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PROFESSOR PLO LUMUMBA’S “FROM JURISPRUDENCE TO POLIPRUDENCE: THE KENYAN PRESIDENTIAL ELECTION PETITION, 2013” IS AN EGREGIOUS PIECE OF ACADEMIC THEFT
By Wachira Maina
If that old saying that imitation is the sincerest form of flattery is true, then I am in clover. In his 10,000 word essay, From Jurisprudence To Poliprudence: The Kenyan Presidential Election Petition 2013 published in the current issue of the Law Society of Kenya Journal nearly 5000 words are lifted verbatim from my article “Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test” published in the East African Newspaper of April 20, 2013. Though I should feel flattered by this liberal imitation, I don’t. There are a couple of token footnotes in the essay making reference to my article. Those footnotes are particularly duplicitous because what they do not disclose- because quotation marks are omitted - is that what Professor Lumumba has presented as his own original work to the Journal of the Professional association to which he belongs and for which he trains future practitioners is a flagrantly plagiarized verbatim reproduction of the work of another.Since I am a judge in my own cause, I will keep commentary to a minimum. Instead I will quote extracts both from my “Five Reasons” and then quote offending extracts from “Poliprudence.” As any open-minded reader will see, this is plagiarism so egregious I believe that PLO is unfit to teach at the School of Law or to hold the title of Professor. The extracts are organized in terms of the themes covered in the two articles.
A) The substantive first part of my article has the sub-heading “Backward looking, mean-spirited, cramped Nigerian precedent” Professor Lumumba first substantive discussion of the issues after outlining the facts and the background (happily this was not copied from any source I know of) is sub-headed “Onus of Proof: Supreme Court’s Reliance on Mean-spirited Nigerian Precedent”.
In “Five Reasons” I opened the question in this manner:
“Let us start at the beginning. Central to the Court’s judgment is what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court says that the answer to that question is “well exemplified” in Nigerian case law. Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure.In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.But the Supreme Court has also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None that one can readily see.
In “Poliprudence” Professor Lumumba edits out “Let us start at the beginning” and proceeds:
“Central to the Court’s judgment was what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court said that the answer to that question was “well exemplified” in Nigerian case law. Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure. In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.”In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.But the Supreme Court also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None.”
The only change that he has made to the extract from Five Reasons is that at the end of the passage, Professor Lumumba ends his paragraph at ‘None” and cuts out “that one can readily see.”
“Five reasons” then explains why the standard of proof set out by the Supreme Court makes no sense. I argue:
“All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?”“Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC — or a similar body — it is extremely difficult to see how a petitioner could ever succeed.“This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.
In “Poliprudence” Professor Lumumba opens the same discussion with article 259 of the constitution. For the next 88 words he is explicating that article. Having dispensed with Article 259 he continues:
“All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?” Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC, or a similar body, it is extremely difficult to see how a petitioner could ever succeed. This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.”
The next part of my article argue that
“The effect of this new standard is that a petitioner who questions the IEBC’s maths, as Raila Odinga and Gladwell Otieno did, is then subject to the same standard of proof as a person who says that a president-elect has won by corruption, bribery and conmanship” and then concludes that:“This is a giant jurisprudential step backwards. But even more troubling is whether this is the standard that the Court actually used in deciding these petitions. The judgment is completely hazy about what standard of proof it has applied to what issue in order to answer the specific questions raised in the petitions. But the court takes even bigger steps backwards in relying on the Nigerian cases. The point at issue is what effect IEBC’s illegalities should have on the validity of an election. The relevant law is Section 83 of the Elections Act. That Section is not a model of clarity. Paraphrased, it says that to invalidate an election in Kenya because of irregularities or illegalities either one of two conditions, but not necessarily both together, must be met.One, that the election has not been conducted according to the principles laid down in the Constitution and in written law or, two, that though the irregularities and illegalities have not violated constitutional principles they have affected the result of the election. The use of the word “or” in this section means that these two conditions are not cumulative, either one of them is sufficient.But that is not how Attorney General Githu Muigai, the Supreme Court of Kenya and the Nigeria cases cited as authorities are reading this provision. They say, instead, that the two conditions are cumulative. This means that a petitioner must prove that illegalities have been committed and also that those illegalities have affected the result.”In law, “affect the result” means that without the illegalities somebody else, other than the person who won, would have taken the election. For Raila Odinga, this means that he was expected to prove that illegalities were committed and also that without those illegalities he would have won the election.But since the Court has created a new standard of proof, it seems that he needed to prove that he had won the election beyond reasonable doubt. The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr Odinga could show that the irregularities were so gross that everything about the election is in doubt. Such success in Court would not necessarily be to his benefit. The scale of illegalities could be such that he was unable to show beyond reasonable doubt that he, rather than fellow contestant Musalia Mudavadi, would have won the election. In that case, the result announced by IEBC would stand. This, surely, cannot be good law.
In “Poliprudence” Professor Lumumba’s article omits the paragraph that begins, "The effect of this new standard"...but continues:
“This is a giant jurisprudential step backwards. But even more troubling is whether this is the standard that the Court actually used in deciding these petitions. The judgment is completely hazy about what standard of proof it has applied to what issue in order to answer the specific questions raised in the petitions. But the court takes even bigger steps backwards in relying on the Nigerian cases. The point at issue is what effect IEBC’s illegalities should have on the validity of an election. The relevant law is Section 83 of the Elections Act. That Section is not a model of clarity.”
At this point Professor Lumumba stops the copying to cite the section in full. The sections provide that:
"No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election"
Having dispensed with the legalities he returns to the job at hand:
“Paraphrased, it says that to invalidate an election in Kenya because of irregularities or illegalities either one of two conditions, but not necessarily both together, must be met. One, that the election has not been conducted according to the principles laid down in the Constitution and in written law or, two, that though the irregularities and illegalities have not violated constitutional principles they have affected the result of the election. The use of the word “or” in this section means that these two conditions are not cumulative, either one of them is sufficient.But that is not how Attorney General Githu Muigai, the Supreme Court of Kenya and the Nigeria cases cited as authorities were reading this provision. They said, instead, that the two conditions are cumulative. This means that a petitioner must prove that illegalities have been committed and also that those illegalities have affected the result. At this point Professor Lumumba omits the paragraph in “Five Reasons” that defines what “affect the result” means and then continues:“But since the Court has created a new standard of proof, it seems that he needed to prove that he had won the election beyond reasonable doubt. The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr Odinga could show that the irregularities were so gross that everything about the election is in doubt. Such success in Court would not necessarily be to his benefit. The scale of illegalities could be such that he was unable to show beyond reasonable doubt that he, rather than fellow contestant Musalia Mudavadi, would have won the election. In that case, the result announced by IEBC would stand. This, surely, cannot be good law.”
