluded on Friday, celebrating with their respective batteries of lawyers.
But both camps were also keenly aware that it was impossible to predict the outcome with certainty and prepared for the possibility of losing.
A lot is at stake for both protagonists. For Dr Ruto, the court annulling his presidential election victory would amount to losing the battle, not the war.
He would still have another bite of the cherry in the repeat election that must be called within 60 days.
At the relatively young age of 55, there will be many more years of politics in him. But for veteran opposition leader Mr Odinga, a loss would probably prove to be the swansong of a remarkable political career.
It would mark the end of his fifth and, at the age of 77, probably the final, unsuccessful presidential bid.
While the judgement, whichever way it goes, will lay down the law on a number of long-standing as well as new issues, it will also be remembered for many moments that added comic relief to the proceedings.
The “I went to Alliance” brigade—Senator James Orengo for Mr Odinga and for Attorney General Mr Githu Muigai for the Independent Electoral and Boundaries Commission—wowed the galleries with their competing analogies from Shakespeare.
‘Pinky Pinky Ponky’
But it was Mr Willis Otieno, representing one of the lesser-known petitioners Khelef Khalifa, who stole the show with his rendition of his niece's favourite nursery rhyme, ‘Pinky Pinky Ponky’ in trying to illustrate how the IEBC decision on the election winner was more of a lottery.
Within hours, the ever-creative KOT (Kenyans on Twitter) had flooded the blogosphere with Pinky Pinky Ponky memes and videos. Tee shirts were on sale and songs had been released.
Same for the plumber analogy used to counter claims by the lawyers for the IEBC and Dr Ruto that evidence of the now infamous Venezuelans having had access to the results transmission, storage and display systems was simply normal for election technology contractor and nothing sinister.
It was Mr Otieno, again, who told the court that employing a plumber to repair your bathroom does not give him the right to remain on site after his work is done.
If he does, then he becomes a sexual offender, the lawyer suggested. That generated its own share of Twitter and Facebook memes and TikTok videos.
In the meantime, it will be undivided attention on Chief Justice Martha Koome and her six colleagues who today discharge the onerous burden of either allowing Mr Odinga’s petition to go through and ordering a repeat election; or throwing it out and confirming Deputy President Ruto’s presidential election victory.
Possible scenarios
Those are just two in a number of possible permutations that could be played out.
The judges, for instance, could not only allow the petition but also accede to one of Mr Odinga’s pleas to, instead of ordering a repeat poll, declare him the actual winner of the election.
There is a precedence of such outcomes from election petitions in downstream contests, but this would be most unlikely for a presidential suit and especially one where there has not been a full vote recount to determine the actual winner.
Another, equally remote, the possibility is that the court grants the petition, but in addition, finds Dr Ruto guilty of an election offence and therefore bars him from the ensuing repeat election.
Also worth watching is that beyond Mr Odinga versus Dr Ruto, IEBC was literally on the dock.
Indeed, throughout the proceedings, it was IEBC and its chairman Wafula Chebukati facing the most serious accusations—many verging on criminality—of mismanaging the polls.
It became clear during the hearings that IEBC was torn down the middle, with Mr Chebukati, Commissioners Abdi Guliye and Boya Molu, and CEO Marjan Marjan being on one side against a majority of Vice-Chairperson Juliana Cherera and commissioners Francis Wanderi, Irene Masit and Justus Nyangaya on the other.
The split in IEBC became a major plank in the Raila petition, with the court being asked to find that Mr Chebukati acted beyond his powers by “unilaterally” declaring Dr Ruto President-elect, which was termed a personal decision rather than a decision by the commission.
Chief Justice David Maraga’s historic 2017 ruling annulling President Uhuru Kenyatta’s election victory was grounded, not in proof of actual election rigging, but a finding of so many things wrong with the conduct of the polls that the result could not stand.
Today, Chief Justice Martha Koome’s bench comprising Deputy Chief Justice Philomena Mwilu and justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko will be determining if Mr Odinga and the other seven “surrogate” petitioners have provided clear proof that the election was stolen, or otherwise exposed so much rot within the process that the result cannot stand.
Weight of evidence
Close attention to the proceedings indicates that it might boil down to the weight of evidence, as stressed by the respondents’ lawyers, versus the balance of probabilities, as emphasised by the petitioners.
It’s not a surprise that Dr Ruto’s lawyers and the IEBC kept urging the court to focus on numbers and actual evidence that election results were tampered with, while the petition pushes the case for weaknesses and corruption within the electoral system that makes inference possible.
Mr Odinga’s case dwells a lot on claims that external and internal actors infiltrated the electoral technology system.
A major piece of evidence of affidavit sworn by former anti-graft czar John Githongo claiming that a whistleblower had revealed his participation in a hacking firm run by Dr Ruto’s social media propaganda chief Dennis Itumbi and IT guru, former Cabinet minister Davis Chirchir.
There was also a laptop police seized from a Ruto agent during the verification process at the National Tallying Centre, Bomas of Kenya.
A report by the Directorate of Criminal Investigations said the laptop had been used to hack into the IEBC systems.
It was also the DCI which investigated laptops and storage discs confiscated from three Venezuelans’ at the Jomo Kenyatta International Airport.
Mr Chebukati had angrily protested the arrest and harassment of the three, insisting they were bona fide staff of Smartmatic, the company contracted to provide election technology.
Indeed the police later conceded that the three were on a legitimate mission even if they had brought in election materials using unorthodox means.
However, Director of Criminal Investigations George Kinoti later released a damning report claiming that their laptops had the capacity to enter the IEBC election system, upload, change and alter documents and data.
Both sides have their hired experts giving diametrically opposed views, but it will now be up to the seven judges to determine fact from fiction, truth from lies.
A factor that might be key is apart from reports claiming that external forces had the capacity to enter the IEBC server and manipulate data, whether or not there is actual evidence of such entry and manipulation.
And, critically, whether there is actual evidence that the Forms 34A on the IEBC portal used to tally and determine the actual winner, are different from the forms generated at the polling station, signed by candidates’ agents, and distributed to all interested parties.
Here the burden of proof will be on Mr Odinga. The IEBC said it brought all the forms it had for comparison, but it seems the petitioners brought very few, and even some of those were contested.
If Mr Odinga had brought enough forms from his agents to counter the ones provided by IEBC and those on the portal, it probably would have been an open and shut case.
That he did not makes it rather difficult, as does the fact that an audit conducted on the IEBC database and a sampling of polling areas did not reveal any alarming pattern of misdeeds.
That probably means that the case will be decided more on processes and in particular the split in the IEBC which exposed a critical public institution riven by partisan feuds.
