My view is very simple. The Supreme Court established a philosophy on September 1, which is well grounded in the Constitution, that an election is a process.
Every component of that process is important. There is no component that is greater than the other. They all constitute a process in its entirety and if the process is right, then the results are OK. If the process is flawed, then the results are irredeemably tainted.
If we are to go with that philosophy, I think the case before the Supreme Court now is slightly stronger than the case that was there in August. This is because the IEBC has engaged in very, very serious breaches of the Constitution. They did what was convenient as opposed to what was legally required. If the Court applies that philosophy of an election being a process, the petitions will succeed.
There are various legal questions on which I don’t see the Supreme Court deviating from its well-established jurisprudence. One is the fidelity to the Constitution, that in conducting the election, you must strictly comply with the dictates of the supreme law, before anything else. And the question you ask yourself is whether the election conducted by Chebukati on the 26th of October was in compliance with the Constitution. And the answerer is No.
Two, if you look at the question of the electoral system in Kenya as of the 26th of October, it was guided by Section 44 and Section 39(1C). The law says results should be electronically transmitted in a prescribed form to the constituency and to the national tallying centre. Did the IEBC comply with that? The answer is No. IEBC resorted to a manual process that is not contemplated in law.
Remember the election laws were not in effect at the time that the August 8 election was conducted. Those laws cannot apply to an election that was conducted under a different electoral system. This election is tested against the laws that were in force as of the 26th of October.
Then there is candidate clearance. The IEBC had Jirongo’s name on the ballot paper long before they gazetted him as a candidate. So they were not even sure which candidates they were managing for purposes of the repeat election. The IEBC voter register remained a moving target. They could not even trail the number of people who turned out to vote.
Magaya is law don and NASA CEO
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