Justices Njoki Ndung'u, Jackton Ojwang Dissenting Verdicts on Nullification of Uhuru's Re-election

As a majority of Supreme Court judges ruled in favor of Raila Odinga's presidential petition on Friday, judges Njoki Ndung’u and Jackton Ojwang delivered a dissenting verdict, where they found no grounds to overturn President Uhuru's reelection.

In their verdict, read separately,the duo found that National Super Alliance (NASA) leader Raila Odinga failed to prove beyond reasonable doubt that the results announced at the constituencies had discrepancies.

Njoki and Ojwang questioned how the result transmission system, which
Independent Electoral and Boundaries Commission (IEBC) was a bus, could be used as a basis to overturn the whole election.

Justice Ojwang in his verdict said that Kenya’s election is manual and mildly supported by the electronic process, and the fact that no one disputed the figures announced at constituency, the election was valid.

“It was not proved that the voters’ will during the conduct of elections, was so affected by any irregularities cited so as to place this court or the country in doubt as to what the result of the election was,” Justice Njoki ruled.

In her decision, Njoki said she considered four issues: whether the registration of voters had problems; whether they were properly identified at the polling stations, and, if they were allowed to cast their ballots peacefully.

Also in her mind was the question on whether the votes cast, counted, declared and verified at the polling station were to the satisfaction of the parties. She found that no contested the numbers announced.

“If the answer to all these questions is in the affirmative, then the election has been conducted properly,” she ruled.

“The petitioners in my view did not present material evidence, to the standard required, to upset the results returned to the National Tallying Centre by the presiding officers in Forms 34A. Those results, counted and agreed upon by agents at the polling station were not challenged.” Njoki said.

Her verdict agreed with the commission and President Uhuru Kenyatta that there cannot be an election that is 100 percent.

“Challenges are to be expected during the conduct of any election. However, those challenges which occurred, (and in my opinion, none of which occurred deliberately or in bad faith, and which fell particularly outside the remit of the voter and his or her will) – ought not to supplant the voter’s exercise of their right of suffrage.”

On his part, Justice Ojwang ruled that there was no iota of evidence Raila Odinga to upset the will of the Kenyan people. He ruled that election was basically about the electorate and not the process that culminated to the final tally.

In his decision, Ojwang argued that the presented before him was on general allegations which did not have a backing by the Constitution and the election laws.

“Hardly any conclusive evidence has been adduced in this regard which demonstrates such a manifestation of irregularity as to justify the invalidation of the election results,” he ruled.

“It is clear to me beyond peradventure that there is not iota of merit in invalidating the clear expression of the Kenyan peoples’ democratic will which was recorded on August 8, 2017”.