Growing up as a child I aimed to be grown into adulthood so as to benefit from the privileges only accessible to adults. Thirty or so years ago when some of us believed we were fighting for a just cause worth dying for, a nobility that would entrench recognition and a right to humanity as enshrined in the laws of other democratic countries. People lost limbs and some even paid with their own lives because we all had that lofty place as a place worth reaching no-matter what?


Now, what should our struggle be based on from here on when the very institutions, which people fought so hard to have in place, are the ones that have been turned into auction platforms where highest bidders dictate the type, measure and quality of justice dispensed?


Willy Mutunga and his clowns of 5 have completely made a mockery and turn the universal law of justice on its head. Passing out regurgitated submissions by lawyers, as bench opinion is itself a betrayal of what such a bench is paid to do. Even my own grandma, could have said or stamped her authority on some issues easily and on the cheap than what this cowardly bench has done. What is a qualifier for irregularity? How much of votes must be stolen or rigged in for this qualifier by Mutungas court to take notice? How do we cure an open theft and lie as demonstrated by Kethi Kilonzo when two different announcements are made on same item? Which one does Willy Mutunga want Kenyans to accept as real and authentic? What are the Mutunga’s really telling Kenyans; that lying can also be qualified under the law, depending on which side is telling it?


My little niece asked me the other day, if what the Supreme Court gave us as a verdict was truly binding and if so why do adults get mad when kids tell white lies but adults are allowed to get away with it?


The bottom line is, Mutunga and his bench must consider resignation as the only way to cure this betrayal to the nation and to those who died fighting for truth. Shame is what they have brought us nothing more or less.


  1. Please bwana Mutunga, if only you could finally shut up! Those ‘losers’ you refer to already moved on!! Who cares about the events of March 4, 2013 anymore? That you have no regrets is nothing new. Samuel Kivuitu went down his grave without regretting his actions. But boy, did you see the way he died and how he was shunned even in death? Keep thumping your chest Dr. even as you seem to openly suffer from a guilt trip!!

    Chief Justice Willy Mutunga admits courts cannot please all in election disputes

    (From L to R) Law Society of Kenya chairman Eric Mutua, Chief Justice Dr Willy Mutunga and Independent Electoral and Boundaries Commission chairman Isaack Hassan during the launch of the Handbook on Election Disputes in Kenya at the Intercontinental Hotel, Nairobi, on November 29, 2013. PHOTO | JEFF ANGOTE NATION MEDIA GROUP

    Chief Justice Willy Mutunga has said he has no regrets over the Supreme Court’s decision that reaffirmed President Uhuru Kenyatta’s win in the March 4 General Election.

    Dr Mutunga also proposed that there should be an alternative political mechanism to resolve election disputes instead of relying on courts.

    The CJ said courts could not satisfy everybody in an election dispute in a country which is divided based on ethnicity, tribe, clan, race, religion, class and culture.

    Dr Mutunga was speaking during a debriefing of advocates and the launch of the Handbook on Election Disputes in Kenya at a Nairobi hotel. He also said the election disputes were denting the image of the Judiciary which the country has been trying to build since 2007.

    “How do you expect the court to decide a dispute and losers say they are satisfied? How do you expect court to convince the loser that there was justice?” Dr Mutunga said.

    He said there should be a political tribunal to address differences during elections and a decision reached through a culture of elite consensus to save the Judiciary from damage.

    Dr Mutunga’s remarks came after Law Society of Kenya Chairman Eric Mutua said lawyers were unhappy with the way the Supreme Court, of which Dr Mutunga is President, handled the presidential election petition.

    “The bar feels it should have been handled in a different manner,” Mr Mutua said, but also conceded that the Judiciary had done a commendable job in handling other electoral disputes.

    The LSK boss said the speed in which the electoral petitions were concluded should be replicated in other civil matters to fasten delivery of justice.

    Dr Mutunga said conducting a peaceful election, and peacefully resolving the disputes that arise from them, are important markers of a maturing democracy.

    “This is playing politics under the four corners of the rule of law, and we must not take it for granted. All institutions and actors in Kenya’s 2013 electoral processes must fortify the positives of this experience, learn from and eliminate the lapses that may have occurred, and in consequence enrich our constitutional democracy,” Dr Mutunga said.

    The electoral dispute resolution processes in the trial courts ended in October. The appellate process began in earnest thereafter and now the focus has shifted to the appellate courts.

    “We at the Judiciary are pleased with the management of the electoral dispute resolution process. The handling of the disputes within the timelines set is a constitutional victory for the Judiciary and our country at large,” Dr Mutunga said.


    The Independent Elections and Boundaries Commission chairman Issack Hassan said there’s no election without an element of dispute.

    He however said the disputes over the March 4 election was not a reflection of IEBC’s weakness.

    Mr Hassan said the high number of election related disputes after the March polls was as a result of increased public understanding of the available redress.

    The IEBC has been under criticism from a section of Kenyans led by the Coalition for Reforms and Democracy (Cord) leader Raila Odinga over the handling of the March 4 elections that was marred with breakdown of equipment and other irregularities.

    The Supreme Court has also been under attack for re-affirming the IEBC’s declaration of President Kenyatta as the winner of the March 4 presidential polls with a slight margin against his main rival, Mr Odinga.

    Mr Hassan said the biggest challenge IEBC had was dealing with the timelines following the 10th Parliament’s amendments that put party primaries too close to the General Election.

    He also criticized late court appeals decisions and injunctions saying they led to loss of taxpayers money.

    In March, Mr Hassan declared Mr Kenyatta the winner of the presidential election with 6,173,433 votes against Mr Odinga’s 5,340,546 but the Cord leader challenged the decision in court saying IEBC had rigged the polls in favour of the Jubilee leader.

    Mr Kenyatta surpassed the constitutional requirement of 50% + 1 vote by 4,100 votes which saw him get 50.07 per cent of the votes.

    The Supreme Court headed by Dr Mutunga ruled on March 30 that President Kenyatta was “validly elected in a free, fair, transparent and credible election.”

    The constitution stipulated that the dispute was to be resolved within 14 days and Dr Mutunga’s team had only five days to review the petition and make a ruling.

    The actual one-page ruling was written and signed by the six Supreme Court judges at the time and took less than 10 minutes to be read to Kenyans.

    The Supreme Court rejected Mr Odinga’s 900 page petition on grounds that it was time barred. The first issue that was determined was whether then President-elect Uhuru Kenyatta and Deputy President-elect William Ruto were validly elected.

    The Handbook on Elections Disputes is intended to contribute to the debate on elections, secure credible and fair dispute resolution mechanisms for future elections, equip both the Bench and the Bar with a broad understanding of the constitutional and legal framework that governs elections in Kenya, particularly electoral disputes and aid in electoral dispute resolution by providing an analysis of the existing jurisprudence.


  2. Dr. Willy Mutungas already damaged credibility is now being dragged in the mad by Shollei. We told this man to keep his head above the corruption in the corridors of the judiciary without success. He is now paying the wages of sin. He was set up by those that he thought he was helping. On the other hand he had wronged those who could have helped him.


  3. Jurists fault Supreme Court ruling on presidential petition

    Supreme Court Judge Justice Mohamed Ibrahim addresses judicial officers at Serena beach resort hotel in Mombasa Thursday. [Photo: Maarufu Mohamed/Standard]

    By Benard Sanga

    Mombasa, Kenya: Legal scholars and practitioners from East African countries have punched holes in the March 30, Supreme Court presidential petition ruling, saying it did not establish jurisprudence that can be emulated by law students.

    The critics also argued that the ruling set a bad precedent for other courts in Commonwealth countries.

    President of the Supreme Court, Chief Justice Willy Mutunga, did not turn up to defend the ruling in which he participated. He sent a judge to represent him.

    The legal practitioners from the five EAC member states meeting in Mombasa said the verdict to uphold the election of President Uhuru Kenyatta had many flaws and should not be used as reference on similar matters in the future.

    The calls from several participants at the regional workshop on constitutionalism and electoral process in East Africa, held Thursday, comes at a time when Judge Mohamed Ibrahim, one of the judges who made the ruling, is rooting for a constitutional amendment to increase the days the court should listen to future presidential petitions from 14 to 45 days.

    The judge argued that if the court had enough time, it could have handled the petition differently.

    Mutunga, in a speech read on his behalf by Justice Ibrahim said he will today hand over the election petition’s documents to local universities for scholarly studies.

    But the legal practitioners protested the move saying the ruling had ‘serious flaws’ and lacked authority to be attributed to because no judge read it in court.

    “We saw a situation where substantive justice was not arrived at because of technicalities. What jurisprudence can be expected from a unanimous decision where judges did not lay down individual reasons and methods on how they arrived at that decision?” said Dan Ameyo, an advocate of Kenya’s High Court.

    The Supreme Court upheld the election of Uhuru and dismissed petitions filed by his closest challenger, Raila Odinga, and a civil society group.

    CJ Willy Mutunga read the judges’ decision but the reasoning behind it was issued later. Ameyo said students would not learn much from the ruling because they did not have reasons from each of the six judges on how they reached the decision.

    Law Society of Kenya (LSK) Chairman Erick Mutua said failure by each judge to submit reasons and methods of arriving at their decision had created a perception in many Kenyans’ minds that they had something to hide.

    He said the conduct and utterances of some members of the defence’s legal team had also portrayed a picture that the court had no control of the proceedings.

    “We had a counsel telling the court that it was a young court and that it was on trial, but judges took it lightly. That portrayed the court as not being in control,” said Mutua.


    • The demons are now ready to chew Dr. Mutunga and spit him out from the CJ’s chair.

      Check these two stories:

      First they hacked his communications then handed the hot dossier they found to the Standard to publish and set Mutunga up for a war he could very well lose. Then what. That is NIS for you. Instead of hacking Al Shabaab they are busy hacking the CJ and of course the witnesses in the ICC cases. We are entering a very dark period in the nation. When Uhuru skips the ICC he will need a very compliant Supreme Court. Dr. Mutunga cannot be trusted that much.


      • Adongo

        Point to note is that the standard group which published that dossier is headed by Sam Shollei who is married to Gladys Shollei. That brings an interesting angle to this saga.

        Moreover, Standard claims that some emails (to be screened on KTN Prime later tonight) will shock viewers as to their authors.

        Gladys Shollei position as Registrar of the Judiciary is in serious disrepute. As I see it, this is a tug of war for resources and a serious battle for control of SCOK basically between new comers in Jubilee and the old guard who served Kibaki in yesteryears. The Chief Justice and probably a few of the judicial commission will be collateral damage.

        The ultimate beneficiary obviously will be the Hague duo who will also reap well in the CJ’s succession in time for the 2017 general elections. It is a long term plan to torpedo election petitions that may jeopardize Jubilee majority in house and senate, and the presidential election itself. In other words, they are preparing for non-cooperation with ICC and also election rigging.

        Did you read this:

        Posted Saturday, August 24, 2013 | by- Nation Reporter
        Impending changes at the Judiciary excite power brokers

        They have styled themselves as the Karen Six.

        They are two judges, three lawyers and a retired army general who frequent exclusive members’ clubs and other high-end restaurants in the Karen and Hurlingham area, and who pride themselves as informally controlling the pulse of the Judiciary.

        Top on the agenda of this informal but powerful group is how to manage succession in the Judiciary.

        Chief Justice Mutunga is due to retire in June 2017 after he turns 70, which is the mandatory retirement age of a judge. The office he holds is regarded as powerful since the Judiciary has acquired wide ranging powers under the 2010 Constitution.

        When the Cord leadership disputed the outcome of the March 4 presidential election, it was the Supreme Court — headed by Justice Mutunga — that made a determination that President Uhuru Kenyatta had won.

        Before Justice Mutunga retires in 2017, he will be preceded on the same grounds by his deputy, Justice Kalpana Rawal and Supreme Court judge Philip Tunoi.

        That means that the Judicial Service Commission will be making key recruitment decisions beginning next year and which will determine the character of the bench that would hear such critical matters as a presidential election petition in future.

        But the Judicial Service Commission is also facing imminent changes.

        Lawyer Ahmednasir Abdullahi’s term expires in December and the Law Society of Kenya is expected to vote to either retain him for a second and final term or replace him with a new broom.

        Similarly, High Court judge Isaac Lenaola’s term at the JSC will expire in October.

        Chief Magistrate Emily Ominde will exit the JSC in October 2015 when her term on the body ends while lawyer Florence Mwangangi will leave in December of the same year.

