Kenya Supreme Court nixed poll because it couldn't see data
By TOM ODULA
Sep. 20, 2017
NAIROBI, Kenya (AP) — Kenya's Supreme Court said Wednesday it nullified President Uhuru Kenyatta's re-election largely because the electoral commission refused to allow an investigation of its computerized system that transmitted results.
The court judges said because the electoral commission refused to allow scrutiny of its computer servers it had no option but to agree with the claim by Kenya's opposition leader Raila Odinga that the computerized data of the August presidential elections had been interfered with.
Outside the court, demonstrators protested for and against the Supreme Court's ruling.
The court annulled President Uhuru Kenyatta's re-election earlier this month saying there were irregularities and illegalities. It made the decision in response to Odinga's petition challenging the official results that Kenyatta won with 54 percent of the vote. The electoral commission has set Oct. 17 as the date for a fresh election.
Explaining why it annulled Kenyatta's win, the Supreme Court said its order to view the computerized data was "a golden opportunity" for the electoral commission to present evidence to debunk Odinga's claim of interference.
"IEBC's contumacious disobedience of this order ... in critical areas leaves us with no option but to accept the petitioner's (Odinga's) claims that the IEBC IT system was infiltrated and the data therein interfered with or IEBC officials interfered with the data or simply refused to accept that it had bungled the whole transmission system and was unable to verify the data," said Justice Philomena Mwilu, who read part of the judgment.
The electoral commission also failed to implement verification measures required by law and the constitution to ensure the election was credible, said the judgment. The electoral commission announced the winner of the presidential election even though it was missing thousands of scanned copies of forms used to compile the presidential results at the constituency, said the judgment. Those measures were ordered by the court of appeal last year to enhance accountability and reduce incidences of electoral fraud.
The presidential results announced on August 11 were based on forms which were not the primary document that the law says should be used to compile presidential elections results and some of those forms were of "dubious authenticity," said the judgment.
"For the above reasons we find the 2017 presidential election was not conducted in accordance with the principles laid down in the constitution and the written law of election in that it was ... neither transparent nor verifiable. On that ground alone ... we have no choice but nullify it," said the judgment.
Chief Justice David Maraga on his part said irregularities and illegalities were substantial and could not be ignored. They included, the use of unsigned or forms without security features to tabulate the results of the presidential election, he said.
Justice Jackton Ojwang, one of the two judges who gave a dissenting ruling, said Odinga's case did not meet the threshold of evidence.
Outside the court room, Kenya's police tear gassed opposition and ruling party supporters who had gathered outside the Supreme Court and started jeering and pushing each other, threatening violence, said a witness. Cyrus Okemwa, who was among the opposition supporters, said a swarm of bees first attacked the demonstrators followed by police tear gas.
"There was push between or among the supporters outside the court and all over a sudden bees attacked and tear gas came from police," Okemwa said.
Kenya's Chief Justice David Maraga said Tuesday that since the September 1 judgment nullifying the election results, there have been attempts to intimidate judges. Kenyatta has called the Supreme Court judges "crooks" and warned of unspecified action against the judiciary if he is re-elected next month.