B) On the problems created by the Supreme Court’s Reliance on Nigerian case-law. The next section “Five Reasons’ article is titled “Questionable Jurisprudence”. Guess what, the next part of Professor Lumumba article is also titled “Questionable jurisprudence”. I argue in my article:
“That we have taken the nastiest Nigerian case law and embedded it in our new Constitution would shock the Nigerians themselves. Indeed a Nigerian colleague who has read the judgment is aghast: “It is tragic that the Court has relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on elections.“In lamenting thus, my friend echoes the views of his senior, Prof Ben Nwabueze, arguably Africa’s most accomplished comparative constitutional lawyer. Reviewing the very case law Kenya has now approvingly borrowed, Prof Nwabueze excoriated the Nigerian Supreme Court for its “discreditable” role in willfully conferring judicial legitimacy on the 2003 and 2007 presidential elections in Nigeria.“He lampooned the judges for failing to “appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”“Another Nigerian scholar points to a more progressive line of cases: Al Haji Mohammed D. Yusuf v. Chief Olusegun A. Obasanjo; Buhari v. Obasanjo and the older case of Swem v. Dzungwe. These cases have applied the principle that best represents the meaning of our Section 83. In applying the first limb of Section 84, namely, that an illegally conducted election is invalid even if the result is not affected, Lord Denning stated the rule thus: An election conducted so badly that it does not substantially comply with the law is invalid, “irrespective of whether the result was affected, or not.”“Another judge explained the reason: “An election which is conducted in violation of the principles of an election by ballot is no real election.” Similar reasoning had applied in the Hackney Case, an earlier decision. In that case, two out of 19 polling stations had been closed all day and 5,000 voters could not vote. That election was invalid.“Conversely, the case of Gunn v. Sharpe applied the second limb of the principle: An election will be held invalid even if it substantially complies with the law so long as the result is affected. Here, the election was invalid because 102 ballot papers that should have been stamped had not been and this had affected the result.“The core issue, to round off this discussion, is straightforward: Which of the two readings of Section 83 would promote the open, democratic, accountable government ethos of the Constitution? Certainly not the backward looking, mean-spirited, cramped reading of the law that weak-kneed Nigerian courts have foisted on the hapless public, and which our Supreme Court so happily borrows.”
In “Poliprudence,” Professor Lumumba cuts out the section from “That we have taken the nastiest Nigerian case law and embedded it in our new Constitution would shock the Nigerians themselves. Indeed a Nigerian colleague who has read the judgment is aghast: “It is tragic that the Court has relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on elections.” In lamenting thus, my friend echoes the views of his senior,” and proceeds, without quotation marks or footnotes:
“Prof Ben Nwabueze, arguably Africa’s most accomplished comparative constitutional lawyer while reviewing the very case law Kenya, through the Supreme Court, has now approvingly borrowed, excoriated the Nigerian Supreme Court for its “discreditable” role in wilfully conferring judicial legitimacy on the 2003 and 2007 presidential elections in Nigeria.“He lampooned the judges for failing to “appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”“Another Nigerian scholar points to a more progressive line of cases: Alhaji Mohammed D. Yusuf v. Chief Olusegun A. Obasanjo; Buhari v. Obasanjo and the older case of Edward Kundu Swem V. Benjamin Ako Dzungwe & Anor. These cases have applied the principle that best represents the meaning of our Section 83 of the Elections Act. In applying the first limb of Section 83 of the Elections Act, namely, that an illegally conducted election is invalid even if the result is not affected, Lord Denning stated the rule thus: An election conducted so badly that it does not substantially comply with the law is invalid, “irrespective of whether the result was affected, or not. “Conversely, the case of Gunn v. Sharpe applied the second limb of the principle: An election will be held invalid even if it substantially complies with the law so long as the result is affected. Here, the election was invalid because 102 ballot papers that should have been stamped had not been and this had affected the result.“The core issue is straightforward: (Only “to round off this discussion’ is omitted), Which of the two readings of Section 83 would promote the open, democratic, accountable Government ethos of the Kenyan Constitution as enunciated in Article 259 of the Constitution? Certainly not the backward looking, mean-spirited, cramped reading of the law that weak-kneed Nigerian courts have foisted on the hapless public, and which our Supreme Court so happily borrowed.”
C) The Voters Register: Having dispensed with the questionable Nigerian Case law, “Five Reasons” then turns to the Voters Register, a section with the sub-title “Voters register: A milk-fed turkey to future fraudsters”.
“So much for the Court turning to Nigerian case law. However, matters don’t improve much when we turn to the second point, the Court’s conclusions on the voters register. Bluntly put, the Court’s decision on this point has kicked open the door to future election fraudsters.“In rejecting the petitioners’ argument that there must be a Principal Register, the Court holds that there is no single document called the “Principal Register of Voters.” What there is, it says, is an “amalgam of several parts prepared to cater for diverse groups of electors.“This, surely, is a non sequitur. It does not follow from the fact that the law accepts that a voters register can be broken down into sub-registers and stored in multiple forms, manual and electronic, that therefore the law does not require the IEBC to “publish and publicise” a principal register. On the Court’s holding, the voters register of the future will be what the IEBC says it is at whatever stage of the election.“Indeed, this is what IEBC appears to have been doing all along these past three months. Four documents have been called Voters Register: the Provisional Register of December 18, 2012 with 14,340,036 voters; the Gazetted Register of February 18, 2013, with 14,352,545 voters; the March Register, given to political parties on the eve of the election with 14,336,842 voters and the March 9, 2013 register which was put out with presidential results with 14,352,536 voters. It is this last, the Green Book, which the Supreme Court now treats as the legitimate Voters’ Register even though there is a Gazetted Register, that of February 18.“Does it matter? On the face of it, it does not seem to. After all, there is a difference of only 12,509 voters between the register of February 18, 2013 and that of December 18, 2012. A difference of less than one per cent of registered voters between the highest recorded and lowest recorded number of voters is, as the IEBC said, statistically insignificant.“Yet if we look behind the small discrepancies between the global totals, we see huge variations in regional and constituency numbers. There are large subtractions from and even larger additions to the register after December 18, 2012.“In open court, during the hearing, the arguments seemed stuck on explaining the 36,236 voters who the IEBC said were physically disabled but eligible voters without biometrics. The Court accepted this explanation; after all, it is hard to criticise the cartel of good intentions, among whom the IEBC numbers.“However, the law is that even disabled people should have registered by December 18, 2012. There is therefore no reason for them to be added to the Register only after the Principal Register has been gazetted, that is after February 18, 2013. But even if one discounts this number, there is still a lot more explaining for IEBC to do.(These additions and subtractions are omitted from Poliprudence) “Consider this: Shortly after December 18, 2012, some 13,790 voters in Coast and Nyanza were subtracted from the register; 50,102 voters were subtracted from the register in Nairobi and 2,938 voters were subtracted from Western Province register. These subtractions seem plausible: They may be cases in which essential personal details are missing and IEBC had to remove the names from the record. But, and this is the question the judgment never asks, why are there also so many additions? In Central Province and Rift Valley, 68,836 voters were added to the register; 6,604 voters were added in North Eastern and 4,222 voters were added in Eastern Province.“All these facts were pointed out in the petitions: IEBC did not explain any of the additions; it did not explain why Makueni Constituency had four different voter registration figures for the presidential election, the governor election, the senator election and for the national assembly election. It did not explain why Othaya Constituency had three voter registration figures: 46,848 at the close of registration; an additional 383 by voting day and a total of 47,293 on the final announcement.“Even more damning, the petitioners said that IEBC had tinkered with the Register in 45 out of 47 counties, adding between 101 and 8,516 new voters in particular constituencies. In Turkana County alone five constituencies got added voters: Loima got an additional 4,519 voters; Turkana Central another 8,516; Turkana East, 1,867; Turkana North an additional 5,122 and Turkana South another 3,957.“In West Pokot County, Kacheliba received an additional 1,911; Kapenguria a further 4,229; Pokot South another 4,988 and Sigor a total of 1,964. The five constituencies in Trans-Nzoia County received 13,288 new voters.“Two questions arise. Are these additions lawful? Would these numbers have affected the result? Since the Court’s judgment does not analyse this evidence, it does not answer either of these two questions. The judgment assumes, without analysis, that the integrity of the Register had no effect on the result.“That is a dubious assumption: Small numbers eventually add up. If you had a computer programme that stole 10 votes per station in 25,000 polling stations, the national tally of stolen votes is a quarter of a million votes. With a fluid register, the theft would never be detected. This means that allowing the IEBC to keep an indeterminate register, as the Court’s decision most surely has done, is to gift a milk-fed turkey to future fraudsters.”
