Maraga’s Team Made Major Errors in Final Judgement

The Supreme Court ruling erred in a major way that compromised...

Some are satisfied with the lengthy judgement that was released in detail yesterday while others are aggrieved. Those satisfied are evidently Nasa supporters while those not happy are majorly from the Jubilee side.

Four Supreme Court judges namely Chief Justice David Maraga, his deputy Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola ruled that the election was not conducted according to the law and the constitution.

However, Justices Njoki Ndung’u and Jackton Ojwang’ dissented stating that the petitioner’s case lacked merit. These two found that the said irregularities were insufficient to warrant the nullification of an election.

While it is true there were some gross irregularities, judges ought to have considered the wider scope of the case.

The merit of the ruling depended solely on regulations stipulated in the Constitution and the Elections Act. However the judges departed wholly from the burden of proof. The burden of proof was the basis used to rule the 2013 case upholding Uhuru Kenyatta’s win.

It is therefore not accurate that a court could annul an election based on some mistakes.

It is very contradictory when the court says that the irregularities were deliberate yet found no one culpable. The court says that it was “institutional failures”. I am at pains trying to understand that concept.

That basis alone is enough to poke holes on the ruling. We therefore form the conclusion as Justice Ojwang reiterated, that the ruling was more political than legal. I concur with Justice Jackton that they based their ruling on emotions and possible political prejudices.

Justice Njoki Ndung’u said that she analysed all the Form 34Bs and found that they were form and content. Yet the majority of the judges made their decision based on a sample of the forms.

Why did the judges who overturned the election fail to consider evidence provided by the IEBC? Justice Njoki Ndung’u faulted her colleagues on the same.

As much as the Judiciary wants to assert its independence, they should not depart from their legally constituted responsibilities. Their role is to rightfully interpret the constitution and the law.

The bare minimum that they have placed as a basis for deciding an election petition is insufficient. Critics have even said that a law intern can easily overturn a general election.

We are yet to witness a perfect election in the world.  However the Supreme Court demands a perfect one. Then let us be the first to give a 100 per cent flawless election.

The ruling was therefore political and sorely inaccurate.

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