RAILA V. KENYATTA A LEGAL VIEW FROM THE DIASPORA

The declaration made by the IEBC that President Uhuru Kenyatta has defeated challenger Raila
Odinga in the just concluded presidential elections is now the subject of an Election Petition in
the Supreme Court of Kenya. The hearing has been concluded and the Judges have retired to
consider their ruling on the matter. Being a Kenyan in the Diaspora, I wish to share the following
views regarding the issues in the Petition. The Petitioner is seeking a drastic if not staggering
relief-the invalidation of a presidential election.
Let me begin by quoting a passage from a classical U.S Election case very similar to the Petition
aforesaid.
"Undeniably the Constitution of the United States protects the right of all qualified citizens to
vote, in state as well as in federal elections. 1 " Qualified citizens not only have a constitutionally
protected right to vote, 2 but also the right to have their votes counted 3 , a right which can neither
be denied outright, 4 nor destroyed by alteration of ballots, 5 nor diluted by ballot box stuffing. 6 The
reason for such constitutional protection is clear: The right to vote freely for the candidate of
one's choice is of the essence of a democratic society, and any restrictions on that right strike at
the heart of representative government…. …. … `No right is more precious in a free country than
that of having a voice in the election of those who make the laws under which, as good citizens,
we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.' ….
… Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.
Especially since the right to exercise the franchise in a free and unimpaired manner is
preservative of other basic civil rights, any alleged infringement of the right of citizens to vote
must be carefully and meticulously scrutinized. Duncan v. Poythress, 657 F.2d 691, 700 (5th Cir.
1981).
The Duncan case I think lays down a universal principle that all courts in a democratic system of
government should consider when dealing with election challenges.
The Constitution of Kenya 2010 in Article 38 (3) and the Elections Act 7 clearly spell out this
right.
“An adult citizen shall exercise the right to vote specified in Article 38(3) of the Constitution in
accordance with this Act. (2) A citizen shall exercise the right to vote if the citizen is registered
in the Principal Register of Voters.”
In the famous Florida case of Gore v. Harris, 8 the Florida Supreme Court stated:
"the voters here did everything which the Election Code requires when they punched the
appropriate chad with the stylus. These voters," the Court said, should not be disenfranchised
where their intent may be ascertained with reasonable certainty simply because the chad they

punched did not completely dislodge from the ballot. Such a failure may be attributable to the
fault of the election authorities for failing to provide properly perforated paper, or it may be the
result of the voter's disability or inadvertence. Whatever the reasons, where the intention of the
voter can be fairly and satisfactorily ascertained, that intention should be given effect.”
This court should not, under the appearance of enforcing election laws, defeat the very object
which those laws are intended to achieve. To invalidate a ballot which reflects the voter’s intent,
simply because a machine cannot read it, would subordinate substance to form and promote the
means at the expense of the end. Hester v. Kamykowski, 150 NE 2d 196 – 1958.
I believe all parties agreed that the election was imperfect in the manner in which the results
were managed. There were grievances arising from the handling of the ballots as well as the
manner in which they were of counted, aggregated, transmitted and announced. 9
In the process of resolving questions arising out of the conduct of elections, courts here have
always tried as much as possible to be guided by the legislative intent. This means the faithful
and objective construction of the constitution and all the statutes controlling an election. In doing
so however, the intent of the voter remains paramount.
B. Guiding Principles

''The real parties in interest here, not in the legal sense but in realistic terms, are the voters. They
are possessed of the ultimate interest and it is they whom we must give primary consideration.
The contestants have direct interests certainly, but the office they seek is one of high public
service and of upmost importance to the people, thus subordinating their interest to that of the
people. Ours is a government of, by and for the people. Our federal and state constitutions
guarantee the right of the people to take an active part in the process of that government, which
for most of our citizens means participation via the election process. The right to vote is the right
to participate; it is also the right to speak, but more importantly the right to be heard. We must
tread carefully on that right or we risk the unnecessary and unjustified muting of the public
voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the
sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that
right.'' 10
“We consistently have adhered to the principle that the will of the people is the paramount
consideration. Our goal today remains the same as it was a quarter of a century ago, i. e., to reach
the result that reflects the will of the voters, whatever that might be. This fundamental principle,
and our traditional rules of statutory construction, guide our decision today.” 11
The questions before the court in my view should be:
1. Whether the law offers protection against those rare, but serious, violations of election
laws that undermine the basic fairness and integrity of the democratic system.
2. Whether the law protects against innocent irregularities in the administration of
elections, and if those irregularities operated so unfairly as to constitute a denial of due
process. 12

"In general, garden variety election irregularities do not violate the Due Process Clause, even if
they control the outcome of the vote or election." 13 Examples of such "garden variety"
irregularities as identified by the federal courts include: malfunctioning of voting machines, 14
human error resulting in miscounting of votes and delay in arrival of voting machines, 15
allegedly inadequate state response to illegal cross-over voting, 16 mechanical and human error in
counting votes, 17 technical deficiencies in printing ballots, 18 mistakenly allowing non-party
members to vote in a congressional primary, 19 and arbitrary rejection of ten ballots. 20
It would appear to me that the entire Petition is an attack on the manner in which the IEBC
managed the election and does not raise any questions of misconduct by the candidates or their
agents. Though not every irregularity however serious warrants the invalidation of election
results, certain circumstances do favor such drastic action. The resolution of the following issue
will be key:
C. Did the actions or omissions of the IEBC seriously undermine the

fundamental fairness of the electoral process?