In “Poliprudence, Professor Lumumba edits out “So much for the Court turning to Nigerian case law. However, matters don’t improve much when we turn to the second point, the Court’s conclusions on the voters register” and proceeds:
“Bluntly put, the Court’s decision on this point has kicked open the door to future election fraudsters. In rejecting the petitioners’ argument that there must be a Principal Register, the Court held that there is no single document called the “Principal Register of Voters.” What there is, it says, is an “amalgam of several parts prepared to cater for diverse groups of electors.” “This, surely, is a non sequitur. It does not follow from the fact that the law accepts that a voters register can be broken down into sub-registers and stored in multiple forms, manual and electronic, that therefore the law does not require the IEBC to “publish and publicise” a principal register. On the Court’s holding, the voters’ register of the future will be what the IEBC says it is at whatever stage of the election.“Indeed, this is what IEBC had been doing all along. Four documents had been called Voters Register:
• The Provisional Register of December 18th, 2012 with 14,340,036 voters;
• The Gazetted Register of February 18th, 2013, with 14,352,545 voters;
• The March Register, given to political parties on the eve of the election with 14,336,842 voters; and
• The March 9th, 2013 Register which was put out with presidential results with 14,352,536 voters.
It is this last one, the Green Book, which the Supreme Court treated as the ‘legitimate Voters’ Register’ even though there is a Gazetted Register, dated February 18th2013.“The question we must therefore ask is: Does having a Principal Voter’s Register matter? On the face of it, it does not seem to. After all, there is a difference of only 12,509 voters between the register of February 18th, 2013 and that of December 18th, 2012. A difference of less than one per cent of registered voters between the highest recorded and lowest recorded number of voters is, as the IEBC said, statistically insignificant. “Yet if we look behind the small discrepancies between the global totals, we see huge variations in regional and constituency numbers. There are large subtractions from and even larger additions to the register after December 18th, 2012.“In open court, during the hearing, the arguments seemed stuck on explaining the 36,236 voters who the IEBC said were physically disabled but eligible voters without biometrics. The Court accepted this explanation; after all, it is hard to criticise the cartel of good intentions, among whom the IEBC numbers. “However, the law is that even disabled people should have registered by December 18th, 2012. There is therefore no reason for them to be added to the Register only after the Principal Register has been gazetted, that is after February 18th, 2013. But even if one discounts this number, there is still a lot more explaining that IEBC should have done. ”
At this point Professor Lumumba article omits all the paragraphs in my article detailing the additions to the Voters Register, underlined above, and then concludes:
“Two questions then arise. Were these additions lawful? Would these numbers have affected the result? Since the Court’s judgment did not analyse this evidence, it does not answer either of these two questions. The judgment assumed, without analysis, that the integrity of the Register had no effect on the result. That is a dubious assumption: Small numbers eventually add up. If you had a computer programme that stole 10 votes per station in 25,000 polling stations, the national tally of stolen votes is a quarter of a million votes. With a fluid register, the theft would never be detected. This means that allowing the IEBC to keep an indeterminate register, as the Court’s decision most surely did, is to gift a milk-fed turkey to future fraudsters.”
As is clearly evident, the only thing that Professor Lumumba has helpfully added to my original article are bullet points. I guess for the purpose of putting the conflicting voter registration numbers in sharp relief, a matter I feel most grateful for.
