A statement in the minority judgement delivered by Justice Njoki Ndung’u has caused excitement among Jubilee supporters.
In her lengthy dissenting opinion, the judge posed a number of hypotheses that have suggested that President Uhuru Kenyatta’s could be upheld by Supreme Court.
Among the hypothesis considered was that of a scenario where a few constituencies failed to vote as a result of a violence.
In the aftermath of the October 26 election, Jubilee Party supporters have been anxious that the failure by some Nyanza constituencies was likely to jeopardize President Kenyatta’s election.
However, paragraph 680 of Ndung’u dissenting opinion has suggested that the Supreme Court was likely to look at the impact of constituencies that failed to vote, against the outcome of the votes.
The ruling has been widely circulated on social media platforms and Whatsapp groups.
The IEBC had announced that the approximated 1.2 Million voters that were unable to vote could not have affected the outcome of the repeat election given that the Jubilee candidate had by far surpassed the 50 percent threshold.
Here is Judge Njoki Ndungu’s analysis of the matter.
Let us put this in context in a hypothetical situation: assuming there is a Constituency with 55,000 registered voters. On Election Day, two candidates supporters in that Constituency create a violent atmosphere where voters are intimidated, pulled out from stations, agents‘ vehicles torched and election officials harassed. The situation is such that there can be no elections in that constituency.
But in all other Constituencies nationwide, the election has proceeded properly, with the fore-running presidential candidate obtaining more than half of all the votes cast in the election and at least twenty-five of the votes cast in each of more than half of the Counties. The votes from that Constituency, even if cast, would not affect the constitutional threshold necessary to declare the results of the election.
Can we nullify that entire election because there was violence, intimidation and voters in that Constituency did not vote? That is the test the Court should apply and it would consider the following questions: