The Supreme Court has delivered its full ruling on the invalidation of the August 8th presidential election.
Reading the judgement of the majority, the Supreme Court highlighted some of the key reasons they overturned the poll.
The judges ruled that IEBC defied the order to open its servers for audit, saying this could have helped the commission disapprove Nasa’s claims that its servers were hacked. It was the view of the majority judges that electoral commission chairman Wafula Chebukati failed to explain why presidential election results were not transmitted in the prescribed manner. It also ruled that it was the mandate of the commission to ensure that the system of voting, counting and tallying of results is verifiable and accurate.
The majority further found that Nasa proved that IEBC announced the presidential winner before receiving all 40,883 Forms 34As and thus used forms with dubious authenticity.
The court also found no evidence that President Uhuru Kenyatta used the release funds IDPs as a campaign tool to entice voters.
The Judges, therefore, said that IEBC must henceforth hold subsequent elections in conformity to the law.
They further note that a random scrutiny of 4,299 Forms 34As indicated there were widespread discrepancies.
"The Independent Electoral and Boundaries Commission (IEBC) flouted the law and the constitution to the extent that they become the law themselves.
On our part, elections is not just an event but a whole process, this is also described in IEBCs handbook," DCJ Mwilu Said. She added: "IEBC did not verify results that had been electronically and systematically transmitted from the polling stations before announcing which violated the Constitution and the law,".
"IEBC CEO Ezra Chiloba admitted that IEBC was not in a position to supply the petitioner with all Form 34As, three days after results were announced and insisted presidential election was based on Form 34B which were all submitted. This raised questions. Apart from duty to verify, IEBC has duty to ensure the system of voting should be simple, accurate, accountable and secure. Numbers must just add up. Kenyans endured long hours and cast vote then after that the system became opaque. We can't prove that Uhuru Kenyatta got majority votes," Mwilu noted.
Reading the majority judgement, Deputy Chief Justice Philomena Mwilu stated that the refusal of the IEBC to give access to servers meant that Opposition was right about hacking claims. "The system was compromised and contaminated or the IEBC interfered with the data and refused to accept that it had bungled the system," she said. "Our order of scrutiny was a golden opportunity for IEBC to discredit the petitioner's claims but they disobeyed the court order."
She also said the that IEBC "contemptuously disobeyed" the court order which she noted was "critical". "IEBC should have had backups. We gave the petitioner a read-only access but there was clear reluctance on the IEBC's part that they did not want to give the information."
"(From a random sample) out 291 forms, 56 had no watermarks features while 31 did not bear serial numbers and a further 5 were not signed at all and 2 were only stamped by returning officers but not signed, in addition a further 32 forms were not signed by agents. The above indices put accountability of forms in question. The results of August 8 election cannot pass the test of authenticity and we have to nullify them despite the numbers," Chief Justice David Maraga said while reading the majority ruling.
Chief Justice David Maraga agreed with Deputy Chief Justice Philomena Mwilu, Smokin Wanjala and Isaac Lenaola that the election was not conducted in accordance with the dictates of the constitution and absolved President Uhuru Kenyatta from any blame in the judgement delivered on September 1st.
They ordered IEBC to conduct a fresh election within 60 days from the day the ruling was delivered.
Justices Jackton Ojwang’ and Njoki Ndung’u, however, dissented, stating that the petitioner, failed to prove allegations that the polls were rigged in favour of President Kenyatta. The two ruled that the polls were free, fair and credible as described by international observers.