D) Tallying results. The next section of “Five Reasons” turns to the question of tallying and validating final results before they are announced. I write:
“The petitioners argued that provisional results are needed to validate final results. From this it followed that without them, final results are invalid. The Court judgment disagrees. It implicitly reads Regulation 82, and Section 39 of the Elections Act, as imposing no requirement that final results be verified against provisional results. The Court comes to this conclusion in a roundabout way. It asks and then answers a question that was only tangentially before it: Are final results invalid just because provisional results were not electronically transmitted?“Notice though. By framing the issue thus, the Court has erected a straw man that it has then demolished with aplomb. The straw man allows the Court to duck the difficult question of how “to verify and validate final results without provisional results” and to answer, instead, the easier question “whether the means of transmitting provisional results affect the validity of final result.”“Does this matter? The poignant truth is that it does. After the 2007 crisis, Justice Kriegler recommended electronic transmission of results. In the rules that were subsequently drafted, results from polling stations, transmitted electronically, would be provisional. And there are two senses in which polling station results are provisional.“First, in Kenya there is no electoral unit that corresponds to a polling station. Technically then, a result announced by the presiding officer at the polling station is not really a result. Legally, at least in petition law, a result refers to an identifiable winner or loser. To the extent that not a single polling station gives such an outcome, all the results announced there and put in Form 34 are provisional until cumulated with other polling station results to give a final result, whether for the MP, the governor or the president.“Second, the law places polling stations results on provisional “probation” to allow verification before a final valid result can be announced. That process involves cross-checking crucial facts: Have more people voted than are registered? Did ineligible voters vote?“Seen thus, the question of whether the failed electronic transmission of provisional results affects the validity of the final result is a red herring. The point is that transmission failures left IEBC without the means to cross-check and verify tallies in Form 36. But that failure is of IEBC’s own making since they made no effort to gather Form 34s. Without Form 34s, how did IEBC actually verify the final results that it announced to the public?”Manual or electronic“Unfortunately, the way the Court settles this issue allows the IEBC to affirm and deny what it pleases when it pleases. Consider. IEBC says — and the Court agrees — that Kenya’s voting system is basically manual. Electronics are mere facilitators. Once you grant that, the conclusion follows as a matter of logic: The failed electronic transmission could not have affected the validity of the presidential result.“This piece of sophistry should have invited a sharp rebuke: If electronics are surplus to requirement, what safeguards had IEBC put in place to tally and verify final results against Form 34 using the manual system? IEBC never answers that question mainly because it has been allowed to speak from both sides of the mouth: It can impugn technology as failure-prone and also evade the duty to create a fail-safe manual system to do that which the technology should have done.“The lack of clarity in the Court’s judgment about IEBC’s duty to ensure that final results could be verified against provisional results means that the country had to accept whatever numbers the IEBC gave. As subsequent reviews have shown, especially reviews done by Dr Seema K. Shah, the IEBC cannot be trusted with registers, technology or numbers. Dr Shah observed and reported on the Court-ordered tally of the 33,400 constituencies. Her report is a collection of IEBC’s riotous assembly of mis-tallies and contradictions.“
(These next 344 words are omitted from “Poliprudence”)
“Many Form 34s had more votes cast than registered voters. In Turbo constituency, polling station 69, stream 2, some 784 votes were cast but only 755 were registered. In polling station 71, stream 2, there were 741 votes cast but only 716 were registered. In Kacheliba, polling station 112, there were 215 votes cast but only 214 registered voters. In these polling stations, the results should have been cancelled.“In some Form 34s, not all presidential candidates were listed and, therefore, one cannot tell whether they got no votes or that their votes disappeared. In Baringo South, polling station 91, stream 1, only Uhuru Kenyatta, Raila Odinga and Paul Muite appeared on Form 34. In many Form 34s, the numbers do not add up. In Kacheliba constituency, polling station 102, though the votes cast are recorded as 0, there are 170 rejected votes and 170 valid votes. In Baringo South, polling station 117, stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, is 134. In Cherangany, polling station 2, stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, is 340. In Turkana North, polling station 12, the number of votes cast, 340, does not equal the number of valid votes, 340, plus the number of rejected votes (5).“Many Form 34s are missing altogether. There is no Form 34 for polling station 84 or for polling station 99 in Turkana North. Polling station 99 does not appear in the list of polling stations published on the IEBC website on February 24, 2013, but it does appear in the paper gazette. Form 34s for polling stations 92 and 113 in Turkana Central are missing. Looking closely at these numbers, it is not surprising that some of the same constituencies whose the registers had unexplained additions — in Turkana, West Pokot and Trans-Nzoia — have cropped up yet again. Are these coincidences?“
To be fair to the Court, one must ask what by way of report-back, its own scrutineers gave the judges. If they did get this information, why is it not reflected in their judgment? Or is it another case of it would have made no difference? Even if these numbers would have made no difference to the result, do they not in fact disclose that illegalities occurred?”
In “Poliprudence,” Professor Lumumba makes his own case, explaining why final results, in Form 36, need to be validated against provisional results, in form 36. He writes:
“The petitioners argued that provisional results are needed to validate final results. From this it followed that without them, final results are invalid. The Court judgment disagreed. It implicitly read Regulation 82, and Section 39 of the Elections Act, as imposing no requirement that final results be verified against provisional results. The Court came to this conclusion in a roundabout way. It asks and then answers a question that was only tangentially before it: Are final results invalid just because provisional results were not electronically transmitted? “By framing the issue thus, the Court erected a straw man that it then demolished with aplomb. The straw man allowed the Court to duck the difficult question of how “to verify and validate final results without provisional results” and to answer instead the easier question “whether the means of transmitting provisional results affect the validity of final result.”“Does this matter? The poignant truth is that it does. After the 2007 crisis, The Independent Review Commission (IREC) Report (Kriegler Report) recommended electronic transmission of results. In the rules that were subsequently drafted, results from polling stations, transmitted electronically, would be provisional. And there are two senses in which polling station results are provisional:“First, in Kenya there is no electoral unit that corresponds to a polling station. Technically then, a result announced by the presiding officer at the polling station is not really a result. Legally, at least in petition law, a result refers to an identifiable winner or loser. To the extent that not a single polling station gives such an outcome, all the results announced there and put in Form 34 are provisional until cumulated with other polling station results to give a final result, whether for the County Representative, MP, the Governor or the President.“Second, the law places polling stations results on provisional “probation” to allow verification before a final valid result can be announced. That process involves cross-checking crucial facts: Have more people voted than are registered? Did ineligible voters vote? “Seen thus, the question of whether the failed electronic transmission of provisional results affects the validity of the final result is a red herring. The point is that transmission failures left IEBC without the means to cross-check and verify tallies in Form 36. But that failure was of IEBC’s own making since they made no effort to gather Form 34s. Without Form 34s, how did IEBC actually verify the final results that it announced to the public?Manual or Electronic?“Unfortunately, the way the Court settled this issue allowed the IEBC to affirm and deny what it pleases when it pleases. Consider. IEBC said, and the Court agreed, that Kenya’s voting system was basically manual. Electronics are mere facilitators. Once you grant that, the conclusion follows as a matter of logic: The failed electronic transmission could not have affected the validity of the presidential result. “This piece of sophistry should have invited a sharp rebuke: If electronics are surplus to requirement, what safeguards had IEBC put in place to tally and verify final results against Form 34 using the manual system? IEBC never answered that question mainly because it had been allowed to speak from both sides of the mouth: It can impugn technology as failure-prone and also evade the duty to create a fail-safe manual system to do that which the technology should have done.“The lack of clarity in the Court’s judgment about IEBC’s duty to ensure that final results could be verified against provisional results means that the country had to accept whatever numbers the IEBC gave. As subsequent reviews have shown, especially reviews done by Dr Seema K. Shah, the IEBC cannot be trusted with registers, technology or numbers. Dr Shah observed and reported on the Court-ordered tally of the 33,400 constituencies. Her report is a collection of IEBC’s riotous assembly of mis-tallies and contradictions."
At this point Professor Lumumba deletes the next 344 words in “Five Reasons” and then he returns to the copying:
“To be fair to the Court, one must ask what by way of report-back, its own scrutinizers gave the judges. If they did get this information, why was it not reflected in their judgment? Or is it another case of it would have made no difference? Even if these numbers would have made no difference to the result, do they not in fact disclose that illegalities occurred?”
