Supreme Court Decision Objective Views

Kigui

Village Elder
#1
I have seen a lot of vitriol and hate mongering about this decision. Supposing we suspend emotions for a while and discuss this issue objectively.

Im not a lawyer but I believe that a decision of this magnitude should be understandable to the ordinary mwananchi. The honourable judges failed to tell us how they arrived at this decision, a short summary should have sufficed.

Now to the substance of the case. NASA lawyers argued that the question that the court out to answer was whether the due process was followed as prescribed in the constitution and the supporting legislation. IEBC and jubilee presented the argument that while strict adherence to the rules is required, it not possible to achieve it perfectly. They argued that you can only annul results if and only if the anomalies significantly affected the results. In other words NASA argument was that the process has to be perfect while the respondent's was than numbers matter.

The proof of burden was also argued in court. There are generally two levels of proof. Proof beyond reasonable doubt, its used in criminal cases lest you send the innocent to jail. Balance of probability test is used in civil cases where 'he said she said' cases are more common. Most Commonwealth countries have a somehow fuzzy test between the two that is mostly used for electoral disputes. NASAs position was that the Kenyan court adopts the balance of probability(lower burden), while the respondents wanted the court to adopt the higher standard (between beyond doubt and balance of probability).

We don't have the full judgement to work with here. However, we can make the following observations in reverse order.

1. Declaration of Presidential results was faulty because of an errors in adding up 34B forms. You remedy this by repeating this exercise or
2. There were errors in filling or adding up forms 34B. You remedy this by repeating this exercise across all offending consitiencies
3. There were errors in forms 34A. You remedy by retallying the results.
4. There were wide spread irregularities such that we can't tell who voted on a particular voting station. Remedy this by repeating the exercise in the offending polling stations.

Now, the justices have made their decision. Supposing you were neutral in this contest, what would be your observation? Which points of law resonate with you? Do you think the remedies suggested by the author are sufficient? Please try to explain your reasoning.

Tafadhali, let's keep it non-emotional.
 

4makind

Village Elder
#5
I have seen a lot of vitriol and hate mongering about this decision. Supposing we suspend emotions for a while and discuss this issue objectively.

Im not a lawyer but I believe that a decision of this magnitude should be understandable to the ordinary mwananchi. The honourable judges failed to tell us how they arrived at this decision, a short summary should have sufficed.

Now to the substance of the case. NASA lawyers argued that the question that the court out to answer was whether the due process was followed as prescribed in the constitution and the supporting legislation. IEBC and jubilee presented the argument that while strict adherence to the rules is required, it not possible to achieve it perfectly. They argued that you can only annul results if and only if the anomalies significantly affected the results. In other words NASA argument was that the process has to be perfect while the respondent's was than numbers matter.

The proof of burden was also argued in court. There are generally two levels of proof. Proof beyond reasonable doubt, its used in criminal cases lest you send the innocent to jail. Balance of probability test is used in civil cases where 'he said she said' cases are more common. Most Commonwealth countries have a somehow fuzzy test between the two that is mostly used for electoral disputes. NASAs position was that the Kenyan court adopts the balance of probability(lower burden), while the respondents wanted the court to adopt the higher standard (between beyond doubt and balance of probability).

We don't have the full judgement to work with here. However, we can make the following observations in reverse order.

1. Declaration of Presidential results was faulty because of an errors in adding up 34B forms. You remedy this by repeating this exercise or
2. There were errors in filling or adding up forms 34B. You remedy this by repeating this exercise across all offending consitiencies
3. There were errors in forms 34A. You remedy by retallying the results.
4. There were wide spread irregularities such that we can't tell who voted on a particular voting station. Remedy this by repeating the exercise in the offending polling stations.

Now, the justices have made their decision. Supposing you were neutral in this contest, what would be your observation? Which points of law resonate with you? Do you think the remedies suggested by the author are sufficient? Please try to explain your reasoning.

Tafadhali, let's keep it non-emotional.
Good points, though Wanjiku is supposed to take the ruling without any questions. Maraga and Co. are above any criticism. If you do so, you are eroding the independence of the judiciary
 

Kigui

Village Elder
#7
Good points, though Wanjiku is supposed to take the ruling without any questions. Maraga and Co. are above any criticism. If you do so, you are eroding the independence of the judiciary

I was trying to think through the judges decision making process. I'm looking for those opposed to my analysis to come forward.
 

