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

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”.

Comments

c (not verified)     Sat, 09/02/2017 @ 09:13pm

Thanks Njoki and Ojwang for refusing to part of judicial tyranny and a shameless judicial coup detat.
NASA 21 STEPS TO INVALIDATE POLL AND ENTER FAKE CANAAN
EUREKA! WE FOUND IT. HERE IS WHAT NASA DID TO INVALIDATE ELECTIONS:
1. NASA knew they do not have votes to beat Jubilee but they have the mischief. They had no Tyranny of numbers but they could muster the tyranny of lies, mischief and propaganda. They wanted to get the ballot printing tender so they could get extra ballots and extra forms 34 A, B and C for false result claims in their strongholds
2. When they failed to get the tender, they went to court and insisted that the constituency should be the point of final results declaration. The judgement was thus granted
3. NASA knew they had no votes to beat Jubilee but they could spoil the polls
4. At the polling stations they could not bring fake forms because there was more scrutiny
5. So they printed fake forms 34Bs distributed to as many NASA-friendly Constituency returning officers in NASA STRONGHOLDS like Joho’s Mombasa county and Luoland. At the constituency level Jubilee agents in NASA strongholds were either absent, not keen to note fake Form 34 Bs being introduced or they were knowingly being NASA moles pretending to be Jubilee agents
6. The returning officers who were pro-NASA deliberately used the wrong forms 34B to collate the results from polling stations. They also deliberately entered as many errors as they could.
7. The voting was done okay in most polling stations and the results transmitted directly to the National Tallying Center and Constituency tallying centers.
8. IEBC had initially said they would not stream provisional results as per the court rulings. But under pressure and to avoid allegations of cooking results for being silent, they promised to show streaming results as updated every 3 hours.
9. That did not allow enough time for form 34Bs to come in so IEBC could scrutinize them and notice that in NASA strongholds, fake Forms 34Bs had been introduced.
10. In the meantime, NASA started or rather continued making noise about IEBC and how results were coming in when it was obvious that Jubilee was winning
11. NASA agents some of them overseas tried to hack into the IEBC servers. NASA also had moles within IEBC IT department where they deliberately interfered with the servers and data to create false evidence of results manipulation.
12. Observers and everybody noticed and agreed that things had gone well at polling stations. But at Constituency Tallying Centers there was less observers to note what in NASA strongholds was going on with form 34Bs. At Constituency and County level also, Jubilee candidates agents focused on MP, MCA, Senator and Governor results tallying and those were correct as announced.
13. The results continued coming to IEBC and IEBC was under pressure to finish up the collation of Forms 34 Bs to generate Forms 34 C. Remember as per Court orders IEBC Chebukati was denied power to change anything coming from Constituency Tallying Centers
14. IEBC and Chebukati did the right thing and correctly tallied the submitted results, then announced the winner legally and correctly.
15. NASA made noise as expected. Then pretended they would not go to court to fool Jubilee into relaxation while NASA agents and lawyers worked 24/7 to gather the many fake forms their agents (as Returning Officers) had knowing submitted to IEBC
16. NASA has over the years quietly taken over the judiciary using their friendly judges and many clerical moles. They also managed to push many of their sympathizer judges to enter the Supreme Court after three positions became vacant.
17. After results were announced and widely accepted NASA tried the violence card but it failed to catch on. The “peoples’ court” was touted but soon fizzled out.
18. They tried to use the foot soldiers (NGOS like Africog) to go to court but the move was thwarted.
19. Then in a last-minute surprise move NASA went to court filed the petition and piled external pressure on the judges to believe the fabricated allegations and false evidence and “this time around” redeem the supreme court image
20. Jubilee and IEBC lawyers did a gallant job as admitted by even Justice Ojwang. But lazy computer illiterate, false religious David Maraga along-side Kalonzo leaning Philomena Muilu, Wetangula and Mudavadi leaning Smokin Wanjala and one erratic self-impressing judge Leanola accepted the NASA lawyers’ propaganda and without an iota of evidence or sound legal reasoning and realistic and patriotic consideration of country THE INEPT JUDGES INVALIDATED THE OTHERWISE CREDIBLE ELECTIONS in a move that surprised millions and threw Kenya into turmoil.
21. Now NASA is working mischievously harder to create a constitutional crisis and force NUSU mkate fake Canaan. If Jubilee and IEBC and every Jubilee supporters doesn’t watch out and speak out, the repeat elections will be spoilt by NASA to create another claim of illegitimacy and throw the country into turmoil until mkate nusu comes through. IEBC please ensure no fake FORMs 34 Bs are submitted from NASA strongholds again!

Anonymous

OneDay@times (not verified)     Sun, 09/03/2017 @ 01:20am

Your Ladyship you are the Deborah the judge of today (read Judges 4). Let Barak know that the power is in the promise and not your presence in the "battle" field. Your courage to dissent shapes the constitutional dialogue and future of our democracy. In your written submissions please detail to the bench, the bar and the public how the majority erred. Because our constitutional provisions may have been construed as to defeat the ends the Kenyan citizen desired to accomplish, which they attempted to accomplish, and which they hoped they had accomplished by recent changes in their constitution.

Pauline Muchina (not verified)     Sun, 09/03/2017 @ 09:41pm

Justice Njoki and Ojwang, thanks for backing your decision with evidence and clearly. Hope the other judges can learn from you. You don't annual an election without indicating what you based your decision on. The other judges need to tell Kenyans how they arrived at their decision

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