If that old saying that imitation is the sincerest form of flattery is true, then I am in clover. In his 10,000 word essay, From Jurisprudence To Poliprudence: The Kenyan Presidential Election Petition 2013 published in the current issue of the Law Society of Kenya Journal nearly 5000 words are lifted verbatim from my article “Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test” published in the East African Newspaper of April 20, 2013. Though I should feel flattered by this liberal imitation, I don’t. There are a couple of token footnotes in the essay making reference to my article. Those footnotes are particularly duplicitous because what they do not disclose- because quotation marks are omitted - is that what Professor Lumumba has presented as his own original work to the Journal of the Professional association to which he belongs and for which he trains future practitioners is a flagrantly plagiarized verbatim reproduction of the work of another.Since I am a judge in my own cause, I will keep commentary to a minimum. Instead I will quote extracts both from my “Five Reasons” and then quote offending extracts from “Poliprudence.” As any open-minded reader will see, this is plagiarism so egregious I believe that PLO is unfit to teach at the School of Law or to hold the title of Professor. The extracts are organized in terms of the themes covered in the two articles.
A) The substantive first part of my article has the sub-heading “Backward looking, mean-spirited, cramped Nigerian precedent” Professor Lumumba first substantive discussion of the issues after outlining the facts and the background (happily this was not copied from any source I know of) is sub-headed “Onus of Proof: Supreme Court’s Reliance on Mean-spirited Nigerian Precedent”.
In “Five Reasons” I opened the question in this manner:
“Let us start at the beginning. Central to the Court’s judgment is what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court says that the answer to that question is “well exemplified” in Nigerian case law. Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure.In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.But the Supreme Court has also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None that one can readily see.
In “Poliprudence” Professor Lumumba edits out “Let us start at the beginning” and proceeds:
“Central to the Court’s judgment was what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court said that the answer to that question was “well exemplified” in Nigerian case law. Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure. In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.”In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.But the Supreme Court also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None.”
The only change that he has made to the extract from Five Reasons is that at the end of the passage, Professor Lumumba ends his paragraph at ‘None” and cuts out “that one can readily see.”
“Five reasons” then explains why the standard of proof set out by the Supreme Court makes no sense. I argue:
“All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?”“Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC — or a similar body — it is extremely difficult to see how a petitioner could ever succeed.“This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.
In “Poliprudence” Professor Lumumba opens the same discussion with article 259 of the constitution. For the next 88 words he is explicating that article. Having dispensed with Article 259 he continues:
“All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?” Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC, or a similar body, it is extremely difficult to see how a petitioner could ever succeed. This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.”
The next part of my article argue that
“The effect of this new standard is that a petitioner who questions the IEBC’s maths, as Raila Odinga and Gladwell Otieno did, is then subject to the same standard of proof as a person who says that a president-elect has won by corruption, bribery and conmanship” and then concludes that:“This is a giant jurisprudential step backwards. But even more troubling is whether this is the standard that the Court actually used in deciding these petitions. The judgment is completely hazy about what standard of proof it has applied to what issue in order to answer the specific questions raised in the petitions. But the court takes even bigger steps backwards in relying on the Nigerian cases. The point at issue is what effect IEBC’s illegalities should have on the validity of an election. The relevant law is Section 83 of the Elections Act. That Section is not a model of clarity. Paraphrased, it says that to invalidate an election in Kenya because of irregularities or illegalities either one of two conditions, but not necessarily both together, must be met.One, that the election has not been conducted according to the principles laid down in the Constitution and in written law or, two, that though the irregularities and illegalities have not violated constitutional principles they have affected the result of the election. The use of the word “or” in this section means that these two conditions are not cumulative, either one of them is sufficient.But that is not how Attorney General Githu Muigai, the Supreme Court of Kenya and the Nigeria cases cited as authorities are reading this provision. They say, instead, that the two conditions are cumulative. This means that a petitioner must prove that illegalities have been committed and also that those illegalities have affected the result.”In law, “affect the result” means that without the illegalities somebody else, other than the person who won, would have taken the election. For Raila Odinga, this means that he was expected to prove that illegalities were committed and also that without those illegalities he would have won the election.But since the Court has created a new standard of proof, it seems that he needed to prove that he had won the election beyond reasonable doubt. The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr Odinga could show that the irregularities were so gross that everything about the election is in doubt. Such success in Court would not necessarily be to his benefit. The scale of illegalities could be such that he was unable to show beyond reasonable doubt that he, rather than fellow contestant Musalia Mudavadi, would have won the election. In that case, the result announced by IEBC would stand. This, surely, cannot be good law.
In “Poliprudence” Professor Lumumba’s article omits the paragraph that begins, "The effect of this new standard"...but continues:
“This is a giant jurisprudential step backwards. But even more troubling is whether this is the standard that the Court actually used in deciding these petitions. The judgment is completely hazy about what standard of proof it has applied to what issue in order to answer the specific questions raised in the petitions. But the court takes even bigger steps backwards in relying on the Nigerian cases. The point at issue is what effect IEBC’s illegalities should have on the validity of an election. The relevant law is Section 83 of the Elections Act. That Section is not a model of clarity.”
At this point Professor Lumumba stops the copying to cite the section in full. The sections provide that:
"No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election"
Having dispensed with the legalities he returns to the job at hand:
“Paraphrased, it says that to invalidate an election in Kenya because of irregularities or illegalities either one of two conditions, but not necessarily both together, must be met. One, that the election has not been conducted according to the principles laid down in the Constitution and in written law or, two, that though the irregularities and illegalities have not violated constitutional principles they have affected the result of the election. The use of the word “or” in this section means that these two conditions are not cumulative, either one of them is sufficient.But that is not how Attorney General Githu Muigai, the Supreme Court of Kenya and the Nigeria cases cited as authorities were reading this provision. They said, instead, that the two conditions are cumulative. This means that a petitioner must prove that illegalities have been committed and also that those illegalities have affected the result. At this point Professor Lumumba omits the paragraph in “Five Reasons” that defines what “affect the result” means and then continues:“But since the Court has created a new standard of proof, it seems that he needed to prove that he had won the election beyond reasonable doubt. The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr Odinga could show that the irregularities were so gross that everything about the election is in doubt. Such success in Court would not necessarily be to his benefit. The scale of illegalities could be such that he was unable to show beyond reasonable doubt that he, rather than fellow contestant Musalia Mudavadi, would have won the election. In that case, the result announced by IEBC would stand. This, surely, cannot be good law.”