        President Kenyatta is expected to replace either one of two representatives of public interests between Prof Christine Mango and the Rev Samuel Kobia at the end of this year.

        The imminent changes, which will completely redraw the face of the Judiciary, and possible replacements who will come on board, has already excited a good deal of private discussions in the corridors of power, among lawyers and judges and informal groups such as the Karen Six.


      • phil,

        Thanks for the info. It is funny that they are going to screen hacked e-mail info on KTN live live. Does anybody know that hacking private mails is actually an offense in Kenya? If the Standard has the hacked info then they must also know who did the hacking and provided the stolen e-mails.

        The impunity with which this whole thing is being carried out tells me this is NIS hacking operation. Shollei may go down but I think the operation here is to disrupt the entire judiciary and completely undermine the CJ.

        By the way Shollei has already demanded an inquest on the CJ and team based on the hacked e-mails. The war is effectively on.


      • the CJ had the one opportunity to break clean away when presented with the presidential petition.

        he chose the safe ground (or at least thats what he thought). once he displayed his weakness, the vultures were ready and its only a matter of time. there is no turning that clock back.

        i have no sympathy for the CJ


      • tnk,

        I was equally disgusted by the shoddy behaviour of the Supreme Court. I was prepared for any ruling and upholding the IEBC so called results was not the crime here.

        The crime was the fact that the CJ and the SCOK basically participated in one of the worst forms of supression of evidence and then going through the motions with a fixed ruling which they didn’t even have the courtesy to write and communicate to the citizens. As I said before the biggest loser in all this was Dr. Mutunga whose reputation as an outstanding legal scholar and a honest human being who was committed to judicial reforms in Kenya was thrown to the dogs.

        That said Dr. Mutunga is still a very good person He still has a lot he can achieve in judicial reforms in the next three years. The country is going to go through a roller coaster in the next couple of years. So we are still going to fight for the CJ.

        This nonsense of hacking the CJ’s communications is pretty dangerous. And they are busy peddling the stolen info in public just like that. These idiots should be hacking Al Shabaab accounts etc instead of hacking the CJ and other Kenyans working in the judiciary. These criminals must be exposed and faught. But yes the vultures are now out to get Dr. Mutunga. The “blood bath” is coming. Both sides are going to bleed.


      • Guys,
        Mutunga does not have a long spoon yet he sups with the devil since the last elections. This man is going to feel pangs of pain to the end. He had been used now its time to get rid of him. He must not be allowed to handle the elephant in the room which is ICC. Personally, just like TNK, I have ZERO sympathy for him. He threw away the only chance he had to make a difference by killing the presidential petition with nonsense, letting himself to be directed by external dark forces on what to do.


  4. Just listen to this confused judge! He is actually telling us that there is no need for courts in matters elections! And it is also amazing that this bastard of a judge did not see it fit to disqualify himself from the case having partnered with Isaak Hassan in running a law firm!!

    Judge: How we came to conclusion Uhuru poll victory was valid

    Chief Justice Willy Mutunga (centre) hands over the Supreme Court report on their judgment. A Supreme Court judge has for the first time revealed the behind-the-scenes activities that preceded their decision to rule in favour of Mr Uhuru Kenyatta as Kenya’s fourth President. PHOTO|FILE NATION MEDIA GROUP

    A Supreme Court judge has for the first time revealed the behind-the-scenes activities that preceded their decision to rule in favour of Mr Uhuru Kenyatta as Kenya’s fourth President.

    As tension and anxiety gripped the country, Supreme Court judges led by Chief Justice Willy Mutunga retreated to a secret location where they made the unanimous decision that Mr Kenyatta had won the election fairly.

    “We had sleepless nights and anxious moments. At one point we went for a retreat somewhere. I will not tell you where but just know that is what happened. It was very demanding and difficult for the six judges since we barely had five days to make a ruling,” said Mr Justice Mohammed Ibrahim.

    Speaking at an exclusive motivational talk dubbed “Breakfast with the Coach”, a quarterly motivational talk organised by Purpose Centre Church, at Ole Sereni Hotel in Nairobi, Justice Ibrahim said the unanimous decision was based on evidence and figures presented before them.

    “People ask how we did it. How was it unanimous? Election petitions are very simple. It’s about evidence and figures. It’s as straight as that. Although you must consider the responsibility bestowed and the sensitivity involved but on a matter of law in was straight-forward,” said Justice Ibrahim, who was one of the guests at the talk last Sunday.

    The election dispute ended up at the Supreme Court after Cord Presidential Candidate Raila Odinga challenged the results of the March 4 poll. Mr Kenyatta won with 6,173,433 votes against Raila’s 5,340,546.

    The Supreme Court headed by Dr Mutunga ruled on March 30 that President Kenyatta was “validly elected in a free, fair, transparent and credible election.”

    Justice Ibrahim, who talked about his life story, said it was a challenging time for the Supreme Court judges and Kenyans.

    “After March 4 elections, Jubilee coalition won and the Independent Electoral and Boundaries Commission (IEBC) declared them winners, it was a very, very difficult period. For the first time, I was being involved in a presidential petition and coincidentally, the chairman of IEBC was at one time my partner at a law firm. Some people thought that we did something (to influence the ruling),” said the judge.

    Mr Isaak Hassan is the chairman of the IEBC, which Mr Raila’s Cord coalition had accused of rigging the election in favour of Mr Kenyatta.

    Justice Ibrahim said the petition came at a time when the Supreme Court had been reduced to six judges following the sacking of then Deputy Chief Justice Nancy Baraza for misconduct. She was replaced by Justice Kalpana Rawal in April.

    He said this was a gamble on the part of the government because with an even number of judges sitting on the bench, there was a possibility of a stalemate.

    “The purpose of having seven judges was not an accident. It was an issue of having an odd number so that there is no stalemate. So you can imagine six judges making a ruling. This was very, very risky for the country. Supposing we had returned a 3-3 decision or something like that? Anyway that was not the reason we decided the way we decided because I am here telling you for the first time that it was on merit and we have no apologies to make,” said Justice Ibrahim.

    The judge said that time had “stood still” for the judges because out of 14 days stipulated by the Constitution, they had only five days to review the petition and make a ruling.

    “There were only 14 days for the petitioner and respondents to file a petition and serve the other party who were to respond within a specific period. We barely had five days to hear the case and make a ruling and that was a very challenging time in my life,” said the judge, who was detained without trial during the Kanu regime for fighting for a democratic Kenya.

    “As a supreme court, we had nothing (interest) in the case. We stand by our decision. We believe in it. It was based on law,” he said, adding that contrary to claims by some Kenyans, the Supreme Court was not divided.

    The issue of divisions in the Supreme Court was fuelled by claims from Mr Odinga to journalists during his concession speech that he had prepared a victory speech but had quickly drafted another one after his case was struck out.

    Justice Ibrahim told politicians to “plan and win elections at the ballot box” instead of depending on the courts.

    “If you want to win an election, win it at the ballot box. Do not come to court. Why should 14 million Kenyans be put through that problem (registration and voting), then you want six or seven people to decide. Who are we?,” posed the judge, who called on Kenyans to review the constitution to improve it.

    “I believe in our Constitution. It is a good Constitution but when emotions go down, we can make some amendments. There are things that we might need to change. Among them the number of judges and aspects on devolution,” he said.

    Amid laughter from the gallery he said: “Look the Senate and Parliament have also come to us to determine their problems.”

    Justice Ibrahim’s disclosure is the first report on the goings-on at the Supreme Court as Kenyans and the world awaited the outcome of Mr Odinga’s petition.

    Other sources told the Saturday Nation that Dr Mutunga had divided the various issues raised in court among the six judges and each asked to make an independent decision.

    The judges then converged and each was asked to make a presentation of their findings, after which they agreed on the verdict.

    The Saturday Nation has also independently learnt that the judges had booked three different hotels but had eventually settled on Windsor Country and Golf Club as their preferred venue for the retreat.

    The actual one-page ruling was written and signed by the six judges only about 30 minutes before the decision arrived at that morning and officially communicated on March 30.



    IEBC declared Mr Uhuru Kenyatta the fourth President of Kenya on March 9. Uhuru won the election with 6,173,433 votes against Raila’s 5,340,546. He surpassed the constitutional required of 50+ 1 vote required by 4,100 votes which saw him get 50.07 per cent of the votes. Mr Raila Odinga protested that the elections was rigged.

    He petitioned the Supreme Court. Other than Ibrahim, Supreme Court judges who ruled on the case were Chief Justice Dr. Willy Mutunga, Justice Philip Tunoi, Justice Jacton Ojwang, Justice Smokin Wanjala and Justice Njoki Ndungu. Raila was represented by Mr George Oraro while Uhuru and Mr Ruto had Mr Fred Ngatia and Mr Katwa Kigen respectively.

    IEBC chairman Mr Isaak Hassan had Mr Ahmednasir Abdullahi while IEBC had a team of lawyers led by Mr Aurelio Rebello and Mr Mohammed Nyaoga.

    The Supreme Court rejected Mr Odinga’s 900 page petition on grounds that it was time barred. The first issue that was determined was whether then President elect Uhuru Kenyatta and Deputy President elect William Ruto were validly elected.


    • Judge: Timeliness to hear Presidential Petitions should be amended

      MOMBASA, KENYA: A Supreme Court Judge has called for amendment of the Constitution to prolong timeliness to hear and determine Presidential Petitions.

      Justice Mohammed Ibrahim said that the constitutionally required 14-day period is too short to comprehensively and exhaustively hear and judicially determine a Presidential Petition.

      The Supreme Court Judge said that an amendment of Article 140(2) of the Constitution would provide the court with more time to hear Presidential Petitions synonymous to neighbouring Uganda and Ghana.

      He admitted that Kenyans would have more readily internalized and embraced the Judgment on the Presidential Petition had the Supreme Court Judges read reasons of their ruling in open court.

      “We may have broke the law as Civil Procedure Code provides that Judgments and Rulings should be read and signed by Judges in open court,” Justice Ibrahim said.

      The Supreme Court Judge reiterated that strict constitutional timelines informed their move.

      The Supreme Court Judge was responding to questions posed to him by lawyers from Kenya, Uganda, Tanzania, Burundi and Rwanda during a plenary session of an ongoing East Africa Law Society regional conference on elections and constitutional trends in Africa at Serena Beach Hotel and Spa in Mombasa County.

      The theme of the two day Conference that has also attracted Judges and senior election officials from East Africa is Emerging Electoral and Constitutional Trends in East Africa: Are We at Crossroads?” Justice Ibrahim said that their decision was unanimous arguing that the Supreme Court debated their reasons and agreed.

      “The timeliness to hear Presidential Petitions should be amended from 14-days to between 45 and 65 days…the current 14 days is too little,” Justice Ibrahim said.

      The Supreme Court is the court only with original and exclusive jurisdiction over disputes in Presidential Elections.

      “We ( Supreme Court Judges) would have read the Judgment of the Presidential Petition in open court and considered the 839-page affidavit filed by former Prime Minister Raila Odinga but we had time constrains,” Justice Ibrahim said.

      He regretted that the ruling had grammatical and typographical errors. “We regret the editorial errors but insist that they did not judicially interfere with the substance of the ruling,” Justice Ibrahim said.

      The Supreme Court Judge reiterated that they were unanimous in their decision after burning the midnight oil.

      “The Constitution provides that we had to give a ruling within the strict timeline of 14-days, which explains why the full Judgment was delivered afterwards,” Justice Ibrahim explained. Article 140(2) of the Constitution provides that the Supreme Court hears and determines Presidential Petitions within 14 days.


  5. Exit poll finds neither Kenyatta nor Odinga were close to 50 per cent

    New York

    A survey of Kenyan voters exiting polling places for the March 4 election shows a statistical tie between Uhuru Kenyatta and Raila Odinga, with both candidates receiving about 41 per cent of the vote.

    The so-called exit poll was conducted by two US political scientists and included about 6000 Kenyan voters. The results captured on this video link (see below) were released at a Washington think-tank forum on Thursday.

    The exit poll showed Mr Odinga receiving 40.9 per cent of votes and Mr Kenyatta 40.6 per cent, with support for other candidates accounting for some of the remainder.

    Nearly 12 per cent of the Kenyans included in the survey refused to indicate for whom they had voted in the presidential race.

