By L. Muthoni Wanyeki
Posted Saturday, April 20 2013 at 12:37
The Supreme Court judgment on the various presidential elections petitions was released this past week. The rigid approach adopted towards the petitioners’ deadlines was held as not being necessary for the Supreme Court itself — expected the Saturday before, it was delivered, in silence, on Tuesday. It was apparently too long to read out.
An anti-climatic moment for a substantively underwhelming judgment.
In a nutshell, it argues the petitioners did not meet the standard of proof required to demonstrate not just non-compliance with the law but also how that non-compliance affected the so-called presidential results. We already knew that that was the Supreme Court’s argument. What we were waiting for was to hear why.
On the why, the Supreme Court’s judgment adopts the position that the standard of proof falls between a balance of probabilities and being beyond reasonable doubt. Ignored is the “fruit of the poisoned tree” doctrine, which would hold that any result from a poisoned process would be equally poisonous.
It was an apparently lawful exercise of the IEBC’s discretion to disallow political party agents access to the verification process at the national tallying centre. The discretion to prioritise security over transparency was apparently lawful. Even when the lack of access was extended to domestic and international observers.
The political party agents’ relocation upstairs, where it was impossible to see what was going on, was apparently compensated for by their being allowed (allowed) to peruse the Forms 36s the IEBC intended to announce.
Thus too it was apparently lawful that that the technologies intended to identify voters and to electronically submit polling station results failed. The attempt here is to reduce the petitioners’ arguments to the mere failure of the technologies and the fact that the electronic transmission of results was never intended as the primary transmission method.
But the Supreme Court did throw out a little bone to the dogs by urging relevant parts of the state to investigate and prosecute any criminal acts related to the procurement and deployment of the said technologies. The dogs’ jaws drop.
On the problems raised with the Voters Register, the Supreme Court reached the astonishing conclusion that the Voters Register is not single, can include both electronic and special registers, the latter to cater to specific categories of persons and can be in flux even as Kenyans are actually voting — all in the interest of not disenfranchising any Kenyan.
It did, however, as another little bone to the dogs, urge the IEBC to back-up its Green Book — a Voters Register not catered for in law. The dogs’ jaws drop again.
Despite the “many irregularities in the data and information capture during the registration process,” the Supreme Court concludes that the petitioners did not meet their legal burden of proof in showing that these irregularities affected the outcome in favour of one candidate or another.
Really? What about the evidence adduced mapping the changes to the Voters’ Register against strongholds? Which reveals a reduction of 14,125 registered voters at the Coast and Nyanza and an increase of 68,848 registered voters in Central and the Rift Valley?
Reductions and deletions may have happened across the country — but they cannot be said to be random. There is a pattern that had the effect of systemically disadvantaging one presidential candidate and favouring another.
It’s amazing. The art of speaking out of both sides of our mouths. The art of dissimulation. The art of injustice.
L. Muthoni Wanyeki is doing her graduate studies at L’Institut d’etudes politiques (Sciences Po) in Paris, France