“Most importantly, the date for the General Election provided by Article 101 and 136 of the Constitution is cast in stone,” they said.
The judges further absolved the electoral agency of any blame, saying that it has already put in place regulations, to act as a backup in case the electronic system fails on the Election Day.
“The court had to consider the impact in case the exclusive electronic systems fails. It would throw the entire election into jeopardy and imperil our democracy,” the said.
The judges added that this would run counter to the political rights of millions of Kenyans as enshrined in the Constitution.
Further, the judges found that 69 and 83 of the elections regulations 2012, amounted to complimentary, mechanism envisaged by Section 44 (a) of the Elections Act.
The coalition had argued that IEBC was mandated to make the regulations with the approval of Parliament within 60 days before the General Election, but this argument was also rejected.
“They have failed to put in place the complementary system, consult relevant stakeholders or even engage the public to come up with the said system,” NASA lawyer Paul Mwangi had argued.
But the judges said the fact that these regulations were taken though Parliament, is evidence enough of public participation because the MPs are representatives of the people.
The mechanism must be “simple, accurate, verifiable, secure, accountable and transparent” in line with Article 38 of the Constitution.
“In the end the court found that the entire petition was devoid of merit. [SIZE=5]NASA was also slapped with cost of the suit to IEBC and Jubilee.[/SIZE]
The poll agency’s CEO Ezra Chiloba had said voters would be identified electronically, and that the manual system would only be used in the event the system failed.
This is what you call populist rulings. Judicial interpretation pressed by time. If the constitution wanted to refer to parliament as the public, it would simply have done so. Participation by parliament is not participation by the public. Two very different things. There is participation by the public when choosing the Chief Justice. This was separate from parliamentary process of the same downstream.
But all in all, we agreed to have all our disputes resolved by the courts. So however much we don’t like the rulings and however faulty they are, so be it. 8/8 is the moment of truth. And hopefully the backup systems in place are tamper proof.
Where are those now who were triumphantly wetting themselves giggling at how senior counsel Orengo is teaching other lawyers law kumbe he was getting favorable one sided rulings from his brother in law.
I believe a thread was made about it.
It was a 3 man judge that made that ruling btw. Not 1 brother in law.
if these cases had been brought much earlier, say December, am sure the courts would have compelled IEBC to redo the process afresh, but we are staring at elections in a few days, any spanner in the works and the elections date might be disrupted. The courts were wise with their rulings, except the one on presidential ballot paper printing. Next time ukiwa Na kesi against IEBC upeleke at least 2 months before elections. And on the same, it’s high time we let institutions do their work, hii ujuaji mingi will be our undoing. Let us allow these institutions to grow professionally, by meddling in their affairs we are setting up for failure and anarchy in future.
For me I am against the judiciary making rulings lacking sound judicial intelligence. They should have just stopped the process. This would have reset everything and maybe forced a referendum on a new election date if needed. But in the process every loophole would be sealed. Remember U.K. would still remain president until the winner takes over. There is no void of Presidency. We have to take time to do things right. Laws would then be passed to place deadlines on challenging IEBC processes in court. Otherwise you give the looser or an intending rigger ammo.
if the courts did so, they would effectively be rewriting the Constitution… as for new electoral laws, what we need is a new law to bar litigations against IEBC that might put elections into jeopardy, probably a law that says you cannot sue IEBC under 2 months to elections. We have a similar clause in the book on the timelines for determining poll cases after an election.
Hahahahaha!! The Odunga and Orengo tag-team had forgotten that biased, politically and ethnically-tainted judgements can also be met with similarly ridiculous counter-judgements.
Stop catching feelings now. You find Odunga a ‘brilliant’ justice as long as he rules for JaKuon.
Hahahaha!!!That’s a first. So even @Nattydread knows those rulings are bullshit.
PS. I can never catch feelings for a politician.
Stop laughing like a farmer with a toothache, my stand on the Odunga circus are well articulated. He got a taste of his own medicine.
Hii kitu haitakuwa rigged, babuon will be defeated cleanly and squarely,ama ni nyinyi tu mko na voters cards,?
Hopefully no rigging. But the moment things start going manual who knows what will happen. And Raira says he has 10 million plus+.
Simiyu’s sideshows aside, these are very sound arguments, unanimously shared by five senior judges:
The bench unanimously faulted High Court judges Joel Ngugi, George Odunga and John Mativo, saying they committed a serious error when they failed to consider millions of voters, whose rights to a free, fair and regular election would have been violated, should the August 8 polls fail to go on.
“In granting the orders, the judges erred in imposing a requirement for public participation as mandatory before resorting to direct procurement,” the judges ruled.
They also rejected claims of biasness on the part of the IEBC.
The judges said there was no evidence to prove the IEBC’s choice of direct procurement was meant to avoid competition.
“They exercised their discretion wrongly, when they failed to consider the timelines set for the procurement processes and election dates,” they said.
[SIZE=6]Although the High Court had stopped the printing of presidential ballot papers, following a suit filed by NASA, it allowed Al Ghurair to print those of governor, senator, woman representative, MP and MCA.****[/SIZE]
On this, the five judges said the ballot papers tender is “single, inseparable and indivisible and cannot be split”.
They said it was wrong for the court to suggest there was enough time to order fresh recruitment.
The judges dismissed claims the President has links with Al Ghurair and had a hand in the controversial contract as rumours.
IEBC wins, NASA dealt blow in presidential ballot paper ruling
****This is the point at which NASA royally fucked up, accepting ballot papers for all other races but the key presidential contest. That shows that they know that they’re losing that race badly and would like to foment a crisis so that JaKuon can have his foreign sponsors broker another nusu-mkate arrangement. What a shallow strategy!
Bullshit.
The bench unanimously faulted High Court judges Joel Ngugi, George Odunga and John Mativo, saying they committed a serious error when they failed to consider millions of voters, whose rights to a free, fair and regular election would have been violated, should the August 8 polls fail to go on.- A referandum can be used postpone (if needed) the election to ensure atmost trust and due process. What would you rather a late free and fair election or a hurried one which may have disputable results ( according to NASA)…
“They exercised their discretion wrongly, when they failed to consider the timelines set for the procurement processes and election dates,” they said.- Theres no timeline blocking the challenging of an election process violation in the constitution.
Although the High Court had stopped the printing of presidential ballot papers, following a suit filed by NASA, it allowed Al Ghurair to print those of governor, senator, woman representative, MP and MCA.****
On this, the five judges said the ballot papers tender is “single, inseparable and indivisible and cannot be split”.- Why not cancel them all to ensure due process is followed.
Exactly! Where was Odunga’s due process and Orengo’s sense of justice? You know that the cancellation was partial because it’s the Presidential race that has been making JaKuon tremble for 5 years of OKOA, referendum, IEBC must go!, Unga revolution, etc. He said as far back as early 2016 that the polls were already rigged.
Nikikwambia uache kucatch. Save them for 9/6/2017.
Tulisema hizi mitego wanaweka ni hao wanajinasa and it’s coming to pass.
I remember, Jimmy Orengo being referred as A Walking Constitution, lakini wapi.
Haven’t they established any family ties of the appeallate judges to Jubilee
It is sad that a judge who has worked his way up to the level of a High Court Judge is disparaged and maligned just because his name ‘betrays him’, he is related to a key figure in the opposition and in dispensing justice he does not always agree with the government, it is wrong, regrettable and disrespectful, Jubilee should stop these attacks.