    The results represent “a statistical tie” between the two top vote-getters due to the survey’s margin of error, the pollsters said.

    One of the pollsters, Harvard University vitiating professor James Long, acknowledged under sharp questioning from the audience that the margin of error could be as high as three per cent.

    But even taking account of various statistical uncertainties, Prof Long said, “There is no reasonable assumption that gets either candidate to 50 per cent.”

    For example, the contention that Mr Kenyatta benefited from a comparatively much higher turnout in Kikuyu-dominated parts of the country was shown through the exit poll to be “a myth,” Prof Long declared.

    He and his colleague, Prof Clark Gibson of the University of California at San Diego, declined to identify precise causes for the discrepancy between their survey’s results and the outcome certified by the Independent Elections and Boundaries Commission.

    The official result showed Mr Kenyatta winning slightly more than 50 percent and thus avoiding a second-round runoff.

    The pollsters have “no evidence of people stuffing ballots” or buying votes, Prof Long said.

    “Why should somebody believe the results of the election are invalid?” a member of the audience asked.

    Prof Long suggested, “Because people broke the law when they counted votes.”

    Prof Long said at the outset of his presentation at the Johns Hopkins University School of Advanced International Studies that exit polls are “immune” to ballot stuffing or technological breakdowns.

    Data from the survey also indicated that both Mr Odinga and Mr Kenyatta enjoyed overwhelming support from their respective ethnic groups.

    Mr Kenyatta received 83 per cent of the Kikuyu vote, according to the exit poll, while Mr Odinga got 94 per cent of the Luo vote, the survey indicated.

    Among Kalenjin included in the poll, 74 per cent voted for Mr Kenyatta and 11 percent for Mr Odinga.

    For Kamba who took part in the survey, the breakdown was 63 per cent for Mr Odinga and 12 per cent for Mr Kenyatta.

    Overall, “there seems to be some loosening of ethnic identification” with particular candidates, Prof Long suggested.

    In response to a survey question asking participants to name the most important issue behind their choice, most cited either the economy or employment.

    Very few voters identified tribalism, land or the cases before the International Criminal Court as the most important issues in the election.

    Fraud and Vote Patterns in Kenya’s 2013 Election Evidence from an Exit Poll (May 2, 2013)


    • wow

      that video was removed quick, if anyone doubts what i had written elsewhere, start looking at the signs of the times


      • well that first clip was pulled down so fast

        but guys had better learn fast, you cannot muzzle or gag internet content. ask the guys that tried to stop wikipedia

        i understand there are at least 30 sites hosting copies of the clip


  6. Jansinteur,

    I have been following the discussion and your opinions in relation to the supreme court’s handling of the petitions that were filed. Your general observation is that CORD failed to convince the court that the elections were not free and fair. That they raised issues relating to the systems but could not prove that it was sabotage rather than incompetence. I agree with you on some issues but generally, I am in fundamental disagreement with you. Like you, I also have an IT development and implementation background. While I have heard all sorts of theories on why the supreme court ruled the way they did, I am not going to dwell on the conspiracy theories. I am simply going to lay out the facts as I know them. I have worked at different levels with the now defunct Electoral Commission of Kenya and therefore will borrow from the experience to bolster my points.

    The electoral system that we currently have is a product of the struggle for fair political representation. The process was entirely manual in the 90s, there was a measure of computerisation introduced in 2002. After the post election violence of 07-08 Justice Kriegler proposed a set of computerised checks and balances on the electoral procedure that was instituted in 2002.

    The first anomaly that I would like to highlight was the issue of multiple registers. I went through the voter registration process like millions others. The immediate difference this time was that there was a lot more computerisation than was the case previously. Disabled voters have always presented a different challenge to the electoral body and at the time when I was a polling clerk with the ECK there were special procedures that ensured that the disabled were both registered as voters and they properly voted when the time to vote arose. At the time it was a single register for both able bodied voters and disabled voters. In 2013 the registration system was supposed to capture all the fingerprints and the facial potrait of the voter. In the case where a voter was disabled and had no limbs for fingerprints, the facial potrait was taken and the registration clerk indicated “Not Available” for the fingerprints, that provision was there in the BVR system and as such the voters without fingerprints were in the main register. The claim that there was a seperate process for the limb-less voters was patently false. If that was the case, where did the seperate special register come from? The only pity was that the CORD legal team seemed oblivious to that fact and could not challenge the IEBC further on that fact.

    You raise the issue that the BVR system was different from the EVID system and therefore there may have been losses in transferring the records from one system to another, that point may be valid, but it is extremely weak. As someone who has worked extensively in data migration, the first thing one checks is whether all the records have been transferred from one system to the other. Considering that both systems are relational database based systems, a college student can easily write the relevant queries to make comparisons between the different databases. The BVR to EVID transfer was a simple one to one transfer and if there were anomalies in the migration of the data, the IEBC should have kept the people posted rather than raising the explanations when pushed against the wall. In this case they had officially gazetted one number of voters then they retroactively added voters after the cut off date completely against the law and they didn’t own up. Second, the IEBC claimed that the correct register should be the number of voters in the primary register + the number of voters in the special register. In 16 of the 22 polling stations that were scrutinised the number of voters exceeded that threshold. To explain it away, we had the green book!!

    On the voting day, there was a spectacular failure of the EVID system, we had to revert back to the system as it was between 2002 & 2007 in that we went completely manual in that respect. Inasmuch as the IEBC would try to explain it away that the manual registers were exactly the same as the electronic registers but in a hard copy format, there was a lot lost in the self auditing ability of the system. There was a security measure built into the system that would be very easy to effect in electronic systems but almost impossible to replicate on manual systems. When one came to vote, the fingerprint scanner would capture the fingerprint and clear you in the system as having voted. So, at the end of the day, the number of fingerprints+the number of disabled voters manually cleared into the system would give you the turnout without much of a problem. It would be difficult to tamper with this, the only chance of rigging would have been using the disabled persons’ details since they didn’t have the fingerprints, but even in such cases there was a procedure effected to ensure that all the agents & the deputy presiding officer are there to clear the disabled persons in order to eliminate fraud. What happened on the voting day? Since the EVID systems were down, they resorted to the manual way of cancelling out the details of the voters on the manual register to indicate that the particular voter has voted. That mode of operation is easily prone to manipulation and since there were no biometrics needed indicating who has voted, it placed that duty squarely on polling clerks who could cancel out any number of voter records if the need for ballot stuffing arises. In such a case, what was supposed to be the safeguard?

    Then we had the system for relaying the results, which was an entirely different system once again. It was supposed to relay the results to the constituency tallying centre, county tallying centre & the national tallying centre. From a cursory view, the system had 2 major bugs. I don’t buy the IEBC explanation that the system was multiplying the number of spoilt votes by 8. If that were the case, the number of spoilt votes should have been divisible by 8 at all times. Was that the case? There were times when the figure ended with an odd number, surely that was a cooked explanation. And even if the explanation stood, why would one want to multiply the figure by 8? It should relay results without any manipulation. Even with that in mind, the rejected ballots like the other votes are important and any serious software tester should have got to the bottom of such an obvious bug before the system is taken into production. The second bug that became apparent was the uniform gap between the top 2 candidates. Unfortunately with no audit we will never get to the bottom of this.

    Now to Dr Mutunga and the SCOK judges. In their judgement they made reference to a ruling in Nigeria, this is a ruling that is considered shameful that even the Nigerians themselves are astounded by the fact that the Supreme Court would make reference to it. In order to make the result of the election in the first round doubtful, the petitioners needed to prove that at least the number of votes above the 50%+1 constitutional threshold are in doubt ans as such the result can’t stand. The number of votes was a wafer thin 8000 votes. The Supreme Court referenced the Nigerian ruling that essentially demanded that the petitioner should prove that the irregularities should be so substantial to prove that if they were not there, the petitioner would have won. While such a requirement would have been useful in a runoff, it made no sense in round one.

    In the case of taking the spoilt votes into consideration, the SCOK decided to go with TNA in using other legislation to contradict what the constitution explicitly states. In the case of the CORD petition, they used the constitution to nullify the other legislation that was enforcing the electronic voting system. If we are to be consistent, we need to use the same method in applying the law, in this case they used different methods. The ultimate beneficiary being the Jubilee coalition.

    In an election, especially one that is as divisive as the one we have just held, one group will win and another loses. That is the nature of politics. When such a contest ends up in the courts, it is therefore incumbent upon the Judges to deliver a judgement that explains the verdict fully. What did we get from the supreme court? It was a judgement that is as shallow as it gets. There was a lot of evidence that was presented that remained unchallenged. Almost 1/2 of the ruling addressed the rejected votes petition which was agreed to be a minor issue relative to the other 3 issues addressed by the petitions. Does that make sense? The judges that we have in the Supreme Court are some of the smartest legal minds we have in the country. No one in their right mind can question the pedigree of Mutunga, Wanjala or Ojwang’ for that matter. We have seen Ojwang’s rulings before and is generally considered to be one of the best around. Many of the Legal titans that we have in Kenya have gone through Dr. Mutunga as students. Wanjala is a well known scholar. So, for this bench to deliver such a shallow ruling, what will stop Kenyans from speculating. We even have jubilee supporters that welcome the verdict but are also questioning the lack of depth in the ruling. In such a case, the supreme court is the final authority, where do Kenyans turn to? If one has lost faith in an institution, will they make use of it?

    What is the implication of the Supreme court ruling? First, by watering down the controls that were being introduced by subsidiary legislation, it means that we will be stuck in the 2007 way of doing things. The computer systems may be incorporated in the process, but whenever a future petition goes to the Supreme Court, it will be disregarded without any second thoughts. Second, being a case that was setting the precedence, the integrity threshold has been lowered to an extent that all one needs to do is to rig themselves to the magical 50%+1 threshold for the result to be upheld. Third, considering that the illegal manouvers by the IEBC have been excused by the Supreme Court, what we now have is a rogue constitutional body that can do as it pleases with regards to the voter registers & the voting process. I know that the Supreme Court can choose to contradict its ruling in the future, it has happened before, but will Kenyans be willing to give the Supreme Court that chance? The reason why ODM didn’t go to court in 2007 was because Kibaki had packed it with his loyalists a few days prior to the elections and it couldn’t be viewed as credible. A lot of people had invested themselves emotionally into this electoral process and therefore seeing the Supreme Court treating it with carelesness that bordered on contempt definitely crossed the line.

    On the issue of the public’s treatment of Mutunga, there is criticism that is acceptable. But insults & slander that cross the line of natural justice & common decency cannot be tolerated whether we agree with the ruling or not. As I said before, with the casual & careless manner that the petition was handled, this was bound to happen. Not all people have the same level of sophistication as Mutunga therefore such reactions are to be expected. Kenya is not unique in that. Kenyans may choose to disregard institutions, but the shallow ruling that was delivered by the Supreme Court has done as much to dent the credibility of 2 important institutions, the Supreme Court & the IEBC.


    • Siguda,
      I love the way you brought this bacon home; nicely wrapped up in a flowery woven paper with a punget odour that would send George Foreman reeling into the canvass ready to be counted out. Mutunga better watch out.


    • Siguda,
      I appreciate your comments as it adds to insight on the electoral process. I also appreciate that you leave the question if the failures was an act of sabotaged or incompetence unanswered.

      I agree with you that the main objective of the IT applications was introducing checks and balances to reduce the possibilities of rigging. With the failures of the IT applications these checks and balances were lost. We were back to the manual system though does this imply that the elections were not free or fair?
      If we conclude that the electoral process without these IT check and balances cannot be called free and fair than the elections has to be cancelled and the IT applications be corrected before a re-run of the elections could be held. However it does not mean the elections were not free or fair.

      The uniform gap between the two parties does not seem to be caused by a bug. If random sampling is used (results coming from everywhere at the same period) then the ratio between the results will be stable. Only when the sampling is selective (for intentional or other reasons) will the ratio change according to the time and region where the results came from. I would expect rigging when the ratio suddenly changes without an relation with the sampling region (like the sudden change in ratio of the 2007 elections).

