Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test

Justice Robert H. Jackson once said of the US Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”

The infallibility that finality brings may, in the long view, be one of the few merits of the Supreme Court’s much awaited judgment on the presidential petitions.

First, there is the Court’s reliance on extremely backward Nigerian authorities urged on it by the Attorney General, Prof Githu Muigai, acting as amicus curiae. Second, there is its tolerant and uncritical acceptance of the IEBC’s explanations about the ever-fluid totals in multiple voters’ registers and what this means in practice. Third, there is the question of tallying and especially, what the Court’s own tallies show but is not properly reflected in the judgment. Fourth, there is the Court’s use of subsidiary legislation to limit the meaning of “votes cast,” an unambiguous phrase in the Constitution. Finally, there is evidential foreclosure that the Court imposes on itself by taking judicial notice of technology failures instead of treating IEBC as spurious, as urged by petitioners.

There were very specific questions asked by the petitioners. IEBC did not convincingly respond to any. Why was the Electronic Voter Identification Device, EVID, never deployed? The IEBC had publicly assured Kenyans before the election that it had put in place mechanisms to ensure that the technology would work. Why did IEBC buy the kit but not get the connectivity required to make it work?
Why did the IEBC set up the authentication system on a GPRS platform knowing that this platform’s low capabilities could impair performance? Given GPRS data transmission rates of 56-114 kbps, against other higher performance locally available platforms such as EDGE (200 Kbps); 3G (above 200 kbps) was this a reasonable or responsible decision? Are these the standards an election court expects of a reasonable elections manager, like IEBC?

Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test

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PRIME A regional war: Ethiopia troop pullout plan puts Somalia security under new strain

Explainer: Why new war in Ethiopia’s Tigray threatens to trigger wider conflict

PRIME Ethiopia, Sudan junta bicker again over RSF support claims

PRIME East Africa’s oil rivalry is missing the bigger energy security question

PRIME South Sudan breaks ground for Naivasha dry port

PRIME Kenya’s Ebola scare reveals continental vulnerability

PRIME South Sudan denies plan to eject foreign traders

PRIME AI boom, trade resilience lift global trade outlook as gains uneven

PRIME South Sudan denies plan to eject foreign traders

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PRIME Africa rating agency to issue 2000 new shares

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A regional war: Ethiopia troop pullout plan puts Somalia security under new strain

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South Sudan breaks ground for Naivasha dry port

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