Why the judgment by Njoki Ndung’u should be shredded to pieces and trashed

September 20th 2017 was literally a judgement day in Kenya. 12 hours of judgement, that’s what some Kenyans including myself persevered to listen to all day yesterday. Interestingly though, 8 of those hours were hours spent by JB Ojwang’ and Njoki Ndung’u whose judgments have no bearing in the matter at hand except to be used as reference materials in jurisprudence in future cases in Kenya and elsewhere . Yesterday was also a day when the Supreme Court Register was accused by Fred Ngatia for allegedly forging forms 34B.

Before I get into the accusation Fred Ngatia made against Supreme Court Register Anne Atieno Amadi, let me comment on the question of Supreme Court finding no IEBC staff or Commissioners at fault for the irregularities and illegalities that were identified. This question is being used mainly by Jubilee supporters to discredit the majority judgement. The reasoning is that if there were serious irregularities and illegalities that led to the cancellation of the August 8th Presidential Election, then those who committed those irregularities and illegalities ought to have been found culpable and further investigations or punishments recommended. However, majority ruled that given evidence before them, they found no IEBC staff or Commissioner culpable. “IEBC off the hook”, Daily Nation wrote on its today’s headline.

It is important to remember two things; 1. The Jurisdiction of the Supreme Court in matters Presidential Election and 2. The nature of the Petition that was before the judges. By Jurisdiction, the Supreme Court is mandated to hear and determine within 14 days a Petition against a Presidential Election. The concern of the Supreme Court therefore is to determine whether or not a Presidential Election has been conducted in accordance to the Constitution and Electoral Laws and Regulations. If the Constitution and Electoral Laws and Regulations are not strictly followed when conducting the Presidential election, then the Supreme Court is mandated to annul that election. The nature of the Petition before the judges also determine how they handle and rule the Petition. A Petition concerning Presidential Election can be presented in several ways including but not limited to these four premises:

1. That the votes announced in favor of a particular candidate are not legitimate
2. That a particular candidate did not meet the Constitutional threshold of 50%+1 and/or gained at least 25% of the votes in at least half the counties,
3. That the process through which the election was conducted was not in accordance with the constitution and/or electoral laws and regulations, and/or
4. That specific individuals committed crimes under Elections Offenses Act during the conductance of a Presidential Election.

In 2013, Raila Petitioned Uhuru’s win based on premise 2 whereas in 2017 he petitioned the re-election of Uhuru Kenyatta under premise 3 against IEBC and IEBC Chair and premise 4 against Uhuru Kenyatta and specific government officials. The part of the petition that was based on premise 4 was dismissed for lack of sufficient evidence. Remember premise 4 was presented to Supreme Court purely against Uhuru Kenyatta and certain officers in his Government, and not against any IEBC staff or member of the Commission. Since the courts don’t rule on matters not presented before them, the Supreme Court could not rule on whether or not certain IEBC staff or Commissioners committed any Elections Offences as far as the 2017 Presidential Election was concerned – that’s why they found no IEBC staff and/Commissioners culpable of breaching any clause in the Elections Offenses Act.

In as much as the Supreme Court ruled to annul the August 8th Presidential Election, two judges dissented. JB Ojwang’ dissented with his main argument being that the votes cast in the polling station is what matters, and if anyone has issues with transmission, then leave should be sort for recount of the ballot papers cast at the polling stations.

Njoki Ndung’u on the other hand dissented basing her argument mainly on the basis that the constitution and elections laws and regulations that were claimed to have been flaunted were actually followed. She even went ahead to demonstrate that there were no irregularities since the forms 34B that had been filed in court in response to the petition had all the security features that a court sunctioned audit had found to be lacking.

In her presentation, Njoki Ndung’u said that she took time to go to through copies of some of forms 34B that had been identified as lacking security features. This, she said, was in line with the recommendations by Counsel Fred Ngatia who suggested that copies of the forms IEBC presented to the court had security features, but apparently copies that IEBC gave the Petitioners and the copies IEBC availed for scrutiny under the orders of the Supreme Court lacked several security features. Njoki Ndung’u, after her scrutiny, found the suggestion by Fred Ngatia to be true – that the court filed forms 34B were genuine and authentic.

At the juncture where Njoki Ndung’u found that the forms submitted to the Supreme Court had security features, I wondered, “so where did IEBC get the copies that lacked security features from?” The forms in question are forms 34B that were generated at Constituency Tallying Centres (CTCs). In each CTC, Constituency Returning Officers compiled data given to them from Polling Station Presiding Officers in forms 34A, and each CRO generated one original form 34B. It is copies of this original form 34B that were presented to NASA, Jubilee, Supreme Court as response to the Petition, and to Supreme Court for scrutiny purposes. It is therefore expected that all the copies of forms 34B should be the same given that they were copies from the same original source documents.

It is for the argument above that I wrote:

The question of IEBC handing over to Supreme Court two different sets of forms 34B, one set with security features and another without, was posed by Sophia Wanuna to Fred Ngatia, a question that Fred Ngatia answered to suggest that the Supreme Court Register forged fake forms 34B, presented those forged forms for scrutiny, and derived a damning report from that scrutiny. This, according to Fred Ngatia, she could do in full glare of the media, Jubilee agents, and IEBC staff who together with Supreme Court staff scrutinized the forms at Milimani Law Courts.

Circumstances prior, during and post scrutiny of forms 34B at Milimani Law Courts speak for the impossibility of Anne Amadi forging forms 34B, so I and like minded Kenyans view the findings from the Anne Amadi’s scrutiny to be the genuine findings. This then brings into question the judgement by Njoki Ndung’u. Did she really do a scrutiny as she alleges? Is it true that all the forms IEBC presented to Supreme Court had all security features? If so, why didn’t IEBC and Chebukati lawyers bring this to the attention of the court whenever the authenticity of the forms were brought into question? The answers to these questions can only be three, either Njoki Ndung’u did not scrutinise the forms, scrutinised them and found them wanting but went ahead to lie that they were authentic, or planted her own genuine forms 34B. Whichever the answer is, she ought to be investigated as to how she arrived at her findings.