      The voter register was a compilation of data taken from each BVR. In theory this should be the final voter register though the registered voters were given the opportunity to check their registration and some found rightly or wrongly that their registration was lost. This is a first entry point for manually altering the register as every citizen has the right to vote. I also can accept that there have been very special cases which could not be registered by means of a BVR. However the volume of these alterations should be marginal. Altering the register should have been stopped on 18 December 2012 the cut-off date. Apparently it didn’t, resulting in multiple voter registers from different dates. Another 19,116 voters were added to the voter register.
      Is the conclusion the electoral process cannot be called free and fair when the alterations are marginal?
      The full judgement of Supreme Court verdict states the following;

      [256] The 1st Petitioner also cited variations in the numbers of registered voters, as a factor of illegality in the conduct of the Presidential election. Learned counsel, Mr. Oraro submitted that at the close of the register on 18th December, 2012 the total number of registered voters was 14,333,339; but that at the time of gazettement, the number was shown as 14,352,455. We have, however, found no major anomalies between the total number of registered voters and the total tally in the declaration of Presidential-election results made by the 2nd Respondent on 9th March, 2013. Although, as we find, there were many irregularities in the data and information-capture during the registration process, these were not so substantial as to affect the credibility of the electoral process; and besides, no credible evidence was adduced to show that such irregularities were premeditated and introduced by the 1st Respondent, for the purpose of causing prejudice to any particular candidate.

      [257] These findings lead us to the conclusion that the voter registration process was, on the whole, transparent, accurate, and verifiable; and the voter register compiled from this process did serve to facilitate the conduct of free, fair and transparent elections.

      I can agree with the decision of the court.

      The spoiled votes registration was just a software bug. I do not know how the system was designed an why the reported results needed arithmetic manipulations other than adding together. However the bug influenced all parties the same way. In- or excluding spoiled votes in the results for defining the 50% plus one vote was wrongly set in the IT system though changed while the IT system was still functioning.

      The full judgement of Supreme Court verdict states the following;
      [285] Taking into account the progressive character of the Constitution, and in particular its declared “national values and principles of governance” [Article 10], we hereby render the interpretation that the provision of Article 138(4),
      “A candidate shall be declared elected as president if the candidate receives –
      (a) more than half of all votes cast in the election; and
      (b) at least twenty-five per cent of the votes cast in each of more than half of the counties” –
      refers only to valid votes cast, and does not include ballot papers, or votes, cast but are later rejected for non-compliance with the terms of the governing law and Regulations. We are, in this regard, guided by a purposive approach, founded on the overall design and intent of the Constitution. We respectfully agree, on this point, with the position taken by the Constitutional Court of Seychelles in Popular Democratic Movement v. Electoral Commission (see para. 266, supra).

      I accept this as the interpretation of the law although having a different personal view. The interpretation does not take into account the wish of a voter who does not agree with any of the presidential candidates. He or she can still make their wish knowable by entering a blank ballot paper in the ballot box. Such (protest) votes should be taken into account by determining the ‘more than half of all the votes cast’.

      I agree with your interpretation of a shallow judgement. The court does not deny the many anomalies but concludes that these did not compromised the free and fairness of the elections. However the reasons why this did not compromised the free and fairness is not extensively explained. However it is not up to the court to prove this. It is up to the petitioner to prove that it compromised the elections.

      The court ordered the scrutiny of all the forms 34 (33,400) to get an impression of the size of the anomalies though only 18,000 forms 34 were scrutinised.
      The full judgement of Supreme Court verdict states the following;

      [169] On 25th March 2013, the Court ordered the scrutiny of all Forms 34 and Forms 36, which were used in the country’s 33,400 polling stations. The purpose of the scrutiny was to better understand the vital details of the electoral process, and to gain impressions on the integrity thereof.

      [172] With respect to the scrutiny of all Forms 34 which were used by the IEBC in tallying the Presidential election votes, from the 33,400 polling stations in the country, only 18,000 polling stations were scrutinized. It was found that Forms 34 were missing in some polling stations such as: Zowerani Primary School, Kilifi North Constituency; Show Ground, Kapenguria Constituency; Nakatiyani Water Point, Loima Constituency; and Mjanaheri Primary School, Magarini Constituency. In addition, the aggregate results of Form 36 voters from 75 constituencies were missing.

      That almost ½ of the ruling addressed the rejected votes petition is an invalid argument. The length or size of a petition does not say anything about the quality of the court process and verdict.

      I do not think the IEBC is excused by the Supreme Court. The court has instructed an audit of the IEBC for the many anomalies.

      The electoral process had many anomalies and there is no dispute about this. The IEBC did not do a first class job. Difference of opinion is about the conclusion if the anomalies compromised the free and fairness of the elections. The court verdict says no, it still was free and fair. I agree with the court verdict though many disagree. However how can you prove that the integrity of the electoral process was compromised to the extent that the election results should be nullified? Pointing to the anomalies is not enough proof.


      • Jansinteur,

        My initial post was to give a bit of context. I don’t have much time this evening, but there is an issue that was raised by CORD. The number of votes cast for the presidency exceeded the number of votes cast for the other positions (though they compared the presidential candidate votes cast against the gubernatorial candidates). The difference between the votes cast for the presidency against the governor positions was 1.7 million. An analysis that was carried out found that the vast majority of these votes were in Jubilee strongholds. Unfortunately without the EVID there was no simple way to get to the bottom of this problem. There is no way someone can go to the polling station and be given only the presidential ballot. The drill was that you deposit your identity documents with the first clerk and only fetch your ID after getting all the 6 ballot papers. In this case if you choose to mess up the other ballot papers, it should be accounted for under the spoilt votes. This was clearly a case of giving voters more than one ballot paper. In the case of the manual register, to fix this ‘problem’ the clerk in charge of that aspect simply needs to cancel out the entry of another voter who hasn’t voted and all will be ok. In the case of the EVID it would have been a lot easier to conduct the verification. I will hopefully cover the other aspects tomorrow.


      • Siguda,
        Votes cast for the presidency exceeded the number of votes cast for the other positions

        I take your word for it being a fact as I am unable to analyse the election results. The IEBC does not give access to the results on their website.
        What does this fact mean (a difference of 1.7 million votes between President and Governor)?
        We don’t know as the voter was not asked to explain. It is left to our imagination.
        Did voters felt the vote for President was much more important as for Governor?
        Did the presidential campaign stimulated voters more than the campaign for Governor?
        Did someone rig the voting at polling station level, but how without raising suspicion of the observers in the polling station? Your presumption that the difference should affect the spoilt votes does not have to be true. Spoilt votes are counted from ballot papers found in the ballot boxes. What happened if a voter accepts the 6 different ballot papers but places only the ballot paper for president in the ballot box?

        It is the attitude in which we interpreted facts. A conspiracy minded person will conclude an intentional act of sabotage while an objective rational thinking person will come to the conclusion that there are not enough facts to conclude and will search for more facts.
        Raila presented many facts for the court though none strong enough to conclude the electoral process was not free and fair. It needs a conspiracy attitude to conclude the process was not free and fair. Searching for more facts has gone lost. The IEBC did a poor job though as a judge to nullify elections needs more than a perception of circumstantial evidence.
        Nullifying the elections without solid evidence will have its repercussions in society. Just think about the consequences.

        I like to stop participating in this discussion as we did not come to an understanding what we are discussing. Almost all contributors in this discussion elaborate on anomalies though there is no disagreement about the anomalies. The discussion I like to follow is about how we come to the conclusion the electoral process was not free and fair. How could additional facts be found to justify such a conclusion?

        Even when you present another massive amount of anomalies it will not justify the conclusion the elections were not free and fair. We need factual information what the impact of all these anomalies were for the integrity of the elections. The massive anomalies are conclusive for the competence of the IEBC.

        Thanks for the discussion.


    • Siguda,
      • I agree with you.
      • The whole affairs can be summarized as follows
      • Previously there was no computerized system for the elections.
      • The computer systems (if we can collectively call the BVRs EVID etc. that) were introduced for checks and balances.
      • We needed checks and balance because the manual system was prone to manipulation and had always been manipulated.
      • Failure of the 9 billion kit meant that we went back to the manipulation prone manual system (hence square one).
      • Remember that the manual system has never been free and fair and there is nothing to say that the use of the same this time around would have been different.
      • This is the heart of the matter.
      • The kits were not for decoration whose removal would not impact on the elections fairness; otherwise we would not have spent the names amount on them. They were a critical component of a free and fair electoral process.
      • The elections could have been free because all were allowed to cast their vote BUT there is no way it could have been fair because we never know in whose pot ones vote ended up or even if dead people voted.
      • This is what the lazy bones at SCOK were supposed to look into, which they never did.
      • Even though you state that the 6 people at SCOK are sharp legal minds. We will never know if they were influenced by outside forces or the made the shallow judgment due to fear. How do explain the indepth lack of legal analysis in their ruling or even quoting none existent sections of the law? Personally, I dont a problem with Mutungas arrogant presentation of the ruling, the issue I have with him is the none existent deep analysis of the evidence. For a man with PhD he and his bunch are not worth sitting on that bench.


  7. Johns,

    We have a new president and the power balance between the Status Quo and progressive forces is tilted towards the status quo though the struggle for a better Kenya is far from lost.
    Kenya has made great strides forward though we have to defend the progressive gains as the Status Quo will try everything in their power to move us back where we came from.
    One of the strides forward is the institute of the Supreme Court with a true impartial CJ. The Status Quo would be delighted if they could influence the legislature and replace the CJ with a ‘like minded’ judge.

    Now look who is calling for the replacement of the CJ. Amazingly it came from progressive minded people. The loud voices discrediting the Supreme Court and disgracing the CJ came from here. Naturally the Status Quo has gladly joined the coir of mudslingers blaming W. Mutunga of accepting a bribe.

    I think you have rendered a service to the Status Quo forces with publishing your opinion here.
    Are you still of the opinion that the Judges have to go?
    Shouldn’t we try to defend the bench of the Supreme Court and everything people have fought for now the pain of losing the elections must have subsided?


    • Jansinteur,

      Progressives are not called so because their faith is vested on individual, rather they are, because their set of beliefs is anchored on principles. Once the short changing of that principle is affirmed by action or lack of by their member, they are at liberty to assess and offer recommendation without prejudice.

      There is an old German proverb: “A lie can not go very far, for it has short legs.” Willy Mutunga chose to fry himself in his own fat and there is nothing anyone can do to rescue neither his reputation nor his bench from ridicule.

      He can complain all he wants about not being accorded justice, but is it not hypocritical of him to demand justice from Kenyans when he himself and a bunch of tired lazy judges failed to give Kenyans the same justice he now begs for? The only avenue left for them is to honorably resign as majority of Kenyans have now lost faith in the institution he heads.


      • OkOnGo,

        You mention a kernel point; ‘Progressives’ have their faith vested on individual principles. They are individuals disconnected from group principles at liberty to comment on anything without restrain.
        I have difficulties to define groups and group principles in our society. It is difficult to discover the principals of “Vested interest” or ‘The powers of Change’ even CORD or Jubilee has no defined principles. There are no cohesive principals in our society other than tribe though also tribe principles are undefined. This is why expressions as ‘Like wise’ and ‘The African way’ are used which are interpreted by the individual in any way they like.
        There is no Conservative, Liberal, Social Democrat, or Communist groups or political parties. Our society consists of disconnected individuals without group principles. We never comment on group principals or institutions. Our comments are always directed to individuals as we cannot discover any institutional or group principals.

        Everyone can comment on anything without worrying about the consequences for groups or society as a whole. The only worry is for personal consequences though these seem to be on distance from our homestead when we blog or publish opinions. The individual votes without considering the consequences for his personal circumstances as it is not aware of these. This is why we vote on tribe as this is the only group principal known.

        The Individual does not consider the consequences of losing Dr Willy Mutunga as CJ. The individual perceives it will make no difference for his personal circumstances though it will. We have freedom of speech and have a free choice to publish what we like though we have no influence on the consequences. The consequences will hit us in due time. We know where hate speech leads us and still think it will not hit us personally.

        Our society is in great need of social cohesion. It needs community and nation builders defining groups within our society other than tribe which the individual can identify itself with.

        Dr Willy Mutunga calls for Justice. Justice is to connect our action with its consequences. We are responsible for our actions inclusive the consequences. There can be no Freedom without responsibility.

        Justice = Freedom with Responsibility
        Freedom without responsibility = Impunity


      • OkOnGo1958,
        I completely agree.
        There is a feeling, false feeling from some quarters that if Willy Mutunga is removed things will be worse than they are today. I beg to differ because, the CJ seems to be some kind of conman who had planned and perfected his con game for a long time.

