Kenya’s Supreme Court has dismissed a presidential petition filed by Raila Amolo Odinga, and upheld the election of William Samoei Ruto as the fifth president of the Republic of Kenya.
Starting at midday, Supreme Court president Chief Justice Martha Koome read the final judgement of the seven-judge bench on Presidential Election Petition No. E005 OF 2022 (as consolidated with presidential petition Nos. E001, E002, E003, E004, E007 and E008 OF 2022) between Raila Amolo Odinga & 6 Others (the Petitioners), and William Ruto & 10 Others (The Respondents), and Law Society of Kenya and 2 Others (The Amici Curiae).
Raila Odinga and other petitioners lost on all the nine issues that the Supreme Court set out to determine.
- Did the technology the IEBC used meet standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results?
Upon considering all the pleadings, submissions and all the ICT scrutiny of the vote tallying and recounting report which fully examined the IEBC’s elections system, we are not persuaded by the allegation that the technology deployed by the IEBC failed the standard of article 86 (a) of the Constitution on integrity, verifiability, security and transparency to guarantee accurate and verifiable results. In our view, the petitioners failed to produce evidence to the contrary.
- Was there interference in uploading and transmission of forms 34A from polling stations to the IEBC public portal?
There were no significant differences captured between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to Bomas that would have affected the overall outcome of the presidential election.
No credible evidence was provided to prove that anyone accessed the IEBC system to intercept Form 34As.
3. Was there a difference between forms 34A uploaded in the IEBC public portal and those received at the National Tallying Centre?
No credible evidence was there to support the allegation that Forms 34A presented to agents differed from those uploaded on the public portal. We have found none.
4. Did the postponement of gubernatorial elections in Kakamega and Mombasa counties result in voter suppression to disadvantage Raila Odinga?
As regarding this allegation, it has not been sworn that by postponing the elections in the named electoral units, IEBC acted in bad faith or was influenced by irrelevant and considerations.
From the explanation tendered, we are satisfied that the postponement was occasioned by a genuine mistake which in our view could have been avoided had the IEBC staff been more diligent when they went to inspect the templates in Greece where the printing of ballot papers was undertaken.
IEBC illustrated with examples to our satisfaction that there was no nexus between the postponement of elections and voter turnout.
In the absence of any empirical data as a matter of fact or evidence that the postponement affected voter turnout of which the first petitioner alone suffered a disadvantage.
5. Was there unexplained discrepancies between votes cast for presidential candidates and other elective positions?
IEBC has proffered a plausible explanation for the vote differential citing category of voters who only vote for president such as prisoners and diaspora.
There were insignificant number of stray votes whose combined effect cannot justify the nullification of the election.
There were no unexplained significant discrepancies; no ballot stuffing was proven.
6. Did the IEBC carry out the verification, tallying and declaration of results in accordance with provisions of articles 138 (3) (c) and 138 (10)?
We find that pursuant to Article 138 (3)(c) of the Constitution, the power to tally and verify presidential election results as received at the national tallying centre not in the chairperson of IEBC but in the commission itself.
We find that the chairperson cannot arrogate to himself the power to verify and tally results of a presidential election to the exclusion of other members of the commission. He does so only as a delegate of the Commission.
That said, we however take cognizance that the four commissioners actively participated in the tallying and verification exercise from the beginning until just before declaration of the final results by the chairperson.
We note that aside from their 11th hour walkout, the four commissioners have not placed before this court any document to show the elections result was altered
The four commissioners have not placed before this court any information or document to show that the results were compromised or that the results would have substantially differed from that declared by the chairperson.
In the absence of any evidence so, violation of the Constitution and election laws, how can we upset an election in which the people have participated without hindrance as they made their political choices pursuant to Article 38 of the Constitution? To this would be tantamount to subjecting the sovereign will of the people to the quorum antics of the IEBC. This we cannot do.
7. Did President-elect William Ruto meet the 50+1 constitutional threshold?
We have deliberated on this proposition and found that it’s not mathematically sound and that the rounding off done by IEBC chairperson was correct.”
8. Were there irregularities and illegalities of such magnitude as to affect the final result of the presidential election?
We find that the petitioners did not present a water-tight case to warrant the setting aside of the presidential election on the basis of having not met the threshold provided under Article 138 (4)(a) of the Constitution
9. Orders
- Election petition dismissed.
- Election of William Ruto upheld.
- Each party bears its costs.
