Kenya Opposition Claims Broad and Vague, Says Justice Ojwang
THURSDAY SEPTEMBER 21 2017
Kenya Daily Nation
A National Super Alliance supporter (left) shouts at a Jubilee supporter near the Supreme Court of Kenya premises on September 20, 2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP
In Summary
The judge, in his full ruling read in court Wednesday, argued that Nasa’s arguments were anchored on generalities and not factual evidence and hence failed the test of burden of proof.
To him, it was the respondents, the Independent Electoral and Boundaries Commission and its chairman, Wafula Chebukati — who were enjoined in the case as the first and second respondents — who provided better evidence to justify the credibility of the elections.
The judge noted that it was, therefore, prudent for the majority judges who ruled against the respondents to have asked for a recount of the votes before annulment.
By SILAS APOLLO
By SAM KIPLAGAT
Supreme Court judge Jackton Ojwang’, in his dissenting opinion on the election petition, said Nasa leader Raila Odinga failed to prove his case after making broad and vague claims.
The judge, in his full ruling read in court Wednesday, argued that Nasa’s arguments were anchored on generalities and not factual evidence and hence failed the test of burden of proof.
Justice Ojwang’ noted that while the weight of the petitioner’s case lay on credibility, transparency and credibility of the results relaying process, Nasa largely made broad claims on alleged wrongdoing on the part of the electoral commission.
The petitioner, he argued, instead invited the court to ascertain the scope of its evidence.
To him, it was the respondents, the Independent Electoral and Boundaries Commission and its chairman, Wafula Chebukati — who were enjoined in the case as the first and second respondents — who provided better evidence to justify the credibility of the elections.
FACTS
He noted that however profound a legal argument might be before the court, it must be anchored on the facts of the case. The evidence need to be credible, not objective unless it is from an expert witness, he added.
“The Constitution of Kenya safeguards the rule of law, democracy and the will of the people,” said Justice Ojwang’. “It is clear to me, beyond peradventure, that there is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will.”
He went on: “I cannot but therefore conclude that the facts based on the evidence of the petitioner’s case are more than weak. The Constitution states that justice shall be served without undue regard to procedural technicalities.”
Nasa had pegged its petition on the credibility, transparency and the integrity of the results relaying process from polling stations to the national tallying centre. The coalition relied on the authenticity of Forms 34A and 34B to argue that the results that IEBC was streaming were unverified and therefore, illegal.
BURDEN OF PROOF
And on whether the election was compromised by intimidation and the compromise of voters as argued by Nasa, Justice Ojwang’ opined that the petitioner failed to accompany satisfying evidence, and in essence, undermined the discharge of burden of proof.
The respondent, the judge said, did not contravene any provision of the Constitution or any other statutes of law. He said the IEBC conducted the elections in a free, fair and transparent manner, including consultation of parties, secret voting, as well as the counting of results in the presence of all agents as required by law.
The judge noted that it was, therefore, prudent for the majority judges who ruled against the respondents to have asked for a recount of the votes before annulment.
The voter, he argued, had no problem marking the ballot, which was secure, transparent and accountable.
“The majority judges appear to have taken leave from their juristic obligation to interpret the constitutional provisions cited by the petitioner,” said Justice Ojwang’.
EVIDENCE
The judge said the majority judges had the greater burden to prove whether the petitioner had a case that would warrant a nullification of the results based on evidence prepared.
He said the top court, through the Constitution, was given the interpretative mandate, and as such, ought to have applied the burden of proof to the case presented by Nasa.
The respondents, said Justice Ojwang’, satisfying all the constitutional requirements in carrying out its mandate to preside over a free and fair elections and the claims of non-compliance did not add up.
It was his view that specific and credible evidence on the case, which were relied on in court with regard to the August elections, were all provided by the respondent, as opposed to the petitioner.
Kenya Daily Nation
A National Super Alliance supporter (left) shouts at a Jubilee supporter near the Supreme Court of Kenya premises on September 20, 2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP
In Summary
The judge, in his full ruling read in court Wednesday, argued that Nasa’s arguments were anchored on generalities and not factual evidence and hence failed the test of burden of proof.
To him, it was the respondents, the Independent Electoral and Boundaries Commission and its chairman, Wafula Chebukati — who were enjoined in the case as the first and second respondents — who provided better evidence to justify the credibility of the elections.
The judge noted that it was, therefore, prudent for the majority judges who ruled against the respondents to have asked for a recount of the votes before annulment.
By SILAS APOLLO
By SAM KIPLAGAT
Supreme Court judge Jackton Ojwang’, in his dissenting opinion on the election petition, said Nasa leader Raila Odinga failed to prove his case after making broad and vague claims.
The judge, in his full ruling read in court Wednesday, argued that Nasa’s arguments were anchored on generalities and not factual evidence and hence failed the test of burden of proof.
Justice Ojwang’ noted that while the weight of the petitioner’s case lay on credibility, transparency and credibility of the results relaying process, Nasa largely made broad claims on alleged wrongdoing on the part of the electoral commission.
The petitioner, he argued, instead invited the court to ascertain the scope of its evidence.
To him, it was the respondents, the Independent Electoral and Boundaries Commission and its chairman, Wafula Chebukati — who were enjoined in the case as the first and second respondents — who provided better evidence to justify the credibility of the elections.
FACTS
He noted that however profound a legal argument might be before the court, it must be anchored on the facts of the case. The evidence need to be credible, not objective unless it is from an expert witness, he added.
“The Constitution of Kenya safeguards the rule of law, democracy and the will of the people,” said Justice Ojwang’. “It is clear to me, beyond peradventure, that there is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will.”
He went on: “I cannot but therefore conclude that the facts based on the evidence of the petitioner’s case are more than weak. The Constitution states that justice shall be served without undue regard to procedural technicalities.”
Nasa had pegged its petition on the credibility, transparency and the integrity of the results relaying process from polling stations to the national tallying centre. The coalition relied on the authenticity of Forms 34A and 34B to argue that the results that IEBC was streaming were unverified and therefore, illegal.
BURDEN OF PROOF
And on whether the election was compromised by intimidation and the compromise of voters as argued by Nasa, Justice Ojwang’ opined that the petitioner failed to accompany satisfying evidence, and in essence, undermined the discharge of burden of proof.
The respondent, the judge said, did not contravene any provision of the Constitution or any other statutes of law. He said the IEBC conducted the elections in a free, fair and transparent manner, including consultation of parties, secret voting, as well as the counting of results in the presence of all agents as required by law.
The judge noted that it was, therefore, prudent for the majority judges who ruled against the respondents to have asked for a recount of the votes before annulment.
The voter, he argued, had no problem marking the ballot, which was secure, transparent and accountable.
“The majority judges appear to have taken leave from their juristic obligation to interpret the constitutional provisions cited by the petitioner,” said Justice Ojwang’.
EVIDENCE
The judge said the majority judges had the greater burden to prove whether the petitioner had a case that would warrant a nullification of the results based on evidence prepared.
He said the top court, through the Constitution, was given the interpretative mandate, and as such, ought to have applied the burden of proof to the case presented by Nasa.
The respondents, said Justice Ojwang’, satisfying all the constitutional requirements in carrying out its mandate to preside over a free and fair elections and the claims of non-compliance did not add up.
It was his view that specific and credible evidence on the case, which were relied on in court with regard to the August elections, were all provided by the respondent, as opposed to the petitioner.
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