        Having conned his way into our hearts and we believed him when he said that he was going to reform the judiciary and do things differently. Little did we know that he would be the first to break the very principles that he laid down. How would we have known that in the year 2013 and with 40 million Kenyans watching the man would arrogantly and dismissively address us. How would we have known that a man with a PhD would not take time to do thorough analysis of the most important ruling in his life?

        Lawyers from Ghana, Nigeria and Botswana have variously condemned the ruling as a sham. Coming to think about it, that is what it is.

        CJ Willy Mutunga has firmly fixed himself on the side of impunity. No more no less.


  8. CJ Mutunga denies bribery claims during Raila’s petition

    Chief Justice Willy Mutunga took to the social media on Monday morning to deny claims that he was bribed during Raila Odinga’s presidential petition by against election of President Uhuru Kenyatta

    Dr Mutunga, in a statement, said he has never been bribed and urged Kenyans to show respect to members of the Judiciary.

    In a facebook posting titled “The Judicairy demands justice from Kenyans”, the Chief Justice said allegations of bribery during the petition caused him anguish, and he could have personally arrested whoever attempted to do so.

    “For me the most hurtful allegation was that I had been bribed in the Presidential Petition. I did not know where to turn. I have never been offered a bribe in my life. I have no doubt in my mind that anybody who dares offer me a bribe, regardless of status, would be the first one I arrest under the Constitution and the laws of this land,” said Dr Mutunga.

    In his posting, the Chief Justice recounted instances on social media in which members of the Judiciary were targets of public vitriol.

    Dr Mutunga additionally urged Kenyans to treat members of the Judiciary with fairness.

    “Recently the Judiciary, and particularly the Supreme Court, has been the target of attacks from Kenyans. We have been the target of attacks, slander, libel, and outright indecent, vulgar, and unacceptable abuses.

    “All I can demand from Kenyans is justice that they demand of me and the Judiciary I head. We must give justice to each other in implementing our progressive Constitution.

    “I acknowledge that public service means accountability to Kenyans. However, the same Constitution Kenyans use to demand accountability of us, and they invoke it for the protection of their freedom of speech, and for their right to public participation, also demands justice for judges and magistrates. The Constitution does not decree that Kenyans are not accountable for their actions!

    “I urge Kenyans to give us justice! To do so is simple. If you have any evidence of our wrong doing the Constitution under its Article 168 allows you to petition the Judicial Service Commission for our removal. And if you do not have such evidence then give us justice, treat us as family, compatriots and fellow human beings!” said Dr Mutunga’s posting.

    Last Wednesday, the Chief Justice fired a fiery tweet at his critics, telling them to distinguish him as an individual and the Supreme Court

    Dr Mutunga, by being the Chief Justice, is the President of the Supreme Court that rejected a presidential election petition by former Prime Minister Raila Odinga that challenged the election of President Uhuru Kenyatta.

    In its judgement, the Supreme Court said Mr Odinga failed to prove that Mr Kenyatta did not get the required votes to qualify as President-elect. (READ: Supreme Court releases judgment on presidential petition)

    In the 113-page detailed judgement, the court said that it considered all the evidence presented by Mr Odinga and his co-petitioners in the matter and concluded that the evidence did not warrant nullification of Mr Kenyatta’s victory.

    On Tuesday a Kenyan activist and a US scholar told a forum held in Washington that the judgement rendered by the Supreme Court damaged to its credibility. (READ: Supreme Court was ‘loser’ in Kenya election, forum told)

    Maina Kiai, head of a civil society organisation in Nairobi, and Joel Barkan, a US think tank expert on African governance issues, both suggested that the court should have ordered a runoff between Uhuru Kenyatta and Raila Odinga.


    • einsten,
      We will never know how this man, CJ Willy Mutunga has let the country down and turned the back the hands of the clock of justice backwards until after the next elections 2017. Perhaps then people will again refuse to go to court because doing so will be an act in futility. He has set the pace, space and mood for not going to court. Let the man resign, Kenyans wont miss him. Besides, no one should pretend that if Mutunga were removed we would not get a better CJ. We will. There are Kenyans out there who are sharper and more courageous that the now disgraced CJ. Aiishie bure kabisa.


  9. And now Dr. Willy Mutunga is feeling the heat and loses his cool on twitter!

    CJ Mutunga fires a fiery tweet at critics

    Chief Justice Willy Mutunga. PHOTO/ FILE

    Chief Justice Willy Mutunga on Wednesday told his critics that there was a distinction between him as an individual and the Supreme Court.

    “Need for mental shift! The Supreme Court is neither Mutunga’s Court nor am I the Supreme Court!” Dr Mutunga said on his twitter handle.

    Dr Mutunga, by being the Chief Justice, is the President of the Supreme Court that rejected a presidential election petition by former Prime Minister Raila Odinga that challenged the election of President Uhuru Kenyatta.

    In its judgement, the Supreme Court said Mr Odinga failed to prove that Mr Kenyatta did not get the required votes to qualify as President-elect. (READ: Supreme Court releases judgment on presidential petition)

    In the 113-page detailed judgement, the court said that it considered all the evidence presented by Mr Odinga and his co-petitioners in the matter and concluded that the evidence did not warrant nullification of Mr Kenyatta’s victory.

    On Tuesday a Kenyan activist and a US scholar told a forum held in Washington that the judgement rendered by the Supreme Court damaged to its credibility. (READ: Supreme Court was ‘loser’ in Kenya election, forum told)

    Maina Kiai, head of a civil society organisation in Nairobi, and Joel Barkan, a US think tank expert on African governance issues, both suggested that the court should have ordered a runoff between Uhuru Kenyatta and Raila Odinga.


    • Jansinteur,
      I respect your sentiments but just like the Supreme Court judgment it lacks in logic.
      Being a telcom software consultant, I deal with software’s that process millions of call data records per day. Infact, just last week I was dealing with one operator that processes 9 million records a day. The software that we are using receives the records from the MSCs then process and rates (puts a price) on them. Records that are corrupt or have problems are simply sent and stored in a separate file. The file is later reprocessed and rated after the errors have been corrected. In otherwords, nothing is lost and every record is accounted for. Imagine that we did not have such credible and traceable process. Would the operator even know the amount of subscriber activity in his network? And who would like to be a customer or partner of such an operator?

      It is such a process that the IEBC had but ignored using. It was therefore impossible to know their numbers and that alone was enough to nullify the elections. Since the IEBC systems cost 9 billion, I believe that there were processes for checks and balances that were deliberately interfered with by the IEBC. I therefore don’t buy the idea of incompetence. Sabotage is more like it.

      Secondly, the audit that the court ordered was not for nothing. If it showed anomalies, which is did, simple class five mathematics should have been logically applied i.e. if in 22 polling stations there were Y number of anomalies, then in33000 polling stations there would be 33000*Y /22. If the results were found to be greater than 8300 votes then a rerun was to be ordered.

      I do believe that the Supreme Court and Willy Mutunga worked in cohorts with IEBC to kill CORDs petition at the behest of external forces, knowing full well that the alliance had nowhere to turn to after the decision.

      Lets not try making excuses for IEBC. Its run by thugs


      • thank you mzee

        its inconceivable to have such massive failure of systems that are not even interconnected. the only real possibility is supply of fake or defective devices in which case full refund must be sought or there was sabotage.

        Jan if you were the CIO of this system that experiences “mass failures” would you really say that your staff were incompetent? really? what would that say about your own capability as CIO?

        get real man, IEBC ICT implementation was sabotaged, we know it, they know it, we have accepted and have moved on. but we can still interrogate the facts.

        30,000 incompetent staff handling IT equipment, wow, IEBC was surely short sighted

        if that was the case, then they should have employed goats to handle their IT and we would not have noticed the difference, except they’d save a ton of cash


      • Mzee,
        I think the context in which we discussing technical aspects are to form an opinion if failures are an intentional act of sabotage or just a matter of incompetence. However the final objective of this discussion is to form an opinion if these failures did influence the concept of free and fair election. If the failures had none or marginal influence than the technical discussion becomes academic.

        Back to the technical aspects
        You are right; we are surrounded by IT systems with capacities which make the supporting IT systems of the electoral process look like dwarfs. Take Mpesa, electronic banking systems or the telecom system transferring billions of data items without a single hick-up to the right place within milliseconds.
        However these IT systems all went through a design, testing and maturity phase in which many failures where encountered (I stood at the cradle of E-mail).

        The electoral IT supporting systems did not go well through this design, testing and maturity phase. This implies incompetent project management. There was a time constrain for design, test and failure correction. Not enough time for operators to learn and become familiar with the system and a belated voter registration process. The failure of the system started in the pre-trajectory of decision making, budget allocation and purchasing. It resulted in a hastily design and implementation phase. It is just the classic failure of project management.

        The IEBC was advised by several professionals but ignored this for what I think out of time constrain. The IEBC did spend 9 billion though were rather pushed into this as they already had decided to go back to just the manual system. They entered the hope and fear phase keeping the IT supporting system as it was just a secondary system to produce preliminary data and results.

        The Supreme Court ordered an audit of the Forms 34 but they have not published the result or even gave an explanation why they ordered this. However your simple class five mathematics do not hold water. Figures are not known to us.

        I do not believe in conspiracy plots unless there are some facts. Guts feel, disappointment or ‘it is said’ from the grapevine is not enough to disgrace individuals or breakdown institutions we build to secure a better Kenya. Anyway the Supreme Court came to a unanimous decision.

        Rest us the question; was the electoral process within the margin to be defined as free and fair?
        I am not making excuses for IEBC though evaluate all available factual information and use my experiences to form an opinion.


      • tnk
        I do not state all IEBC staff is incompetent. The project management team that implemented the IT project made several decisions which resulted in failures during the elections. However they made these decisions in difficult circumstances as public expectations were set high and the time constraint set for March 4. How could they decide to cancel the project when realising that the risk factor for a smooth implementation was rising? The IEBC had no power to delay the elections and made the right decision to cancel the IT project and go back to the manual system. However the government stepped in and pushed them to reverse this decision.

        I do not know what I would have decided as CIO.


      • Jan
        whenever possible i try to be specific, when not possible i generalise

        here is what you said on this post

        There was also a time constraint and operators were insufficiently or not trained to handle the EVID kit.

        there are 30,000 odd polling stations – so i called you out on this and make the assumption that there was at least one “operator” per poll station

        and thus made this statement

        30,000 incompetent staff handling IT equipment, wow, IEBC was surely short sighted

        i was highlighting this statement to tell you that the level of incompetence that you suggest does not exist. the company would die long before that.

        am not saying that all IEBC staff are incompetent.

        am saying that you cannot attribute this failure to incompetence.
        if all of them were not trained right, that is sabotage
        if they were not given the correct equipment or resources, that is still sabotage

        you are free however to promote the notion that somehow these guys don’t quite get IT and cannot power up and inter-connect the devices even after being trained and there was no tech support to back them up.
        generally it suggests that IEBC has no experience in rolling out IT to offer such basic tech support service either directly or through some after sales vendor service.
        if that floats your boat, please feel free to sail on. myself i choose to walk on water.


      • Jansinteur,
        Its great that we are discussing this issue.

        I don’t know why you are saying that we don’t know the number. I will put it to you that we know that numbers only that Willy Mutunga and his bunch never took them into consideration in the ruling. On the final day of submission lawyers were given time to comment on the concluded audit of 22 polling stations. It was pointed out by senior counsel Oraro, Kethi Kilonzo among others that there were anomalies in 10 of the 22 polling stations audited. Infact the exact number of additions and subtractions of votes were clearly spelt out. The defense agreed that that while there were anomalies, they were not deliberate. That was their only argument. They never contested the fact that anomalies existed. My question is this; why did SCOK not do any analysis on the data? And if they did why did they not give us the results? What was the point of ordering the audit then ignore the results? Did they ignore results because they pointed towards a re-run? I hope that Williy Mutunga sees the reason people believe he and his colleagues were bribed.

        But the deadliest thing the SCOK did was to accept that the elections were free and fair with 25% of forms 34 missing and 10 returning officers having not delivered results as required by law. What the SCOK is telling Kenyans is that if the anomalies are up to 25% then this does not amount to elections being unfair. In my opinion, the fact that the IEBC declared the elections without verifying 25% of the results is enough to nullify the election regardless of what the numbers were.

