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Kenya Supreme Court “All Vote Cast,” means “Valid Vote Cast!” Security Argument Missed!

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Florida butterfly ballot that caused confusion. Florida butterfly ballot that caused confusion.

A petition filed by Moses Kiarie Kuria, Denis Njue Itumbi & Florence Jematiah Sergon verses Ahmed Issack Hassan & The Independent Electoral Commission (IEBC) on the interpretation of Constitution article Article 138(4), “A candidate shall be declared elected as president if the candidate receives – (a) more than half of all votes cast in the election. Specifically the meaning of the words “All Votes Cast,” The Supreme Court of Kenya ruled that “Votes Cast,” means “Valid Votes.” Did the Supreme Court of Kenya put more emphasis on definition of “Vote Cast,” and fail to see the Security System created by constitutional law 138 (4), “More than Half of All Votes Cast?” Did the Supreme Court strengthen or weaken the Voters Right as based on Constitution Article 1 and Article 38 of Constitution? Below the ruling and discussions that the Supreme Court may not have looked at.

Ruling [285] Taking into account the progressive character of the Constitution, and in particular its declared “national values and principles of governance” [Article 10], we hereby render the interpretation that the provision of Article 138(4), “A candidate shall be declared elected as president if the candidate receives – (a) more than half of all votes cast in the election; and (b) at least twenty-five per cent of the votes cast in each of more than half of the counties” – refers only to valid votes cast, and does not include ballot papers, or votes, cast but are later rejected for non-compliance with the terms of the governing law and Regulations. We are, in this regard, guided by a purposive approach, founded on the overall design and intent of the Constitution. We respectfully agree, on this point, with the position taken by the Constitutional Court of Seychelles in Popular Democratic Movement v. Electoral Commission (see para. 266, supra).

Paragraph [266] Learned counsel for the Petitioners in Petition No. 3 of 2013 introduced the comparative judicial practice in electoral matters, in support of their case. They invoked the Seychelles case, Popular Democratic Movement v. Electoral Commission, Const. Case No. 16 of 2011 which had come up before the Constitutional Court; and Burhan, J held that: “rejected ballot papers are not to be counted as ‘votes’; and therefore the term ‘votes cast’ cannot and will not include ‘rejected’ ballot papers.”  

Argument Not Presented

“More than Half of All Votes Cast,” as A Security System Argument

A constitution established in bringing people together to form a nation most of all must protect citizens from harming each other. Post Election Violence 2008 was triggered by Kenya constitution failure as a security system. The end result was 1,133 killed. The new constitution was able to offer that protection and did not create any vacuum 2013. However, in making the ruling based on the constitution law created by Article 138 the justices may not have looked at the security side. Could they have weakened the constitution strength against resisting a vacuum like 2008.

To illustrate this let’s adjust the results as follows: Uhuru 6,173,433 (49.63%); Raila 6,100,546 (49.04%); Dida 32,848 (0.26%); Karua 23,881 (0.19%); and Rejected 108,975 (0.88%): Total votes cast 12,439,683 (100%). 

When valid votes are applied as total votes and the rejected removed: Uhuru (6,173,433)50.07%; Raila 6,100,546 (49.47%); Mohammed Dida 32,848 (0.27%); Martha Karua 23,881 (0.19%): Total Votes cast 12,330,708 (100%). 

Based on this example Uhuru meets constitution requirement 138 (4) requires and as per the ruling. 

Now let’s apply the Florida Gore vs Bush Election 2000 where the rejected ballots were the main dispute. Let’s say analysis show that from the 108,975 about 80,000 (0.70%) of the rejected votes looked more closely could gone to Raila and just like the Florida the main reason is based on the Election body making an innocent error. This 80,000 added would decline Uhuru 50.07% to less than 50%.  

At this point you would have 6 million voters divided on both sides. On one side Uhuru supporters saying “Only Valid Votes,” and on the other side Raila supporters saying, “All Votes Count.” When constitution 138 is applied as "All cast votes," meaning all votes then it gives the way to go to the run-off and relaxes the tension.   

Constitution Article 138 (4) applied as a security system:

  1. Mutes the debate of the rejected votes in the first round. 
  2. Allows for less speculation for it is the final number of voter turnout that is more important.
  3. Gives the burden to the person who wants to lead to get to 50% of “All persons show up to vote.” 
  4. It ensures the person elected has a clear majority which in itself is security system. 
  5. It allows the votes to be tabulated to the final end and search for accuracy. 

In the run-off the constitution says “most votes,” shall win. The constitution does not anticipate a problem for when two people are on ballot. The chances of spoilt ballots further declines.

However, to ensure no vacuum exists and to create a tie-breaker a constitutional law will need to be added. 

Example of Tie-breaker. 