Nyamgondho

Village Elder
#10
Tafadhali, let's keep it non-emotional.
Sijasoma bado lakini nimeona hii huko mwisho...it's not possible this is an emotive issue. Just read @Art, @Father Figure or @Purple's comments and see the level of frustration in their posts. People like @spear and @Dunya and to a lesser extent @gashwin are not even commenting. Watu kama @ranny na @kwido wameshapasuka tayari. Let me now read your post and comment. Sande

Edit: Tupatane kwa debe
 

Kigui

Village Elder
#13
Sijasoma bado lakini nimeona hii huko mwisho...it's not possible this is an emotive issue. Just read @Art, @Father Figure or @Purple's comments and see the level of frustration in their posts. People like @spear and @Dunya and to a lesser extent @gashwin are not even commenting. Watu kama @ranny na @kwido wameshapasuka tayari. Let me now read your post and comment. Sande

Edit: Tupatane kwa debe
We can't throw hands in the air in despair. Let's reason together. Naomba usome my short argument urudi hapa tuone vile tunaweza kusonga mbele.
 

Kigui

Village Elder
#15
I think it's best we await the detailed judgement because trying to make sense of the ruling without it is almost impossible
We could always argue the merits and law even without the final judgement. We have most of the facts that have been made public.
 

Mathaais

Village Chief
#19
Maraga clearly had an axe to grind with the Jubilee leadership after they told him off during the campaigns and insisted the elections must be held on the date stipulated in the constitution.
 

Soprano

Village Elder
#20
I was trying to think through the judges decision making process. I'm looking for those opposed to my analysis to come forward.
The court had been told in no uncertain terms that this case was put their way as a chance for them to atone the sins they committed in 2013. They did not disappoint.


Night of intrigues: Uninvited guests, unwanted calls and a short-lived tie
By Sunday Standard team | Saturday, Sep 2nd 2017 at 23:13


A night of long knives, a missing star lawyer and stubborn judges who wouldn’t relent.

This is the sum of the intrigues that preceded the historic Supreme Court decision invalidating Kenya’s August 8 presidential election.

On the morning the court delivered its decision, one of the star lawyers for one of the respondents was missing from the courtroom.

Unable to come to terms with losing the case after deploying all his wits to the defence, he did not show up alongside his political associates.

In contrast, the petitioner’s lawyers literally swung into the courtroom, their benefactors in tow, beaming with pregnant smiles. The court’s decision had somehow leaked to boardrooms the night before.

“We knew we were done in by Thursday evening. There was no point (of turning up at Supreme Court),” a Jubilee operative who participated in the process and who kept off the court told Sunday Standard.

At a city hide-out hotel on Thursday night, weary judges switched off their phones to ward off stray calls from influencers and operatives of the parties after braving them for hours. One of them is said to have faced off with a delegation sent out to appeal to their mercies and told it off in no uncertain terms.

Initial reports indicate that of the six judges in the conference, a pair had already made up their minds to uphold the election while two were determined to invalidate it. The two undecided eventually spread themselves even, leading to a 3:3 situation. But not for long.

In what lawyers in the petition attribute to lobbying by colleagues but denied by those who were present, one of the judges switched sides on conscience grounds to support the invalidation of the election.

The Chief Justice, it is said, had initiated the “vote on conscience” movement which afflicted his deputy and spilled over to two colleagues. At the vote, the judges were also weighed down by criticism of the court’s 2013 verdict.

Three of the four majority judges who invalidated the election — Chief Justice David Maraga, Deputy CJ Philomena Mwilu and Justice Isaac Lenaola — are new recruits from the 2013 bench.

The other judge Justice Smokin Wanjala sat in the 2013 petition.

As the clock struck midnight, the minority judges began writing their dissenting briefs.

The majority judges also concluded their small brief and began to worry on the impact of not delivering the full judgment the following day.

On the morning of the judgment day, Maraga spoke to their ill colleague Justice Ibrahim Mohamed to inform him of the decision and to wish him well. Ibrahim had been taken ill earlier in the week.

When he walked into the courtroom 21 minutes past 11 with his colleagues, Maraga found a tense-packed atmosphere.

Siaya Senator and NASA lead counsel James Orengo happily introduced his team, reading them one by one in line with the tradition of the court.

In contrast, lawyers for the respondents appeared subdued, so much so that Independent Electoral and Boundaries Commission (IEBC) lead counsel Paul Muite attempted to skip introducing his colleagues on account of saving time.

“The first and second respondents are represented by the same team of lawyers whose names you have on record already. I think in the interest of saving time....” Muite said before he was stopped on his tracks and ordered by the CJ: “Read them out.”

He proceeded to look out for the list and to read them aloud as ordered. Ahmednasir Abdullahi for President Uhuru Kenyatta also introduced his team and announced that his colleague Fred Ngatia would be joining them later.

“Before I read the determination, I want to say this. The greatness of a nation lies in its fidelity to its constitution and its strict adherence to the rule of law, and above all, the fear of God,” Maraga signalled the events of the day.

Other reports painted the picture of judges under immense pressure, fall out among legal teams involved in the process and disappointment with a section of the bench. The strong disapproval of the judges by President Kenyatta in his Burma market roadside address exposed the latter.
 

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