        Technically, I see that you want to excuse the IEBC by claiming that “electoral IT supporting systems did not go well through… design, testing and maturity phase”. To accept the above explanation would be akin to letting a murderer off the hook because they thought that the panga they used to chop the victims head off was not sharp enough. When the IEBC went around the world looking for a system, they were looking for a system that had gone through all those faces. After all the election was to counter the mayhem of 2007, it was a life and death for Kenyans. The issue of immature system does not arise therefore.

        I cannot see where the issue of incompetence on the part of IEBC personnel comes in unless it’s for the purposes of cover up. I will put it to you that the IEBC deliberately gave wrong passwords to their colleagues in the field. They then went ahead to give them laptops that were faulty. Why do I say this? Remember that Isaak Hassan told us that they had bought generators for all polling stations to counter power failure. How come that the same generators could not charge the laptops? Lastly how did systems that were not interconnected fail all at once? You see, when your fridge breaks it does not affect your TV or does it? But this is what the IEBC is telling us and this is what Willy Mutunga has accepted and ticked as right. See why some are calling CJ Willy Mutung a sellout and worse? Nothing makes sense.


    • It’s not about Willy Mutunga as he thinks, it’s all about the ruling he guided, namely IEBC vs Raila Odinga presidential petition. Had he tried a little harder to even take a few seconds to reason, we would be telling another story.

      If he were not beholden to the status quo he would have made the right decision by calling for a rerun. The rerun was not going to disenfranchise anyone. Infact it was going to open one more opportunity to have a clear cut winner. If it’s true that Uhuru was ahead by 800K votes, then there would be nothing preventing him accomplishing the same in a runoff. By blatantly ignoring evidence and even refusing to analyse the courts own audit, Willy Mutunga and his SCOK judges not only killed the legitimacy that Uhurus presidency would have enjoyed but also ended up angering majority of provinces in Kenya. But the worst of all is that we are back to square one as far as trust of the judiciary is concerned. Rightly or falsely people believe that the SCOK was coerced or even bribed to arrive at the faulty decision.

      Mutungas cry for justice has flatly fallen on deaf years for justice is earned and he has not earned the same by his ruling of the petition. Given that this is probably the only presidential petition ruling he will probably ever participate in, it’s a big shame.

      Crying aloud that Kenyans should somehow assume that he is just Willy not SCOK is a joke of the highest order. In fact it’s an insult. We cannot blame bricks and mortar that hold the court house for mistakes that CJ Willy Mutunga guided his judges to make. As a matter of fact the back stops by him. That’s why he is “chief” justice. The CJ should borrow from football, where couches resign after bad performance or perceived poor show by their teams, even though they never personally step into the field to play. In this case Mutunga was both a couch and a player so there is even more reason for him to go. No one will miss him. 40 million Kenyans gave him the chance. He blew it big time. Since he thinks that this is the right way to go, it’s better that he steps aside before he makes a mess of the entire court system. Yes, he has employed more judges, increased their wages, gave them new attire BUT where is justice? Crying like a baby after having made a grave mistake that’s will be talked debated and discussed for many generations to come is funny.


  10. Supreme Court too casual in ‘Raila Vs IEBC & Others’

    By Elisha Ongoya

    On 30th March 2013, the Supreme Court delivered its unanimous decision in what had been billed as “the most important case of our time”. This was the very last day that the Supreme Court had, in law, to decide matter.

    The Court then ordered that “the detailed judgment containing the reasons for decision of the Court will be issued within two weeks from today.” This latter aspect was part of the orders of the court.

    On 16th April 2013, the 16th day from the date of the decision, the court sat to deliver the decision. No explanation was given for the delivery of the decision outside the timelines set by the court. This omission, to an observer of the judiciary’s recent investment in courtesy, was telling. This was casual.

    The practice of court is that when the court summons parties in open court as it did, it reads its judgment, dates and signs it. Again, the judgment was never read. The Chief Justice pronounced the manner in which the decision was to be disseminated and the process ended up being a witnessing of the “signing ceremony” of the decision.

    This, for what had been billed as “the most important case of our time”, was casual.

    The content of the judgment will definitely be a subject of detailed inquiry by the general public. This space is scarcely sufficient for such detailed inquiry. However, certain snippets from the judgment would give us the degree of seriousness with which the judges treated the matter that was before them.

    One of the instruments of implementation of the mandate of the Supreme Court in Kenya is the Supreme Court Act. At Section 3, the Act sets out its objectives and therefore the objectives of the Court.

    I suggests that a sound detailed inquiry of the soundness or otherwise of the decision of the Court in this matter should be reflected against this very sound statutory objectives of the institution.

    The judgment reveals lots of material internal inconsistencies in the reasoning. I have selected a few aspects for this contention. On whether rejected votes ought to have been included in determining the final tally of votes in favour of each of the candidates by the IEBC, the court restated the express provisions of article 138 of the constitution which requires that for a person to be declared president-elect, such person must, among other things have received “more than half of all the votes cast in the election”.

    The court proceeded to reason at paragraph 260 of the judgment: “What are “all votes cast?” Do these include even the “rejected votes” which, of course were cast? Or are they limited to the properly marked ballots which figured in the vote tally for the individual candidates?

    It is apparent that the court had acknowledged that in respect of the so called rejected votes, they “of course were cast”. Yet the constitution talks of “all votes cast”.

    Against this background, the court concluded at paragraph 285. This of course begs the question, when are some “cast votes” not “votes cast”?

    What will interest analysts is the court’s reliance on the decision from Seychelles to reach the above conclusion from the Constitutional Court of Seychelles in Popular Democratic Movement Vs Electoral Commission (see para 266).

    What will confound many students of law is that Burhan J was actually a dissenting judge at the Seychelles Constitutional Court in the quoted decision. Can a decision of a dissenting judge be taken as the decision of the court from which it is cited? This too was casual.

    Original record

    Other matters that will interested analysis in this case is whether the court ever complied with its own order or scrutiny and re-tally of votes that it had made on its own motion in the matter.

    Such failure of the court to observe its own orders without any explanation comes across as casual.

    The court further found that from the 33,400 polling stations in the country, only 18,000 polling stations were scrutinised. The question the court never answered was why didn’t IEBC avail the other about 15,000 forms for scrutiny? How verifiable were the results in light of the missing forms? Such lack of interrogation was casual.

    Equally the court found that “In addition, the aggregate results of Form 36 votes from 75 constituencies were missing.”

    If aggregate results in the final results-declaration forms in 75 constituencies were missing, in the court’s own scrutiny of the documents, the court ought to have asked “so what did the Commission declare in respect of those constituencies?” Such a lack of interrogation too was casual.

    And what with the court’s finding that the “Green Book”, though not provided for in law, it is not apparent that such an original record required to be provided for by law? Was the court approving of the conduct of the elections with instruments outside the law? Does that promote the rule of law of arbitrariness? This too was casual.

    From the foregoing it would appear that the judgment of the Supreme Court in Kenya in Raila Odinga Vs The Independent Electoral and Boundaries Commission and Others is a sad commentary on a number of aspects.

    It is a sad commentary on how not to evolve jurisprudence. It is a sad commentary on how not to entrench a culture of constitutional accountability in governance. It is a sad commentary on how not to portray judicial honesty.

    It is a bad example to courts subordinate to the Supreme Court. It is a sad commentary on how not to enhance the confidence of the citizens in the electoral system.

    Writer is an Advocate and Law Lecturer Kabarak University School of Law.


  11. Children get very irrational when things do not turned out as they wish. Irrational because they are single minded focused on their wish. They don’t like considerations of natural feasibilities, required resources, time constraints etc.

    Adults who have the privileges of acquiring objective rational thinking place their wish within the paradigm of reality and consider the feasibility of making their dream come true.

    In this way we could consider the Kenyan dream. The wish for a changed Kenya has made great progress and many of the wishes have become reality. The new constitution and the many new institutions people has fought for and sacrificed are now a part of Kenyan life but we are not there yet.

    Although the constitution is promulgated it still has to establish its guiding concepts in the day to day dealings of Kenyans.
    Also the new institutions have to find their way to operate effectively within the Kenyan society. If we limit this view to the IEBC and the Supreme Court we see a stumbling IEBC trying to manage a hastily implemented IT infrastructure and a Supreme Court handling its first case.
    The IEBC are incompetent to handle an IT project of this size and did make all the basic mistakes. I have been working for years in the IT world and watched the process as a déjà vu of some projects that went terribly wrong during my professional time.

    Reading the full judgement of the Supreme Court of Kenya is a soberly event compared with the televised court sessions. The court recognises several failures in the election process though none of these conclude in a failure of the basic process to hold a fair and free election.

    CORD mention the failures in the electoral process as being ill intended and prearranged. However they did not presented any evidence of this ill intend in the court room. Their arguments were mainly on the technicalities and technical failures of the election process on which they concluded that the process was not free and fair. The court did not support this conclusion. The election system faltered and showed several failures though not to the extent of compromising the concept of free and fair elections.

    Some people now blame the court and particularly the CJ of failing to dispense justice.
    People believe in their Kenyan dream and are not really interested in justice. They are after the ultimate price of a changed Kenya and accept justice when it brings their dream nearer but see justice as a hold back when it delays their dream. The Supreme Court and the CJ is now perceived as a constraint which they like to remove from the path of development like children which have not yet learned the art of objective rational thinking.
    They perceived that the court and the CJ had to make a choice between CORD or JUBILEE (or closer to their heart between Raila and Uhuru). However this choice was up to the people of Kenya and they have chosen.
    The Supreme Court has to decide if the election process was free and fair according to the constitution and the law.

    The CJ is now at the receiving end of mudslinging even people who agree with the verdict are moaning about the way he expressed the verdict. It should have been covered in nice wrapping paper. I disagree with hiding the message under tons of nice words. I praise the court and the CJ to call a spade a spade.
    It gives me an opportunity to face-up with reality and set the proper course to deal with it.
    I think the mudslingers are highly unfair to talk about betrayal of the nation and to those who died fighting for truth. It is going too far and over the limit of civility and personalised on W.M. Mutuga.

    I think some people (including some leaders) were lead astray by their imagination. It is excellent to imagine a better Kenya as to inspire others though imagination cannot deal with reality. We need objective rational thinking if we ever like to capture the ultimate price.

    I like to treasure the gains made and consider the Supreme Court and the CJ as some of these gains. Justice can only be done if we stick to the Law though the law can be an injustice but then we have to change the law and not the court or the judges.

    CORD did not convince the Supreme Court of injustice of the electoral process however Raila and some ODM leaders are still trying to convince the court of public opinion of injustice to be done. I think as a true democrat and law abiding citizen this cannot be done as it create discord between the public and institutional courts.
    The right place to complain is the institutional courts. Raila had his chance to convince the court but failed.