B) On the problems created by the Supreme Court’s Reliance on Nigerian case-law. The next section “Five Reasons’ article is titled “Questionable Jurisprudence”. Guess what, the next part of Professor Lumumba article is also titled “Questionable jurisprudence”. I argue in my article:
“That we have taken the nastiest Nigerian case law and embedded it in our new Constitution would shock the Nigerians themselves. Indeed a Nigerian colleague who has read the judgment is aghast: “It is tragic that the Court has relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on elections.“In lamenting thus, my friend echoes the views of his senior, Prof Ben Nwabueze, arguably Africa’s most accomplished comparative constitutional lawyer. Reviewing the very case law Kenya has now approvingly borrowed, Prof Nwabueze excoriated the Nigerian Supreme Court for its “discreditable” role in willfully conferring judicial legitimacy on the 2003 and 2007 presidential elections in Nigeria.“He lampooned the judges for failing to “appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”“Another Nigerian scholar points to a more progressive line of cases: Al Haji Mohammed D. Yusuf v. Chief Olusegun A. Obasanjo; Buhari v. Obasanjo and the older case of Swem v. Dzungwe. These cases have applied the principle that best represents the meaning of our Section 83. In applying the first limb of Section 84, namely, that an illegally conducted election is invalid even if the result is not affected, Lord Denning stated the rule thus: An election conducted so badly that it does not substantially comply with the law is invalid, “irrespective of whether the result was affected, or not.”“Another judge explained the reason: “An election which is conducted in violation of the principles of an election by ballot is no real election.” Similar reasoning had applied in the Hackney Case, an earlier decision. In that case, two out of 19 polling stations had been closed all day and 5,000 voters could not vote. That election was invalid.“Conversely, the case of Gunn v. Sharpe applied the second limb of the principle: An election will be held invalid even if it substantially complies with the law so long as the result is affected. Here, the election was invalid because 102 ballot papers that should have been stamped had not been and this had affected the result.“The core issue, to round off this discussion, is straightforward: Which of the two readings of Section 83 would promote the open, democratic, accountable government ethos of the Constitution? Certainly not the backward looking, mean-spirited, cramped reading of the law that weak-kneed Nigerian courts have foisted on the hapless public, and which our Supreme Court so happily borrows.”
In “Poliprudence,” Professor Lumumba cuts out the section from “That we have taken the nastiest Nigerian case law and embedded it in our new Constitution would shock the Nigerians themselves. Indeed a Nigerian colleague who has read the judgment is aghast: “It is tragic that the Court has relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on elections.” In lamenting thus, my friend echoes the views of his senior,” and proceeds, without quotation marks or footnotes:
“Prof Ben Nwabueze, arguably Africa’s most accomplished comparative constitutional lawyer while reviewing the very case law Kenya, through the Supreme Court, has now approvingly borrowed, excoriated the Nigerian Supreme Court for its “discreditable” role in wilfully conferring judicial legitimacy on the 2003 and 2007 presidential elections in Nigeria.“He lampooned the judges for failing to “appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”“Another Nigerian scholar points to a more progressive line of cases: Alhaji Mohammed D. Yusuf v. Chief Olusegun A. Obasanjo; Buhari v. Obasanjo and the older case of Edward Kundu Swem V. Benjamin Ako Dzungwe & Anor. These cases have applied the principle that best represents the meaning of our Section 83 of the Elections Act. In applying the first limb of Section 83 of the Elections Act, namely, that an illegally conducted election is invalid even if the result is not affected, Lord Denning stated the rule thus: An election conducted so badly that it does not substantially comply with the law is invalid, “irrespective of whether the result was affected, or not. “Conversely, the case of Gunn v. Sharpe applied the second limb of the principle: An election will be held invalid even if it substantially complies with the law so long as the result is affected. Here, the election was invalid because 102 ballot papers that should have been stamped had not been and this had affected the result.“The core issue is straightforward: (Only “to round off this discussion’ is omitted), Which of the two readings of Section 83 would promote the open, democratic, accountable Government ethos of the Kenyan Constitution as enunciated in Article 259 of the Constitution? Certainly not the backward looking, mean-spirited, cramped reading of the law that weak-kneed Nigerian courts have foisted on the hapless public, and which our Supreme Court so happily borrowed.”
C) The Voters Register: Having dispensed with the questionable Nigerian Case law, “Five Reasons” then turns to the Voters Register, a section with the sub-title “Voters register: A milk-fed turkey to future fraudsters”.
“So much for the Court turning to Nigerian case law. However, matters don’t improve much when we turn to the second point, the Court’s conclusions on the voters register. Bluntly put, the Court’s decision on this point has kicked open the door to future election fraudsters.“In rejecting the petitioners’ argument that there must be a Principal Register, the Court holds that there is no single document called the “Principal Register of Voters.” What there is, it says, is an “amalgam of several parts prepared to cater for diverse groups of electors.“This, surely, is a non sequitur. It does not follow from the fact that the law accepts that a voters register can be broken down into sub-registers and stored in multiple forms, manual and electronic, that therefore the law does not require the IEBC to “publish and publicise” a principal register. On the Court’s holding, the voters register of the future will be what the IEBC says it is at whatever stage of the election.“Indeed, this is what IEBC appears to have been doing all along these past three months. Four documents have been called Voters Register: the Provisional Register of December 18, 2012 with 14,340,036 voters; the Gazetted Register of February 18, 2013, with 14,352,545 voters; the March Register, given to political parties on the eve of the election with 14,336,842 voters and the March 9, 2013 register which was put out with presidential results with 14,352,536 voters. It is this last, the Green Book, which the Supreme Court now treats as the legitimate Voters’ Register even though there is a Gazetted Register, that of February 18.“Does it matter? On the face of it, it does not seem to. After all, there is a difference of only 12,509 voters between the register of February 18, 2013 and that of December 18, 2012. A difference of less than one per cent of registered voters between the highest recorded and lowest recorded number of voters is, as the IEBC said, statistically insignificant.“Yet if we look behind the small discrepancies between the global totals, we see huge variations in regional and constituency numbers. There are large subtractions from and even larger additions to the register after December 18, 2012.“In open court, during the hearing, the arguments seemed stuck on explaining the 36,236 voters who the IEBC said were physically disabled but eligible voters without biometrics. The Court accepted this explanation; after all, it is hard to criticise the cartel of good intentions, among whom the IEBC numbers.“However, the law is that even disabled people should have registered by December 18, 2012. There is therefore no reason for them to be added to the Register only after the Principal Register has been gazetted, that is after February 18, 2013. But even if one discounts this number, there is still a lot more explaining for IEBC to do.(These additions and subtractions are omitted from Poliprudence) “Consider this: Shortly after December 18, 2012, some 13,790 voters in Coast and Nyanza were subtracted from the register; 50,102 voters were subtracted from the register in Nairobi and 2,938 voters were subtracted from Western Province register. These subtractions seem plausible: They may be cases in which essential personal details are missing and IEBC had to remove the names from the record. But, and this is the question the judgment never asks, why are there also so many additions? In Central Province and Rift Valley, 68,836 voters were added to the register; 6,604 voters were added in North Eastern and 4,222 voters were added in Eastern Province.“All these facts were pointed out in the petitions: IEBC did not explain any of the additions; it did not explain why Makueni Constituency had four different voter registration figures for the presidential election, the governor election, the senator election and for the national assembly election. It did not explain why Othaya Constituency had three voter registration figures: 46,848 at the close of registration; an additional 383 by voting day and a total of 47,293 on the final announcement.“Even more damning, the petitioners said that IEBC had tinkered with the Register in 45 out of 47 counties, adding between 101 and 8,516 new voters in particular constituencies. In Turkana County alone five constituencies got added voters: Loima got an additional 4,519 voters; Turkana Central another 8,516; Turkana East, 1,867; Turkana North an additional 5,122 and Turkana South another 3,957.“In West Pokot County, Kacheliba received an additional 1,911; Kapenguria a further 4,229; Pokot South another 4,988 and Sigor a total of 1,964. The five constituencies in Trans-Nzoia County received 13,288 new voters.“Two questions arise. Are these additions lawful? Would these numbers have affected the result? Since the Court’s judgment does not analyse this evidence, it does not answer either of these two questions. The judgment assumes, without analysis, that the integrity of the Register had no effect on the result.“That is a dubious assumption: Small numbers eventually add up. If you had a computer programme that stole 10 votes per station in 25,000 polling stations, the national tally of stolen votes is a quarter of a million votes. With a fluid register, the theft would never be detected. This means that allowing the IEBC to keep an indeterminate register, as the Court’s decision most surely has done, is to gift a milk-fed turkey to future fraudsters.”
