After a whole day of listening to the full Supreme Court verdict, Njoki Ndung’u wrapped it up some minutes past 9 pm.
Being one of the dissenting judges, Njoki was expected to give her reasons why she differed with the majority on September 1st.
Earlier, the majority, namely: Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola had read their judgement. They made it clear their decision was guided mostly by the anomalies found in the various result declaration forms and issues to do with transmission of results and access to the system.
During the hearing of the peition, court officials prepared a report after analyzing the Form 34As and 34Bs. They cited numerous errors, ranging from lack of watermarks, serial numbers, security features and even signatures by either party agents or returning/presiding officers.
This came to light on the last day, particular at the end when Orengo gave quite a dramatic and memorable presentation before he was cut short by Maraga. He said that was the smoking gun proving that the election was not free and fair.
When the majority were delivering their judgement yesterday, they cited the same several times.
But unlike everyone else, Njoki Ndung’u took the liberty of verifying the claims herself. According to her, all forms had already been filled at the Supreme Court by the IEBC, 48 hours after Nasa filled their petition. She wondered whey the rest of the bench did not take the role of verification.
Njoki listed each constituency where the Forms allegedly had errors, and pulled out the particular forms to confirm for herself. What she found turned out to be the exact opposite of what Senator Orengo had told the court. Forms that had been listed as having no watermarks, signatures and serial numbers all turned out to have.
In short, most of the information relied on by the majority bench when making their judgement, in terms of results forms, was inaccurate.
When law students, lawyers and other observers study the judgement, tough questions will have to be asked on the role of the court in verifying evidence. Especially in an important case like the one that was just before the Supreme Court.