Judges Njoki Ndung'u and Jackton Ojwang' Dissent in Ruling on Presidential Election Petition

The Supreme Court on Friday delivered its ruling on an election petition that challenged the declaration of President Uhuru Kenyatta as the winner of the 2017 presidential poll.

The court had been mandated to determine and issue orders on three issues:-

1. Whether 2017 presidential election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections

2. Whether there were irregularities and illegalities committed during the conduct of the 2017 presidential election 

3. If there were irregularities and illegalities, what was their impact on the integrity of the election?

While a majority of the judges were of the opinion the presidential election be nullified, Justices Njoki Ndung'u and Jackton Ojwang' had a dissenting judgement.

"The court has rendered it's judgement by a majority. I am, however, of a different opinion. At the heart of democracy are the people who will constitute the strand of governance that we have chosen as a country.

"On August 8 millions of Kenyans yielded to the call of democracy and queued for many hours to fulfil their duty to the republic by delegating their sovereign power to their democratically elected representatives," Justice Ndung'u begun.

She went on to explain that, in her considered judgement, the petition did not provide a compelling reason to repeal the election results.

She emphasised that the polling station was the most important part of the electoral process and since there was no challenge to the conduct there, then the election results could be upheld as the true representation of the will of the people.

Justice Ojwang' opposed the majority view basing his argument on the view that the petitioners had failed to present substantive evidence on their claims.

"The important petition that seeks the annulment of the 2017 presidential election results is focussed on a limited number of contentions.

"Wheras the substance of the case founded on irregularities and illegalities rests the electronic transmission of results, there is substantial information showing that by law the conduct of elections should have been mainly manual and only partially electronic, hardly any conclusive evidence has been adduced in this regard," Justice Ojwang' disputed.

In delivering the ruling, Chief Justice David Maraga declared that the Independent Electoral and Boundaries Commission (IEBC) had "failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution and inter alia (among other things) the Elections Act Chapter 7 of the laws of Kenya".

Maraga apologised for having not prepared a complete, written judgement but assured that the Judges would comply with provisions of law and deliver it in 21 days.

He also stated that: "What we have this morning is a determination of the court. I'd like to say that the greatness of a nation lies in its fidelity to its constitution and strict adherence to the rule of law. and above all, the fear of God".

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