In “Poliprudence, Professor Lumumba edits out “So much for the Court turning to Nigerian case law. However, matters don’t improve much when we turn to the second point, the Court’s conclusions on the voters register” and proceeds:
“Bluntly put, the Court’s decision on this point has kicked open the door to future election fraudsters. In rejecting the petitioners’ argument that there must be a Principal Register, the Court held that there is no single document called the “Principal Register of Voters.” What there is, it says, is an “amalgam of several parts prepared to cater for diverse groups of electors.” “This, surely, is a non sequitur. It does not follow from the fact that the law accepts that a voters register can be broken down into sub-registers and stored in multiple forms, manual and electronic, that therefore the law does not require the IEBC to “publish and publicise” a principal register. On the Court’s holding, the voters’ register of the future will be what the IEBC says it is at whatever stage of the election.“Indeed, this is what IEBC had been doing all along. Four documents had been called Voters Register:
• The Provisional Register of December 18th, 2012 with 14,340,036 voters;
• The Gazetted Register of February 18th, 2013, with 14,352,545 voters;
• The March Register, given to political parties on the eve of the election with 14,336,842 voters; and
• The March 9th, 2013 Register which was put out with presidential results with 14,352,536 voters.
It is this last one, the Green Book, which the Supreme Court treated as the ‘legitimate Voters’ Register’ even though there is a Gazetted Register, dated February 18th2013.“The question we must therefore ask is: Does having a Principal Voter’s Register matter? On the face of it, it does not seem to. After all, there is a difference of only 12,509 voters between the register of February 18th, 2013 and that of December 18th, 2012. A difference of less than one per cent of registered voters between the highest recorded and lowest recorded number of voters is, as the IEBC said, statistically insignificant. “Yet if we look behind the small discrepancies between the global totals, we see huge variations in regional and constituency numbers. There are large subtractions from and even larger additions to the register after December 18th, 2012.“In open court, during the hearing, the arguments seemed stuck on explaining the 36,236 voters who the IEBC said were physically disabled but eligible voters without biometrics. The Court accepted this explanation; after all, it is hard to criticise the cartel of good intentions, among whom the IEBC numbers. “However, the law is that even disabled people should have registered by December 18th, 2012. There is therefore no reason for them to be added to the Register only after the Principal Register has been gazetted, that is after February 18th, 2013. But even if one discounts this number, there is still a lot more explaining that IEBC should have done. ”
At this point Professor Lumumba article omits all the paragraphs in my article detailing the additions to the Voters Register, underlined above, and then concludes:
“Two questions then arise. Were these additions lawful? Would these numbers have affected the result? Since the Court’s judgment did not analyse this evidence, it does not answer either of these two questions. The judgment assumed, without analysis, that the integrity of the Register had no effect on the result. That is a dubious assumption: Small numbers eventually add up. If you had a computer programme that stole 10 votes per station in 25,000 polling stations, the national tally of stolen votes is a quarter of a million votes. With a fluid register, the theft would never be detected. This means that allowing the IEBC to keep an indeterminate register, as the Court’s decision most surely did, is to gift a milk-fed turkey to future fraudsters.”
As is clearly evident, the only thing that Professor Lumumba has helpfully added to my original article are bullet points. I guess for the purpose of putting the conflicting voter registration numbers in sharp relief, a matter I feel most grateful for.
