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.
- Declaration of Presidential results was faulty because of an errors in adding up 34B forms. You remedy this by repeating this exercise or
- There were errors in filling or adding up forms 34B. You remedy this by repeating this exercise across all offending consitiencies
- There were errors in forms 34A. You remedy by retallying the results.
- 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.