    • Jan

      i agree in principle with a number of observations but not all

      first off – there was systematic failure not of IEBC ICT as people put it but only on the components that could not otherwise be compromised. massive system wide failure of such equipment which was highly priced to safeguard against such failure point to only one conclusion, sabotage. IEBC went with this ploy to hoodwink masses of a credible system knowing full well they had no intention of it succeeding. frauds. further they were already warned severally by different actors that it would fail. playing around with word phrases like the electoral process is manual and not electronic is shrewd and devious. people say they do electronic banking. does that mean there is no manual event in the chain of events? i have asked many times why they did not think it necessary or feasible for results from polling center to be faxed (yes faxed …. the oldest and most reliable communication method of documents) to regional and national centers instead of some obscure SMS. further a fax trail can be easily availed to the agents (picture from cell phone of the fax and transmission results) and everyone can verify at the poll center.

      the SCOK undertook an audit. they discovered anomalies. the petitioners observed anomalies. but here is the paradox. the custodian for the evidence is the very accused. in the absence of a thorough and comprehensive audit done by qualified investigators, but which also must be done when the accused persons cannot tamper with the evidence, it would be difficult to uncover. the SCOK was well aware of this. those judges have seen investigations that last several years with accused persons behind bars to prevent interference.

      it is said that hassan altered forms from regional tally centers to correct anomalies, that is incredulous. Hassan had only a single duty and that is enter data from the regional center and if incorrect then he must enter the data from the polling center as provided. nothing else. he cannot change the data from the polling center because that is inventing or creating facts. if there is an error from the polling center he cannot correct it since it is the result of a direct count and not a computation. he had only two choices accept as is or reject entirely. he cannot downsize or upsize the result given. he cannot assume the agent meant one number or another when counting and he cannot alter the register after the fact. the SCOK messed up big time in this area

      that is the reason we all so badly wanted to see the polling center numbers and the registered numbers per center. it is this part that kethi tried very hard and valiantly to bring up but IEBC with the assistance of SCOK turned this into the amazing feat of sticking jello to wall with a nail.

      the standard was any evidence of malpractice. it was not for the SCOK to defend the actions or even impute the intentions of IEBC. that was partisan and strays from the path of justice. the SCOK can also not make the decision that results would have favored one or the other. their job was to determine if there were flaws. and they did uncover flaws.

      if they really want numerics. if in a poll center there are only 50 flawed votes (or stuffed if you will) in favor of one candidate. there are 30,000 poll centers or a cool 1.5m votes which is approximately the so called margin. This is intelligent stuffing because it remains under the radar except for those polling centers that were returning numbers greater than registered (ooops scale back). of course in strongholds you can jack that number up by 500

      anyway the CJ takes the flak because he more than anyone else understands personally the machinations of anti-reformists and therefore up to that ruling, was a held at a higher standard than others. like all mediocre persons, and there are many, he buckled. we are disappointed, like any parent of a bright child that turns into a homeless drug addict. we’ve been there before, and we will rise from the ashes.

      like you say, we are already enjoying the fruits of the new constitution that is a milestone achievement for the many that have fought to bring us reforms

      i even laugh when anti-reformers now praise uhuruto as some kind of geniuses who are doing nothing but following the constitution to the letter in appointing 18 professionals to cabinet secretaries yet this is clearly spelt out in the constitution.

      it is like giving a standing ovation when someone puts the left shoe on the left foot, and the right shoe on the right foot. …. genius….

      however, on the plus side, uhuruto are grandmasters of dog and pony shows. the prayer rallies, round the country airlifts, show stopping caravans etc.

      the announcement of cabinet secretaries similarly takes this showbiz hollywood approach to new and giddy levels. and kenyans as always are in a hurry to sweep under the rug any dirt so that they can go back to their fun loving carefree lifestyles until the next crisis. they have embraced the showbiz and have moved on


      • Supreme Court was ‘loser’ in Kenya election, forum told

        NEW YORK – The election decision rendered by the Supreme Court is damaging to its credibility, a Kenyan activist and a US scholar declared at a forum held in Washington on Tuesday.

        Maina Kiai, head of a civil society organisation in Nairobi, and Joel Barkan, a US think tank expert on African governance issues, both suggested that the court should have ordered a runoff between Uhuru Kenyatta and Raila Odinga.

        The two commentators agreed that while Mr Kenyatta clearly won a larger share of the vote than Mr Odinga did on March 4, there was reason to suspect that Mr Kenyatta’s actual tally did not exceed 50 percent.

        The court made a “political decision” in its ruling that a runoff was not required, Prof Barkan said. Calling its unanimous opinion “very shallow,” Mr Barkan said “the court itself was the big loser” and had “essentially undermined its own authority, going forward.”

        Mr Kiai used similar language in criticising the court’s performance, characterising its election ruling as “one of the most shallow judgments I have ever seen.”

        “As civil society,” Mr Kiai added in his remarks at the National Endowment for Democracy, “we’re not challenging the results — we’re challenging the process. It’s important to set the bar higher for future elections.”

        There is “no way we can change the fact that Uhuru Kenyatta is president of Kenya,” Mr Kiai said.

        But he pointed to what he said were many small-scale manipulations of voting results that, taken together, enabled Mr Kenyatta’s reported tally to exceed the 50 percent threshold.

        tnk wrote:

        “if they really want numerics. if in a poll center there are only 50 flawed votes (or stuffed if you will) in favor of one candidate. there are 30,000 poll centers or a cool 1.5m votes which is approximately the so called margin. This is intelligent stuffing because it remains under the radar except for those polling centers that were returning numbers greater than registered (ooops scale back). of course in strongholds you can jack that number up by 500”

        Prof Barkan did not offer as firm a conclusion in his assessment of the election results.

        “I don’t think we’ll ever know whether they won 50 percent plus one,” he said in regard to Mr Kenyatta and Deputy President William Ruto. “My own sense is they did not, but they did win a plurality.

        I don’t think the vote was stolen, but the election was a highly incompetent one.”

        Mr Kiai added that the focus should now be on how Mr Kenyatta and Mr Ruto respond in the coming months to the cases brought against them in The Hague.

        “The ICC is the only game in town in terms of accountability,” Mr Kiai said.

        Prof Barkan offered a different view, saying, “The ICC did itself a disservice” in its handling of the Kenyatta/Ruto cases. He cited lengthy delays in the court’s process, suggesting that former Chief Prosecutor Luis Moreno Ocampo did not serve the court well.

        In considering where advocates of democracy in Kenya should place their attention, Prof Barkan said, “I wouldn’t focus so much on the ICC case. I would focus on whether Uhuru will stick to the very admirable markers he laid out in his inauguration speech.”


      • tnk

        There is a common understanding of the failures of the electronic systems. The differences are the conclusions people make as a result of these failures. I cannot support your conclusion of sabotage. I have to go a bit in detail why I think it was incompetence and not an intentional act of sabotage.
        The electronic system started with capturing voter identification data. This part went relatively well although there was an unnecessarily time constrain in training operators as a result of the chaotic purchase process of the BVR kits. I do not think this was done with the intention to create failure of the voter registration process. The captured data resulted in the voter registration list which gave every registered voter the opportunity to verify if he/she was on the list. This list was amended by the IEBC but I accept the explanation for the reason to register people who could physically not comply with the requisites of the BVR system.
        The next step is the voter identification at the polling station. This was done with EVID equipment. Between the BVR and the EVID systems there is a gap and danger point in the project. Some data from the BVR has to be loaded into the EVID which is a semi manual process and thus prone to human error. The BVR and the EVID although two different items purchased from different suppliers had to be merged into one system. The integration of these two items seems to have lead to some failures. There was also a time constraint and operators were insufficiently or not trained to handle the EVID kit.
        I think the manner in which this process was implemented shows incompetence on how to manage the project and not an intentionally act of sabotage.

        The wordplay in defining if the election process was an electronic or manual system is insignificant and I cannot see anything shrewd or devious in this. It is very clear that the voting system is a manual system based on hard copy paper. It is the misunderstanding of the public what an electronic voting system means.

        The reporting and tallying system was intended to have two parallel routes; one prime route of the manual system forwarding the form 34 to tallying centres where they were compiled in form 36 for transport to the national tallying centre Bomas. The other route was the forwarding of the form 34 results via electronic transmission to an electronic data centre at Bomas. The tallying of results in this route was an implicit function of the electronic data centre. This route and electronic tallying system could only provide preliminary results and had no legal definition.

        I think your preference for FAX communication is past its used date for several technical reasons.

        The SCOK audit discovered anomalies though no one disagree that the system showed failures. It is the conclusion people connect to these failures that brings disagreement. Did it compromise the fair and free election process or not?

        I don’t know if Hassan altered forms as your source of information is that ‘it is said’. I cannot comment on ‘it is said’ sources and we cannot blame the Supreme Court or the CJ for not dealing with this ‘it is said’ information.
        I do know that ‘it is said’ information is often information that we like to hear and believe as factual however we should take care to use this information as factual as it will lead us astray from reality and disable us to deal with reality in an effective way.

        You are right that the source of voting data (form 34) will give the public the possibility to check if the tallying process is correct or not. The President of the Supreme Court did order a re-check the forms 34 of all the polling stations (none of the petitioners requested this data). The results of this re-check have not been published but must have given the judges inside of the size of anomalies.
        Please note the forms 34 data is no guaranty for integrity as also this data can be defraud.

        Your description of ‘if you really want numbers’ is more imaginative as realistic. Polling stations are under the scrutiny of party representatives and other observers. It is this imagination that leads quickly to ‘it is said’ and ‘massive evidence’ steering negative emotions of others and land us in a court room without evidence. Let’s search and stick to facts.

        Anti-reformist tries to control the world the same as reformists. Assuming that only anti reformists machinate to achieve their objectives and that the CJ personally understand this is just your assumption.

        Kenya made tremendous progress especially when I compare Martha Karua in 2008 defending on BBC TV the election of Kibaki compared with the full judgement of the Supreme Court of 16 April 2013. I think we could enjoy the fruits of the progress made but above all defend this progress.
        Defence start with understanding your opponents. I wouldn’t laugh about Uhuruto as grandmasters of dog and pony shows, the prayer rallies; round the country airlifts, show stopping caravans etc. They won the elections and I think fairly. I like to learn from them how they did this starting from a position as underdog. I would like to know the motives why people voted. Is it fear, promises of a better future, specific items, promises of a laptop, feeling of belonging, promises of security? I wonder if the faculty of social science from the Universities do research in this area.


        • jan

          am having trouble understanding this spin

          The next step is the voter identification at the polling station. This was done with EVID equipment. Between the BVR and the EVID systems there is a gap and danger point in the project. Some data from the BVR has to be loaded into the EVID which is a semi manual process and thus prone to human error. The BVR and the EVID although two different items purchased from different suppliers had to be merged into one system. The integration of these two items seems to have lead to some failures. There was also a time constraint and operators were insufficiently or not trained to handle the EVID kit.

          would you care to elaborate? thanks


      • Tnk
        I am not related to the IEBC and have not been involved in the electoral process. My understanding of the technical process is perceptual compiled from bits and pieces of information released by the IEBC.

        The IEBC introduced an electronic identification process to avoid double or impersonating of registered voters. This was done by means of an Electronic Voter Identification Device. The fingerprints of the voter were compared with the earlier recorded fingerprints of the voter during the voter registration process. The recording of the fingerprints during the voter registration process was done by BVR devices and electronically stored in a data base.
        Part of this data had to be loaded into the EVID devices applicable for the specific polling station. This creates a critical process were three entities are involved; the BVR – data base – EVID. Each of the entity owners takes responsibility for their entity though no one takes responsibility for the integrated process. Problems can and probably did arise in the transfer of data from the BVR to the EVID devices such as missing or corrupted records.


        • Jan

          i have not said or implied that you are in the inner sphere of IEBC. many of us in these forums are IT or management professionals and have worked with security processes ranging from simple magnetic readers to biometric scanners. its not rocket science, the scanner may be a complex device, but the connecting back end process itself is not. trying to mystify this is for impressing the public not techies and not CIOs

          its simply a scanner (capture) attached to a computer. that computer will either record captured data into a database (in this case the EVID) or use the data to search the database. from the IEBC notes, the question was either to have a single EVID database with remote connection services or distributed (local database). they opted for distributed. we have no details on how they structured the distributed database (partial or complete). arriving at corrupted records or missing records is something quite unbelievable. it would have been detected at distribution long before (weeks) the voting began. the polling centers had as low as 1 record to a high of 8000. many IT professionals process millions of transactions per day, and thousands of records. distributing 10,000 error free records to a database given more than 1 month is not some amazing feat. missing or corrupt records would have been captured months before. also the printed localized registers are in fact the distributed databases. i can go on and on. the point is this. if you analyse the failures of ICT, you get the sense that there was an attempt to ensure that ICT was made to appear to have failed and unreliable. a deliberate attempt to ensure that the process reverted to a manual process.

          in order to do this, they targeted the ICT in phases. first was the reported failure of some of the scanners, (if you know these devices, scanners cannot intermittently fail), there are other way to make these devices “fail” and this lies in the sabotage alley. then as you say there was the disconnect to the local EVID this is the spin i was questioning. the only way for this to fail is if a center has the wrong reference database, i highly doubt that an IT professional can do that. finally the reported failure in the transmission process. this is the only area where initially there was a technical hitch due to a configuration error, its the disaster recovery procedures that are suspect in that they resolved to go manual.

          you obviously do not get the import of a fax like transmission. at the remote site, form 36 is filled in and wet ink signatures appended. this is the only true verifiable record that needs to move forward. you capture this form electronically including the signatures as an audit trail. this is the only document that the national tally center should reference in the event of a dispute or error. if the error is on form 36 the law states you disregard all data on that form (polling center results are trashed). period. there is no fudging of subsequent form 34 to “correct anomalies or tallies”. the RTS was supposed to ease burden of input and reduce transcribing errors. but a copy of form 36 whether a picture or scan certainly would not hurt while awaiting the wet ink original. FYI fax is simply a scan, you can either email the image or transmit image direct to another device via phone line (fax) or take a picture of the form with a mobile phone and send the picture as a multimedia message. the idea here is to generate a credible and verifiable audit paper trail. we really sometimes exaggerate non existent complexities of applying very simple technology. people do this to justify and secure funding hence the jump in cost from 3bn to 9bn, but in practice the individual modules are usually not that complex.

          large scale ICT implementations are susceptible to failure, but the specific failures itemized in this exercise point to sabotage and not technology malfunction. all technology malfunctions would have been detected much earlier, and the reason the cost shot to 9bn was because IEBC ostensibly pro-actively put in place some disaster recovery processes and devices. for instance they had charged and ready spare batteries per laptop with EVID besides UPSs and yet some of these laptops could not fire up due to low battery, really?