D) Tallying results. The next section of “Five Reasons” turns to the question of tallying and validating final results before they are announced. I write:
“The petitioners argued that provisional results are needed to validate final results. From this it followed that without them, final results are invalid. The Court judgment disagrees. It implicitly reads Regulation 82, and Section 39 of the Elections Act, as imposing no requirement that final results be verified against provisional results. The Court comes to this conclusion in a roundabout way. It asks and then answers a question that was only tangentially before it: Are final results invalid just because provisional results were not electronically transmitted?“Notice though. By framing the issue thus, the Court has erected a straw man that it has then demolished with aplomb. The straw man allows the Court to duck the difficult question of how “to verify and validate final results without provisional results” and to answer, instead, the easier question “whether the means of transmitting provisional results affect the validity of final result.”“Does this matter? The poignant truth is that it does. After the 2007 crisis, Justice Kriegler recommended electronic transmission of results. In the rules that were subsequently drafted, results from polling stations, transmitted electronically, would be provisional. And there are two senses in which polling station results are provisional.“First, in Kenya there is no electoral unit that corresponds to a polling station. Technically then, a result announced by the presiding officer at the polling station is not really a result. Legally, at least in petition law, a result refers to an identifiable winner or loser. To the extent that not a single polling station gives such an outcome, all the results announced there and put in Form 34 are provisional until cumulated with other polling station results to give a final result, whether for the MP, the governor or the president.“Second, the law places polling stations results on provisional “probation” to allow verification before a final valid result can be announced. That process involves cross-checking crucial facts: Have more people voted than are registered? Did ineligible voters vote?“Seen thus, the question of whether the failed electronic transmission of provisional results affects the validity of the final result is a red herring. The point is that transmission failures left IEBC without the means to cross-check and verify tallies in Form 36. But that failure is of IEBC’s own making since they made no effort to gather Form 34s. Without Form 34s, how did IEBC actually verify the final results that it announced to the public?”Manual or electronic“Unfortunately, the way the Court settles this issue allows the IEBC to affirm and deny what it pleases when it pleases. Consider. IEBC says — and the Court agrees — that Kenya’s voting system is basically manual. Electronics are mere facilitators. Once you grant that, the conclusion follows as a matter of logic: The failed electronic transmission could not have affected the validity of the presidential result.“This piece of sophistry should have invited a sharp rebuke: If electronics are surplus to requirement, what safeguards had IEBC put in place to tally and verify final results against Form 34 using the manual system? IEBC never answers that question mainly because it has been allowed to speak from both sides of the mouth: It can impugn technology as failure-prone and also evade the duty to create a fail-safe manual system to do that which the technology should have done.“The lack of clarity in the Court’s judgment about IEBC’s duty to ensure that final results could be verified against provisional results means that the country had to accept whatever numbers the IEBC gave. As subsequent reviews have shown, especially reviews done by Dr Seema K. Shah, the IEBC cannot be trusted with registers, technology or numbers. Dr Shah observed and reported on the Court-ordered tally of the 33,400 constituencies. Her report is a collection of IEBC’s riotous assembly of mis-tallies and contradictions.“
(These next 344 words are omitted from “Poliprudence”)
“Many Form 34s had more votes cast than registered voters. In Turbo constituency, polling station 69, stream 2, some 784 votes were cast but only 755 were registered. In polling station 71, stream 2, there were 741 votes cast but only 716 were registered. In Kacheliba, polling station 112, there were 215 votes cast but only 214 registered voters. In these polling stations, the results should have been cancelled.“In some Form 34s, not all presidential candidates were listed and, therefore, one cannot tell whether they got no votes or that their votes disappeared. In Baringo South, polling station 91, stream 1, only Uhuru Kenyatta, Raila Odinga and Paul Muite appeared on Form 34. In many Form 34s, the numbers do not add up. In Kacheliba constituency, polling station 102, though the votes cast are recorded as 0, there are 170 rejected votes and 170 valid votes. In Baringo South, polling station 117, stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, is 134. In Cherangany, polling station 2, stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, is 340. In Turkana North, polling station 12, the number of votes cast, 340, does not equal the number of valid votes, 340, plus the number of rejected votes (5).“Many Form 34s are missing altogether. There is no Form 34 for polling station 84 or for polling station 99 in Turkana North. Polling station 99 does not appear in the list of polling stations published on the IEBC website on February 24, 2013, but it does appear in the paper gazette. Form 34s for polling stations 92 and 113 in Turkana Central are missing. Looking closely at these numbers, it is not surprising that some of the same constituencies whose the registers had unexplained additions — in Turkana, West Pokot and Trans-Nzoia — have cropped up yet again. Are these coincidences?“
To be fair to the Court, one must ask what by way of report-back, its own scrutineers gave the judges. If they did get this information, why is it not reflected in their judgment? Or is it another case of it would have made no difference? Even if these numbers would have made no difference to the result, do they not in fact disclose that illegalities occurred?”
In “Poliprudence,” Professor Lumumba makes his own case, explaining why final results, in Form 36, need to be validated against provisional results, in form 36. He writes:
“The petitioners argued that provisional results are needed to validate final results. From this it followed that without them, final results are invalid. The Court judgment disagreed. It implicitly read Regulation 82, and Section 39 of the Elections Act, as imposing no requirement that final results be verified against provisional results. The Court came to this conclusion in a roundabout way. It asks and then answers a question that was only tangentially before it: Are final results invalid just because provisional results were not electronically transmitted? “By framing the issue thus, the Court erected a straw man that it then demolished with aplomb. The straw man allowed the Court to duck the difficult question of how “to verify and validate final results without provisional results” and to answer instead the easier question “whether the means of transmitting provisional results affect the validity of final result.”“Does this matter? The poignant truth is that it does. After the 2007 crisis, The Independent Review Commission (IREC) Report (Kriegler Report) recommended electronic transmission of results. In the rules that were subsequently drafted, results from polling stations, transmitted electronically, would be provisional. And there are two senses in which polling station results are provisional:“First, in Kenya there is no electoral unit that corresponds to a polling station. Technically then, a result announced by the presiding officer at the polling station is not really a result. Legally, at least in petition law, a result refers to an identifiable winner or loser. To the extent that not a single polling station gives such an outcome, all the results announced there and put in Form 34 are provisional until cumulated with other polling station results to give a final result, whether for the County Representative, MP, the Governor or the President.“Second, the law places polling stations results on provisional “probation” to allow verification before a final valid result can be announced. That process involves cross-checking crucial facts: Have more people voted than are registered? Did ineligible voters vote? “Seen thus, the question of whether the failed electronic transmission of provisional results affects the validity of the final result is a red herring. The point is that transmission failures left IEBC without the means to cross-check and verify tallies in Form 36. But that failure was of IEBC’s own making since they made no effort to gather Form 34s. Without Form 34s, how did IEBC actually verify the final results that it announced to the public?Manual or Electronic?“Unfortunately, the way the Court settled this issue allowed the IEBC to affirm and deny what it pleases when it pleases. Consider. IEBC said, and the Court agreed, that Kenya’s voting system was basically manual. Electronics are mere facilitators. Once you grant that, the conclusion follows as a matter of logic: The failed electronic transmission could not have affected the validity of the presidential result. “This piece of sophistry should have invited a sharp rebuke: If electronics are surplus to requirement, what safeguards had IEBC put in place to tally and verify final results against Form 34 using the manual system? IEBC never answered that question mainly because it had been allowed to speak from both sides of the mouth: It can impugn technology as failure-prone and also evade the duty to create a fail-safe manual system to do that which the technology should have done.“The lack of clarity in the Court’s judgment about IEBC’s duty to ensure that final results could be verified against provisional results means that the country had to accept whatever numbers the IEBC gave. As subsequent reviews have shown, especially reviews done by Dr Seema K. Shah, the IEBC cannot be trusted with registers, technology or numbers. Dr Shah observed and reported on the Court-ordered tally of the 33,400 constituencies. Her report is a collection of IEBC’s riotous assembly of mis-tallies and contradictions."
At this point Professor Lumumba deletes the next 344 words in “Five Reasons” and then he returns to the copying:
“To be fair to the Court, one must ask what by way of report-back, its own scrutinizers gave the judges. If they did get this information, why was it not reflected in their judgment? Or is it another case of it would have made no difference? Even if these numbers would have made no difference to the result, do they not in fact disclose that illegalities occurred?”
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