If a clear winner cannot be established through votes cast the winner shall be established as follows:

  1. A vote of persons who have been elected in the 1,450 wards.  
  2. A vote of person elected in the 290 constituencies.
  3. A vote of persons elected as the 47 women represenatatives. 
  4. The total eligible votes shall be 1,787 votes and the person who gets 894 votes shall be declared winner.  

The constitution role as the document is also to offer security to those who constitute it. The constitution by putting conditions that ensure the constitution is strong would protect those who constitute it.    

Voter Right Arguement

Constitution Article 38 (3) Every adult citizen has the right, without unreasonable restrictions— (a) to be registered as a voter; (b) to vote by secret ballot in any election or referendum; and (c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Constitution Article 38 (3) grants the right to vote states “without unreasonable restrictions.” If a voter decides to vote for someone not in the ballot by writing their name should the voter be restricted? Should a vote count as a cast vote even if the person expresses their desire for someone whose name is not on the ballot? Can a voter come to a polling station and write “None of the Candidates,” then cast their ballot? Can the words, “Vote Cast,” looked from expressing of right mean a voter coming to a polling station and exercising this right. If the definition is looked based on Voter Right to vote, “All the Votes Cast” in 138 (4). The word “All,” in the clause would represent the voters exercising this right. If however the opinion is based on meeting rules then the “Vote Cast,” can mean “Valid Vote.”  

Power Belongs to People Arguement

Constitution Article 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives. 

The constitution is created with all power emerging from the people who can exercise it through representation. Further constitutions constituted by and for the people mean so they can exercise their power. Cases where people have exercised their constitutional power.   

  1. In 2010 incumbent Alaska Senator Lisa Murkowski lost the Republican primary. Following her defeat she ran in the general election as a write in candidate and won the race. 
  2. In 1960, John F. Kennedy won the Democratic Pennsylvania presidential primary with 183,073 write-ins. He also won the Democratic Massachusetts presidential primary with 91,607 write-ins.
  3. In 1954 Democrat Strom Thurmond was elected to the United States Senate in South Carolina as a write-in candidate, after state Democratic leaders blocked him from receiving the party's nomination.

In these cases would the right have been limited by the rule established? If the rule states writing on the ballot anything makes this a spoilt vote and 60% of registered voters express their power of representation by writing the name as done in U.S. do rules set up supersede the collective will of the voters exercising they right to democracy as choosing the candidate of their choice. 

If this can be applied in a constitutional manner infridgement of someones elses right then can the “Valid Vote,” be the citizen right as expressed. And in accepting this does then the word “All,” mean a citizen who exercised their right? 

Voter Education Arguement 

Constitution 88. (1) There is established the Independent Electoral and Boundaries Commission. (4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for— (g) voter education.

Spoilt ballots can be attributed to where voters do not have ample education. Could article 138 (4) use of “All Cast Votes,” ensuring that the constitution requirement above is met?

Whereas we want to see our favorite candidates win should the process of winning be one where all persons eligible to vote have a chance to vote and regardless of whatever then do their vote counted in the 50% mark. Was this the many goal of IEBC that all votes count in getting to 50%. Should IEBC encourage people to vote and even vote other. If the 2 million who did not come out to vote had voted "other," would this have advanced their right of representation?  


If the justices had had more time to hear debate on this issue they would most likely have put some merit on these other arguments and hopefully the IEBC will reconsider rediscussing this issue so we do not lock a door that can save us during a time of need.    

Further Research

Popular Democratic Movement v. Electoral Commission, Constitutional Case No. 16 of 2011, 

Whereas one judge held the opinion of the Votes cast as Valid votes. The 3 judges who ruled had two defining the Votes Cast as all votes valid & Invalid.  

Judge Burhan, J.: Rejected ballot papers are not to be counted as ‘votes’, therefore the term ‘votes cast’ cannot and will not include ‘rejected’ ballot papers”.

Judge Gaswaga, J: Following the above circumstances and discourse, it is my considered view that the words ‘votes cast’ do not, and or cannot lend themselves to the meaning assigned and ascribed to and advanced by the learned counsel for the petitioner and the Hon Attorney General; that they refer to valid votes cast at an election. Had that been the case then the text of the relevant provision would have specifically stated so. In the same vein, with due respect to the learned counsel for the Petitioner and the Hon Attorney General, I decline the invitation, and I hope I will be acquitted of discourtesy, to hold that the phrase ‘…has polled in respect of the candidates in aggregate 10% or more of the votes cast at the election…’ in paragraph 2 of Schedule 4 of the Constitution should be construed to mean or to refer to 10% or more of the total valid / non rejected votes cast at the election, as the phrase plainly refers to the total votes (or ballot papers) cast at an election in the box, whether valid or invalid.

Judge Egonda-Ntende CJ: Words must be given their ordinary meaning within the context in which they are expressed. Once a vote is cast into a box regardless of whether it will turn out to be valid or not that vote has been cast and belongs to the context of votes cast.


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