      • tnk
        We getting into a technical discussion about an IT system we have no in-depth information. I did set the scale of my comments by mentioning that I do not belong to the inner sphere of the IEBC and my understanding of the technical process is perceptual. A detailed discussion is therefore of low factual content. However I like to make the following general comment;

        IT systems are designed to replace manual systems replacing human intervention by electronic devices. IT systems are a development over time maturing into almost failure proof systems if they can reduce the human interventions to almost zero. However new systems still have a high level of human intervention which are the source of failures. The supporting IT system for the electoral process is fairly young needing substantial human interventions. Our opinions differ about the motivation of the human errors. You are of the opinion these human failures are of ill intent and prearranged. I see these failures mainly as incompetence of human skills.

        Systems would not start-up because of low battery power. Yes there were spare batteries, UPSs though batteries have to be charged which require human intervention to connect them to power sources and not every polling station is connected to electrical power.

        Failures occur even with the batteries of the new BOEING 787 Dreamliner.

        Anyway failure of the IT support system is no criteria for the fairness of the election process as its function was to provide preliminary information.


    • jansinteur

      You can defend Uhuru Kenyattas election all you want and term his election as fair and that is within your constitutional right of expression, Just like the IEBC and the SCOK felt it was their right to impose these indicted criminals of the worst kind of charges upon us by all means necessary. Like I said somewhere, these conspirators and saboteurs within the corridors of the now two disgraced bodies will rue the day they allowed their secret schemes to be broadcasted live on our television sets giving us glimpses of their dissonance when weighed against public’s observation.

      No amount of legalities or footsy rubbing by anybody who choose to be their mouthpiece will take away the collective verdict the public has rendered against these two institutions

      You will be hard pressed to find even amongst the supporters of Uhuru Kenyatta who can offer the inconsistency of the number of votes read in Nyeri town hall with those read at Bomas tallying center related to the same county among others.

      Just like the supreme court of Kenya found glaring anomalies within the re-tallying of their own ordered 22 polling stations but would not give explanation why these anomalies and inconsistency meant squat in terms of verifiable truth and seeking of redress by petitioners.

      Why 75 out of 291 constituencies still have their form 36 unaccounted for but SCOK allowed the IEBC to illegally announce a winner for the presidential contest without the aid of these verifiable numbers?

      Now, do you find that as just and fair in your own opinion? Would you rather we keep quiet and seek no explanation from the final body that has been mandated by our constitution to arbitrate such a dispute? I understand your need to move on and get back with the gravy train and I appreciate your honesty on that, but wont you rather feel assured that your train does not get derailed because the spanner boys checked the bolts and the nuts on the rail line?

      And then you said, CORD did not convince the Supreme Court on their petition. That is a laughable statement because the SCOK is not convincing on the verdict they rendered to Kenyans even forcing the CJ to now make this desperate tweet.


      • It is interesting that the Chief Justice felt enough heat to give his own tweeter response.

        In m y view one of the biggest losers in this whole SC fiasco was Dr. Willy Mutunga. He is right to say that the is not the SC and the SC is not him. The bottom line is that Dr. Mutunga is a big reason the SC has won the respect of Kenyans not just because of his personal history as one of those who stoood up against repression and dictatorship when the heat was maximum but also because as the CJ, Dr. Mutunga has been very committed to making concrete judicial reforms. Kenyans respect Mutunga but they also know the SC will bend backwards to defend the status quo. People are not stupid.

        The other reason I feel sorry for Dr. Mutunga here is that other than being just one judge in the group of six who bangled the petition, Dr. Mutunga is also a legal scholar. He is not a slob who just sits in court. The ruling by the SC is final so it will not face the test of being appealed and torn apart if possible but that ruling is going to be subject of endless scholarly research and all sorts of post graduate thesis where legal minds will explore so many aspects of it. I doubt Dr. Mutunga will ever attend any seminar or lecture series without being told off by some folks on what they think about about the way the SC handled the matter and the other finer details of the ruling.

        Unlike in the Kenyan media where hate mobs unleash all sorts of diatribe on those like Maina Kiai who have had the guts to blast the ruling, in academia folks are free to tear into the ruling and give it the grades it deserves. They will do just that.

        It seems to some people, merely questioning the ruling means one is a Raila supporter, yada yada. It is a pathetic way of seeing things but that is what I see in websites like that of the Daily Nation. There are many areas of the ruling that will invite loads of criticism. The issue of throwing out a ton of evidence presented by the petitioner by way of direct submission when the hearing began is problematic. The SC ruled that the submission was itself a new petition. Legal scholars are going to look into that.

        Then we have the issue of the SC supressing evidence by allowing the IEBC to hide under the mask of not having enough time to do this and do that. If that is the case what is the point of filing such petition in the first place? All the IEBC has to do is claim they have no time.

        The issue of cast votes -v- valid votes also brings its ugly head.

        Then we have the situation where the SC belatedly asks for the IEBC to be investigated for possible criminal liability in purchasing faulty machines and yet the same court already ruled the IEBC did everything properly. The stupidity of the court here is that their purpose if any in finding out if the IEBC bought and used faulty machines is not so much about the criminal liability of IEBC but rather in establishing what the motives of such an action would be. Were such activities part and parcel of the IEBC designing the electronic system to fail as alleged by the petitioner or were they just regular corruption by Kenyan officials. One of the petitioners specfically wanted the IEBC to bring forth the servers they used and to have them tested if they were deliberately designed to fail and also linked with others to give info to one of the candidates. The SC rejected that request after the IEBC claimed they had no time to do that.

        There are very many holes in that ruling and they will come back to haunt the SC and put big damage to the credibility of the SC.

        In terms of where things go from here I do not buy the argument from some of the participants in the forum where Kiai talked who were suggesting that the ICC matter is not a big deal. The ICC matter is the next bomb. It starts May 28, 2013 when Ruto will be required at The Hague. Then Uhuru follows by July 9, 2013. After that it is a war of attrition and the Uhuruto regime will stumble to the bottom of the heap. That will be the only way to go.


      • Johns
        we have to define what we are discussing which is the verdict of the Supreme Court.

        Was the electoral process of March 4 a free and fair process or was it compromised? I had wishes and preferences about the outcome of the election and I have an opinion about the integrity of Uhuru and Ruto though this is no part of this discussion. I have an opinion about the electoral process and the verdict of the Supreme Court and I have given my arguments on which my opinion is based. I am not defending anything as I am not at war. It is just my opinion.

        There are public objections against the verdict of the Supreme Court though it seems presumptuous to define this as collective public verdict on Electoral process the Supreme Court the CJ or the person W Mutunga. I think the public verdict is not so uniform.

        The electoral process was not without anomalies but does this make the electoral process not free and fair?
        Do we have to cancel the outcome of an electoral process when just one single voter is mistakenly denied to vote? One single vote could make the difference between winning and losing but should the electoral process being cancelled when one of the candidates finished with a lead of 10,000 votes? The single vote would not have any influence on the outcome of the election though legally the election is unfair as one voter was denied to vote.

        I don’t think any election will be perfect without any failures. There always will be a margin of error. Defining an electoral process free and fair is a judgement over the error margin. Did anomalies influence the actual outcome or could it be neglected. Did the anomalies of the electoral process of March 4 – which no one disputes – influence the outcome of the election or could it be neglected?
        Dispute start if conclusions are made regarding the influence on the outcome. Different parties conclude differently. This is why we need an independent institution as the Supreme Court to judge the influence of the anomalies.

        There is no need to keep quiet if parties feel anomalies influenced the outcome. Any party could made use of the Supreme Court and demand a judgement. The Supreme Court did their job and provided full judgement. We have no other option than to accept the verdict. That is not laughable even when you feel the verdict is not convincing. It is a choice which everyone has to make to participate in a democratic and lawful society or prefer anarchy and rule of the mob.

        This does not mean that we have to accept the status quo. We still have to work to improve society and build a better future though we have to accept reality and discover effective ways in dealing with reality. Discrediting the Supreme Court or disgracing W Mutunga as person does not seem to be an effective way in dealing with reality.


    • Jan

      you cannot start a technical discussion then want us to gloss over the issues

      let me ask you a question on a very simple issue

      if you have say three laptops

      and each has spare batteries

      and all batteries are charged the night before

      why would all batteries be dead the following day?

      you say incompetence. am trying hard to process that

      its easier for me to see some dolt discharging (shorting) the batteries thats called sabotage

      i cannot see incompetence.

      repeat this for every step on the so called failures.

      ok om distributed database (EVID), it works on some laptops and fails on others. the same software. from the same source, really? it wasn’t tested prior to deployment?

      oh please …….

      if you are going to spin these stories you should apply for some of that money IEBC is dishing out to its defenders,

      but i get your point that incompetence was the problem, i dare you to bring us supporting facts from IEBCs IT department that they are incompetent


  12. I have been pondering and agonizing with this ever since the Supreme Court gave us the middle finger to our collective intelligence, against the mountain of evidence which pointed to a corrupt manipulated, engineered rigging of a scale never endorsed before by a legally constituted ” reformed bench”. I have come to the conclusion that in the absence of auctioning and putting the bench on sale as rumored for their acquiesce to the theft, my mind zeroed on one thing only; that these justices of the bench lacked a simple basic ingredient which our conscience demand us to deploy such a time as this: Imagination.

    The soul without imagination is what an observatory would
    be without a telescope.

    Imagination disposes of everything, it creates beauty, justice,
    and happiness, which are everything to this world.

    The poet’s eye, in a fine frenzy rolling, doth glance from heaven to earth, from earth
    to heaven; and as imagination bodies forth the forms of things unknown, the poet’s
    pen turn them to shape, and give to airy nothing a local habitation and a name, such tricks had a strong imagination.

    As it is, imagination is one of our most powerful faculties. Disciplined, controlled and directed imagination is a mighty instrument that plumbs the depths of our subconscious mind, bringing forth new inventions, discoveries, poems, music, and an awareness of the riches of everything.

    What we should be asking ourselves here is; what happened to each and every of the justices of the bench imagination? Were they too lazy to put it into action? If so what business do they still have sitting on that bench hoping we will be foolish again to hold them in trust?

    Finally, have we all stopped imagining that there are other means and ways of addressing such a betrayal and making sure it does not occur again? BTW, does anyone know what happened to the intergrity case involving the ocampo 2 which had been brought before the supreme court last year, has Mutunga pocketed that one too?


  13. mr.mutunga and his team to resign peacefully .Is only GOD who will bring the right judgment and justices to the people of kenya..i will never believe in the suprem courts again.God bless kenya.


    • No one can be as infallible as God however God’s justice is always a perception and is not done or seen to be done in reality (and he never publish his full judgement). We have no better option as to use the institutions we have established. It’s maybe better to look for ways to improve the Supreme Court as to replace Mr. W.M. Mutunga by God.


  14. I feel your pain my brother. It is our collective pain as a nation, at least those who have undergone injustice in Kenya since independence. I hope to rise up again soon after this 7th. fall and augment your views with mine as soon as possible. At the moment I am still lost for words!

    Is this still the same Dr. Willy Mutunga we fought so hard to catapult up there?

    But hey, one of the SC judges ( I think it was either Justice Jackton Ojwang’ or Smokin Wanjala), who ordered Nazlin to shut up in court because according to him justice cuts both ways and hence no need for Nazlin to be heard! And he made Nazlin shut up right in front of CJ Dr. Willy Mutunga! Can you imagine that?!

    The fuacking bastards threw out two cases/petitions without a hearing based on technicalities even though our very own constitution forbids that! Which law is now supreme in Kenya when the commoner, who originated the constitution, cannot even be heard?

    Is this the fuacking thanks we get and deserve from Dr. Willy Mutunga after all the shit struggle all those years of which he claims to have been part of?

    More to follow when and if I find time.


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