JM’s “killer punch” ahead of SC oral addresses

120. In Halsbury’s Laws of England 4th Edition, V 15 (4) at paragraph 670:

"No election is to be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate elections rules if it appears to the tribunal having cognizance of the question that the election was conducted substantially in accordance with the law as to the elections and that the act or omission did not affect the result…”


The function of the court in exercising this jurisdiction is not assisted by consideration of the standard of proof but, having regard to the consequences of declaring an election void, there must be a preponderance of evidence supporting any conclusion that the rule was affected.”


121. This position is in accordance persuasive authority. In the Orpitz case, (supra), it was held on page 42 (paragraph 66) as follows:


"By contrast, if a vote cast by an entitled voter were to be rejected in a contested election application because of an irregularity, the voter would be irreparably disenfranchised. This is especially undesirable when the irregularity is outside of the voter's control, and is caused solely by the error of an election official."


122. It would be misdirecting punishment indeed for entitled voters who stayed in long queues to cast their votes, and whose vote had been counted, entered onto a declaration form and publicly declared to be deprived of the right to have those votes counted as a result of an act of omission by an electoral officer (not willfully done), over whose conduct the voters have no control.

123. We therefore invite Your Lordships to hold that on the facts of this case, failure by Presiding Officers to sign declaration forms did not affect the results of the elections at the respective polling stations.


...We finally and respectfully commend to Your Lordships three judicial decisions -one of the erstwhile Court of Appeal under the 1969 Constitution of Ghana, another, fairly recently, of the Canadian Supreme Court and the last, very recently, of the Supreme Court of Kenya.


In Re: Election of First President –Appiah v. Attorney-General [1970], reported at pp. 1423 – 1436 of A Sourcebook of Constitutional Law of Ghana, a case in which the election of the late Edward Akufo-Addo as the President-elect of the second Republic of Ghana was challenged by a lawyer, Joe Appiah, the Court of Appeal dismissed the petition, Bannerman, Ag CJ in his judgment relying on the following passage in the English case of Medhurst v. Lough & Casquet (1901) 17 TLR 210, where Kennedy, J, at p. 230 said:


‘An election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinate in the conduct of the election where the court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is, the success of the one candidate over the other was not and could not have been affected by those transgressions.’


98. In the Canadian case of Opitz v. Wrzesnewskyj 2012 SCC 55-2012-10-256, the Canadian Supreme Court made the following significant observations: “The practical realities of election administration are such that imperfections in the conduct of elections are inevitable…. A federal election is only possible with the work of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical on-the-job experience... The current system of electoral administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system. This overarching concern informs our interpretation of the phrase “irregularities …that affected the result.” (Rothstein and Moldaver JJ).

99. Finally, the Kenyan Supreme Court Case of Raila Odinga v. Uhuru Kenyatta [2013] at paragraphs 303, 304, 306 and 307 of its Judgment: ‘[303]… by no means can the conduct of this election be said to have been perfect…


[304] Did the Petitioner clearly and decisively show that the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election.


[306] … In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such.


[307] We will, therefore, disallow the Petition, and uphold the Presidential election results as declared by IEBC on 9th March, 2013.’ (Willy Mutunga C.J).


100. Our case is a fortiori the above cases as there is, here, no evidence of transgressions of the law by any voter, but simply some administrative errors in entries in the filling of forms. No credible evidence of violations of substantive rules regarding the conduct of voting has been provided to Your Lordships. We respectfully ask this Honourable Court to dismiss the Petition and uphold the declaration made by the Chairman of the Electoral Commission on 9th December, 2012.