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Njoki Ndung’u statement that has excited Jubilee supporters

A statement in the dissenting judgement delivered by Justice Njoki Ndung’u on the August 8th Presidential petition has been resurfaced and caused excitement among Jubilee supporters.

In her 400 plus dissenting argument, Justice Ndung’u gave a number of hypotheses that suggest President Uhuru Kenyatta’s second win of October 26th election could be upheld by Supreme Court.

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Among the hypothesis considered was that of a scenario where a few constituencies failed to vote as a result of a violence.

Since the just concluded-election,Jubilee Party supporters have been groaning about failure by the IEBC to conduct elections in about 25 constituencies from Nyanza ,and having reservations whether that could void President Kenyatta’s election for the second time.

However, paragraph 680 of Ndung’u dissenting opinion has suggested that the Supreme Court was likely to look at the impact of constituencies that failed to vote, against the total outcome of the votes.

That section of her dissenting opinion has been widely shared on social media.

The electoral body,led by Chair Wafula Chebukati declared President Uhuru winner of the repeat poll despite not holding the election in 25 constituencies.He however said the total number of votes from those regions could not affect the total tally hence was obliged by law to go ahead and announce the winner.

Here is part of Judge Njoki Ndungu’s statement of addressing the above scenario.

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Let us put this in context in a hypothetical situation: assuming there is a Constituency with 55,000 registered voters. On Election Day, two candidates supporters in that Constituency create a violent atmosphere where voters are intimidated, pulled out from stations, agents‘ vehicles torched and election officials harassed. The situation is such that there can be no elections in that constituency.

But in all other Constituencies nationwide, the election has proceeded properly, with the fore-running presidential candidate obtaining more than half of all the votes cast in the election and at least twenty-five of the votes cast in each of more than half of the Counties. The votes from that Constituency, even if cast, would not affect the constitutional threshold necessary to declare the results of the election.

Can we nullify that entire election because there was violence, intimidation and voters in that Constituency did not vote? That is the test the Court should apply and it would consider the following questions:

  1. Did the irregularities or illegalities affect the result? Would the results of the election have reduced from more than half of the votes cast in the election? Would it have affected at least twenty five per cent of the votes cast in each of more than half of the Counties?
  2. (ii) Should the Court assess this test in the affirmative, then it should nullify the election. However, if the constitutional mathematical threshold is not affected, nullifying the entire election would have the effect of disenfranchising voters who did not vote in that constituency. What ought the court do?

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