EXECUTIVE  SUMMARY  OF  RESPONSE  TO  PETITION  

 

1. The contents of paragraph 2.3 of the Petition are incorrect to the extent that the

Petitioner attributes the enactment of the Constitution to the Government of the

Republic of Kenya, civil society and the private sector whereas the Constitution is in

truth adopted and enacted by the people of Kenya.

2. The 3rd Respondent having perused the Petition has noted that no Accusation is made

against him.  

 3. The Petition is replete with falsehood and is a robust effort to exaggerate facts and

circumstances which are intended to secure for the Petitioner an unjust advantage. The

Petition in essence seeks to substitute the will of Kenya people who elected the 3rd

Respondent in elections that were free, fair and credible by the standards established by

law.  

 4. The 1st Respondent’s conduct of the election must also be assessed against the following

novel circumstances;  

 (i) For the first time in Kenya’s history, 6 elections were held simultaneously on the

same day.

(ii) For the first time in Kenya’s history, portions of the electoral process were

conducted through electronic means including voter registration.

(iii) The general election was the first one under the new Constitution.

(iv) The record registration of over 14 million voters.

(v) Creation of 80 new constituencies and delimitation of new electoral units

undertaken in 2011 pursuant to the provisions of Article 89 of the Constitution of

Kenya.

(vi) The conduct of elections under a statutory framework for the creation of

coalitions and a new Political Parties Act.

(vii) The conduct of elections that will lead to the first devolved system of

Government in Kenya.

(viii) Significant delays in the enactment of electoral laws by Parliament which was

compounded by several late stage amendments to such laws with the attendant

consequence that the 1st Respondent’s schedule of executing the efficient conduct

of the elections was disrupted.

(ix) A legal challenge and political opposition to the procurement process

commenced by the 1st Respondent for BVI, BVR and electronic results

transmission system.

5. The Constitution does not impose any duty on the 1st Respondent to use BVI, BVR

and/or a system of transmitting election results electronically hence it is a fundamental

misconception of the law for the Petitioner to contend that either registration of voters,

identification of voters or transmission of the votes cast was required by law to be done

via an electronic system.

6. At a press conference convened on 31st July, 2012,the Petitioner and several senior

members of ODM called for a return to the manual system and declared that Kenyans

did not want the BVR system. It is therefore the height of hypocrisy for the Petitioner to

now claim that the only credible process of conducting elections must be founded on an

electronic system.  

 7. Following consultations between the President, the Petitioner and the 1st Respondent, a

decision was made to procure the BVR Kits from the Government of Canada in a

Government – Government deal. The Cabinet meeting at which the decision was made

was chaired by the President and the Petitioner.

8. It therefore follows that the Petitioner had a critical role in the identification and

eventual purchase of the BVR Kits. The Petitioner cannot therefore either found a cause

of action arising from his participation in the purchase of the BVR kits and/or benefit

from the ultimate partial failure of the electronic systems.  

 9. The notion that electronic voting systems are the only accurate, accountable, verifiable,

transparent and efficient method of voter registration, voting and results transmission

is not only fundamentally unsound in law but also factually incorrect. Such systems

have failed all over the world in the past in the following instances:

(i) The BVR system crashed and/or failed in 2012 in the Ghana Presidential

election.

(ii) Electronic voting systems failed during the 2000 Presidential election in the United States of America.

(iii) Electronic voting systems have failed, crashed and or mulfunctioned in

numerous elections in Europe and in Municipal elections in the United

States of America to the extent that legislation has been introduced in

some jurisdictions requirement for a manual back up system in every

election.

10. In excess of 800,000 people expressed their preference for the 3rd Respondent who are

more than the total number of voters in 3 densely populated counties namely Tharaka

Nithi, Kakamega and Bomet.

11. Every effort humanly possible was made to ensure that the voting method adopted by the 1st Respondent was simple, accurate, verifiable, secure, accountable and transparent.    

12. The results announced were indeed accurate and verifiable in accordance with the

standard established by law and were announced in a transparent and lawful manner as

contemplated by Article 86 of the Constitution and the Election (General) Regulations,

2012.

13. The allegations at page 14 paragraph 5.2 of the Petition are false. In particular the 3rd

Respondent states that the will of the people of Kenya expressed in a free fair and

credible electoral process can not in law be overturned or subverted on the basis of a

hypothesis. The petition correctly understood, is founded on a hypothesis incapable of

proof; it is an expression of bitterness arising from the Petitioner’s loss of the poll and

raises no legal issues capable of a judicial inquiry.

14. The allegations at page 16 paragraph 5.5 are false. The agents for all political parties

present at the national tallying centre were not ejected from the tallying centre but rather

provided with suitable alternative facilities within the tallying centre after the

Petitioner’s supporters started shouting and mis-conducting themselves in a room

which they and other agents had been allocated for verification of results.

15. It is thus manifestly clear that the Petitioner’s attempt to impeach the entire electoral process and invalidate the results is an afterthought informed by the shock of losing the election rather than on any impropriety or irregularities by the 1st and 2nd Respondents.    

16. The 3rd Respondent states that the burden of the Petitioner’s case is that the entire

electoral process commencing with voter registration, voting and tallying of results and

the declaration of results was invalid, null and void. The 3rd Respondent contends that

the court is being invited to stage a coup against the constitutional governance of Kenya

in that not only the Presidential election would be impugned but the Parliamentary,

Gubernatorial, Senatorial and County Assembly elections would also be vitiated.

17. The Orders sought by the Petitioner are also mischievous and designed to cause

disproportionate harm to constitutional governance in that they call for impeachment

without legal basis of the only body established in law to conduct elections so as to

trigger a crisis in the Executive and Legislative arms of Government that would enable

the Petitioner to negotiate and/or bully his way to power in contravention of the

Constitution.