“In view of such limitations, this court set forth the following guide for determining whether a
particular challenge to a state election practice rises to a level deserving of federal protection: 21
“…….. the determination that particular conduct constitutes a constitutional deprivation rather
than a lesser legal wrong depends on the nature of the injury, whether it was inflicted
intentionally or accidentally, whether it is part of a pattern that erodes the democratic process or
whether it is more akin to a negligent failure properly to carry out the state ordained electoral
process and whether state officials have succumbed to `temptations to control … elections by
violence and by corruption ….” 22
So the proper inquiry by the court should not be whether certain violations of election laws and
rules occurred but the nature of those violations and whether the violations rose to the level of
undermining the entire democratic process. The intent of the IEBC officials becomes an issue if
the violations occurred as a result of an objective to control the elections by corruption or some
other nefarious actions.
Despite this broad authority enjoyed by the IEBC over the scope and conduct of elections, the
courts should not hesitate to step in when IEBC actions have jeopardized the integrity of the
electoral process.
In one case for instance 23 , a U.S court voided a state election and ordered a special election —
with full recognition of the "[d]rastic, if not staggering" nature of this relief — because racially
discriminatory practices in the administration of a local election rose in constitutional
significance far above the usual claim of election irregularities. 24
It is my view that there will never be perfect elections. The contentious nature of elections and
the passions whipped up create an environment where perfection is impossible. But the courts do
have a role and must clearly define their role without necessarily immersing themselves into the

nitty gritty mechanics of election skirmishes or the administrative details of election
management.
The courts have a legitimate role and can properly invalidate an election in circumstances akin to
the following:
a) A case where state officials failed to notify prospective candidates of new and rigorous
ballot placement procedures and then denied these candidates an adequate opportunity to
examine nomination petitions which had been disqualified. 25 .
b) A case where election officials offered the electorate absentee ballots which were later
declared invalid on the ground that state law precluded their use in the challenged
election. 26
“If the election process itself reaches the point of patent and fundamental unfairness, a violation
of the due process clause may be indicated and invalidation therefore in order. Such a situation
must go well beyond the ordinary dispute over the counting and marking of ballots.” 27
“Federal courts have properly intervened when] the attack was, broadly, upon the fairness of the
official terms and procedures under which the election was conducted. The federal courts were
not asked to count and validate ballots and enter into the details of the administration of the
election. Rather they were confronted with an officially-sponsored election procedure which, in
its basic aspect, was flawed. Due process, `[r]epresenting a profound attitude of fairness between
man and man, and more particularly between individual and government,' … is implicated in
such a situation…. In cases falling within such confines, we think that a federal judge need not be
timid, but may and should do what common sense and justice require”. 28

Conclusion

If the petition implicates the very integrity of the electoral process, then it is a fair challenge. If
the IEBC officials denied the Kenyan electorate the right granted by law to choose a President,
then the Supreme Court is faced with "patent and fundamental unfairness" in the electoral
process.
The Petitioners I assume, are not asking the court to count ballots or otherwise enter into the
details of the administration of an election. Their request is far simpler and more basic: they ask
for the election itself, as required by law.
In my view, the petition should have been characterized as a "constitutional deprivation” rather
than a litany of allegations of legal wrongs.
The entire case ought to have been characterized as the entire electorate having been deprived of
the right to participate in an election. One district court stated that it "can conceive of no more
fundamental flaw in the electoral process than the deprivation of the right to vote altogether." 29

The court therefore should seriously consider, without hesitation, whether the IEBC violated the
guarantee of the right of the voter to be free from the purposeful decision of IEBC officials to
deny the citizens the right to vote in an election mandated by law.
Japheth N. Matemu, LL.M
Attorney at Law,
Member of the Bar of the Supreme Court of the United States.
j.******@ma*******.com
www.matemulaw.com

Foot notes:
1. Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506 (1964).
2. Ex parte Yarbrough, 110 U.S. 651, 45 S.Ct. 152, 28 L.Ed. 274 (1884)
3. United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915)
4. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939)
5. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941),
6. United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944)
7. Elections Act CHAPTER 7. Revised Edition 2012 [2011] (including amendments thereto).
8. Gore v. Harris, 772 So. 2d 1243 – Fla: Supreme Court 2000
9. Presidential Petition 1 of 2017
10. Boardman v. Esteva, 323 So. 2d 259 – 1975 – ‎Fla: Supreme Court
11. Gore v. Harris, 772 So. 2d 1243 – Fla: Supreme Court 2000
12. Duncan v. Poythress, 657 F.2d 691, 699 (5th Cir. 1981)
13. Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998).
14. Hennings v. Grafton, 523 F.2d 861,. 864 (7th Cir. 1975).
15. Gold v. Feinberg, 101 F.3d 796, 800 (2d Cir. 1996)
16.  Curry v. Baker, 802 F.2d 1302, 1314. (11th Cir. 1986)
17. Bodine v. Elkhart County Election Bd., 788 F.2d 1270, 1272 (7th Cir. 1986);
18. Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983)
19. Powell, 436 F.2d at 85-86
20. Johnson v. Hood, 430 F.2d 610, 612-13 (5th Cir. 1970).
21. Gamza v. R Aguirre T, 619 F. 2d 449
22. Duncan v. Poythress, 657 F.2d 691, 701 (5th Cir. 1981)
23. Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967)
24. Duncan v. Poythress, 657 F.2d 691, 702 (5th Cir. 1981)
25. Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970) — Duncan v. Poythress, 657 F.2d 691, 702 (5th
Cir. 1981)
26. Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978). — Duncan v. Poythress, 657 F.2d 691, 702 (5th Cir.
1981).
27. Duncan v. Poythress, 657 F.2d 691, 703 (5th Cir. 1981)
28. Duncan v. Poythress, 657 F.2d 691, 703 (5th Cir. 1981)
29. Duncan v. Poythress, 657 F.2d 691, 703-04 (5th Cir. 1981)