Supreme Court Judgment on the Presidential Election Petition 2013

The Kenyan Supreme Court released the full judgment (PDF) following the justices’ unanimous dismissal of Raila Odinga’s petition challenging the election of President Uhuru Kenyatta.

Below are some sections of the ruling.

This Judgment, therefore, may be viewed as a baseline for the Supreme Court’s perception of matters political, as these interplay with the progressive terms of the new Constitution. It is clear that this Judgment, just as it is important to all Kenyans in political terms, is no less important to the Court itself, in terms of the evolution of jurisprudence in the domain of public affairs. It is particularly so, in the light of Section 3(c) of the Supreme Court Act, which vests in this Court the obligation to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”

…the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt…

…the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time. It is, indeed, likely that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.

In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.

As I have said before on this blog, the justices had to make both legal and political considerations with regard to this case. I am not a lawyer and cannot comment on the legal aspects of the case/ruling. With regard to the political considerations, I think the court showed its conservative hand – opting for a strategy of letting Kenya’s new institutions grow on their own without strict supervision from the courts; notice the many references to public opinion and perception in the ruling. That is how the court interprets its mandate to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth,” I think.

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