INTRODUCTION
[1] On the 4th of March, 2013, Kenya held its first General Election since the promulgation of the new Constitution on 27th August 2010. The Constitution was a culmination of the efforts of the Kenyan people to bring about a more progressive governance set-up. Kenyans affirmed the new Constitution as the supreme law of the Republic, which binds all persons and all State organs.
[2] All powers to be exercised in public functions, therefore, must flow from the Constitution. Indeed, judicial authority, under Article 159 (1) of the Constitution, is derived from the people and vests in, and shall be exercised by the courts and tribunals established under this Constitution. Additionally, national values and principles of governance, as set out in Article 10 of the Constitution, underpin the conduct of governance in every respect.
[3] The Independent Electoral and Boundaries Commission (IEBC) was created by Article 88 of the Constitution, for the management of the country’s electoral processes. It is conferred with the responsibility for conducting free, fair and transparent elections.
[4] The elections of 4th March, 2013 were the first in Kenya to attempt to use electronic facilitation. The IEBC, at various stages of the election, deployed the following technologies: (i) Biometric Voter Registration (BVR) during voter registration; (ii) Electronic Voter Identification (EVID) on polling day; and (iii) Results Transmission System (RTS) during tallying.
[5] On 19th November, 2012, the IEBC began a voter registration exercise, which culminated in approximately 14 million voters being registered. On 4th March, 2013 voters went to the polls in significant numbers. A record 86% of registered voters were reported to have participated in the General Elections. After the polls officially closed on that day, the IEBC began the process of vote tallying, and the results were then broadcast to the public.
A. DECLARATION OF RESULTS, AND THE ENSUING PETITIONS
[6] On 9th March, 2013, five days after the General Elections were held, the Chairman of the IEBC, Mr. Issack Hassan (second Respondent), announced that Mr. Uhuru Kenyatta had received 6,173,433 votes out of a total of 12,338,667 (50.07% of all the votes cast), while Mr. Raila Odinga (the petitioner) had received 5,340,546 votes (43.31% of the votes cast). Pursuant to Article 138(4) of the Constitution, Mr. Hassan declared Mr. Uhuru Kenyatta, the President-elect.
[7] Subsequent to the announcement, three petitions challenging the results of the Presidential elections were filed at the Supreme Court.
(i) Petition No. 3 of 2013
[8] On 14th March 2013, Petitioners Moses Kiarie Kuria, Denis Njue Itumbi and Flowrence Jematiah Sergon filed a petition against the IEBC as the 1st respondent, and Mr. Isaack Hassan. The basis of the petition was that the respondents’ decision to include rejected votes in the final tally had a prejudicial effect on the percentage votes won by Mr. Kenyatta. The petitioners asserted that the secondrespondent’s actions were in contravention of Articles 36(b) and 138(c) of the Constitution, and Rule 77(1) of the Elections (General) Regulations, 2012.
(ii) Petition No. 4 of 2013
[9] The second Petition was filed by Gladwell Wathoni Otieno and Zahid Rajan on 16th March, 2013, against the IEBC as the 1st respondent, Mr. Issack Hassan as the 2nd respondent, Mr. Uhuru Kenyatta as the 3rd respondent and Mr. William Ruto as the 4th respondent. The Petitioners aver that the election was not conducted substantially in accordance with the Constitution, or the Elections Act and the governing Regulations.
[10] In particular, the Petitioners aver that the IEBC failed to establish and maintain an accurate Voter Register that was publicly available, verifiable and credible as required by Articles 38(3), 81(d), 83(2), 86 and 88(4) of the Constitution, sections 3, 4, 5, 6, 7 and 8 of the Elections Act, 2011 and the Elections (Registration of Voters) Regulations, 2012.
[11] The Petitioners, in addition, claim that the true number of registered voters is unknown and, therefore, the IEBC did not have an accurate voters’ register. They assert that the 1st and 2nd respondents repeatedly changed the official number of registered voters. The Petitioners further assert that the absence of a credible Principal Voter Register vitiates the validity of the Presidential elections.
[12] The Petitioners further assert that the electoral management system adopted by the IEBC was complex and had many shortfalls, contrary to the constitutional requirement that it be a simple, accurate, verifiable, secure, accountable and transparent system. In particular, the Petitioners aver that the IEBC failed to meet the mandatory legal requirement to electronically transmit election results. The Petitioners aver that the failure of the electronic system put in place by the IEBC and their failure to electronically transmit election results affected the validity of the Presidential elections.
[13] The Petitioners aver that the 1st and 2nd respondents did not discharge their obligation under the Constitution, because the tallying and verification of the results did not happen at the polling stations; there was no electronic transmission of provisional results; and party agents were excluded from the National Tallying Centre.
[14] The Petitioners further aver that the 1st Respondent violated the Constitution and the Public Procurement and Disposal Act (Cap. 412C, Laws of Kenya), by awarding the tender to an unqualified bidder who then supplied devices that did not work properly, or simply failed, on election day.
(iii) Petition No. 5 of 2013
[15] The third Petition was filed by Mr. Raila Odinga on 16th March, 2013against the IEBC as the 1st Respondent, Mr. Isaack Hassan as the 2nd Respondent, Mr. Uhuru Kenyatta as the 3rd Respondent and Mr. William Ruto as the 4th Respondent. The Petitioner avers that the electoral process was so fundamentally flawed that it precluded the possibility of discerning whether the presidential results declared were lawful. The Petitioner seeks relief from this Court pursuant to Articles 2, 6, 10, 38, 73, 82, 86, 259, 260 of the Constitution; the Independent Electoral and Boundaries Commission Act, 2011 (Act No. 9 of 2011); Regulations 59(1), 79 and 82 of the Elections (General) Regulations 2012; the Elections Act, 2011 (Act No. 24 of 2011) and Sections 4 and 25 of the IEBC Act, 2011.
[16] The Petitioner avers that the first and second Respondents did not carry out a valid voter registration, in contravention of Article 83 of the Constitution, and Section 3(2) of the Elections Act, 2011 because their official tally of registered voters changed several times. This resulted in the final total number of registered voters differing materially from what was in the Principal Register.
[17] The Petitioner also avers that the first respondent failed to carry out a transparent, verifiable, accur
ate and accountable election as required by Articles 81, 83 and 88 of the Constitution. The
Petitioner asserts that there were several anomalies that occurred in
the process of manual tallying, such as: the votes cast in several
polling stations exceeding the number of registered voters; differences
between results posted and the results released by the first Respondent;
the use of unsigned Form 36 to declare the results.
[18] The Petitioner further avers that the electronic systems acquired and adopted by the first Respondent to facilitate the General Election were poorly designed and implemented, and destined to fail. Due to the failure of the system, the first Respondent was unable to transmit the results of the elections, in contravention of Regulation 82 of the Elections (General) Regulations, 2012.
(iv) Consolidation of Petitions
[19] On 25th March 2013, by the directions of the Supreme Court, the three
petitions were consolidated. The Court further ordered that the file for Petition No. 5 be deemed to be the pilot file for the recording of all proceedings and for rendering the final decision.The Court gave the following directions with respect to parties in the consolidated petitions: the Petitioner in Petition No. 5 of 2013 to be referred to as the first Petitioner; the Petitioners in Petition No. 4 of 2013 to be jointly referred to as the second Petitioner; the Petitioner in Petition No. 3 of 2013 to be jointly referred to as the third Petitioner; the respondents to remain as in Petition No.5.
B. AGREED ISSUES FOR TRIAL
[20] Prior to the pre-trial conference, the Court drafted a summary of the issues and served this upon the parties for scrutiny and consideration. This was the basis of agreement on issues for trial, which may be summarized as follows:
1. Whether the 3rd and 4th Respondents were validly elected and declared as President-elect and Deputy President-elect respectively, in the Presidential elections held on the 4th of March, 2013. [This is the crux of the case].
2. Whether the Presidential election held on March 4th, 2013 was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all relevant provisions of the law.
3. Whether the rejected votes ought to have been included in determining the final tally of votes in favour of each of the Presidential-election candidates by the 2nd Respondent.
What consequential declarations, orders and reliefs this Court should grant, based on the determination of the Petition