Another View: Why I Disagree with the Supreme Court of Kenya

By Isaac Rutenberg**

I have nothing but the utmost respect for Dr. Willy Mutunga. He is brilliant and progressive, and I couldn’t pick anyone better to lead the judiciary. Nevertheless, I fundamentally and vehemently disagree with the Supreme Court’s recent holding that spoilt ballots are not to be counted in the presidential ballot.

Under Kenya’s Constitution 2010, a presidential candidate wins only if s/he gets at least 50% + 1 vote of the “total votes cast.” In the 2013 presidential election, the Supreme Court was asked to rule on several issues including whether the spoilt votes should be considered with respect to the 50% + 1 requirement. The Court held that such votes should not be counted, and to me, this represents a severe injustice.

Lawyers like to extrapolate a situation to its “logical conclusion” using hypothetical scenarios. In this case, consider an election with 100 voters. Assume that 99 of the voters cast spoilt ballots, and that one voter casts a valid vote for candidate X. Applying the Supreme Court’s logic such an election would be decided by the single valid vote, and candidate X would be declared the winner.Even though she received only a single vote in her favor, candidate X would have passed the 50% + 1 threshold (indeed, candidate X would be declared the winner with 100% of the votes in her favor!).

What are the implications of this hypothetical scenario (the logical conclusion of the Supreme Court’s decision), and are they relevant to the 2013 elections?

In the hypothetical, the voter turnout was 100% – i.e., every votertried to indicate his/her preferred leader. But, the minority rather than the majority determined the election outcome. In other words, 99% of the electorate wasdisenfranchised, and the country would be forced to accept a leader chosen by only 1% of the population.Surely this cannot be considered a desirable form of Democracy. The only fair course of action in this hypothetical is to re-vote until the number of spoilt ballots does not influence the outcome.

One might argue that the voters casting spoilt votes are to blame, and that they should have been more careful to ensure they are casting valid votes. This argument places the blame in the wrong place. It is the government’s responsibility to hold elections that are accessible to the entire population regardless of their level of education, primary language, and ability to read/write. Citizens with opinions (as evidenced by their turning out to vote) should not be punished merely because the government failed to hold an accessible election.

There is one instance where I would have agreed with the Supreme Court, and that is where it was proven that the spoilt ballots were fraudulent (e.g., attempts by one or both parties to increase the voter turnout in order to force a run-off).

Provided that the spoilt ballots were not fraudulent, they represent the undeterminable will of the people. Such ballots cannot be ignored. If the spoilt ballots were numerous enough to influence the outcome, the only fair course of action would be a re-vote.

In the case of the 2013 election, the margin of victory (i.e., for satisfying the 50% + 1 requirement) if the spoilt ballots are counted was less than 10,000 votes. With over 10 million votes cast, this margin is less than 0.1%, which must surely have been within the margin of error for the voting process. I am therefore skeptical that the outcome actually reflects the will of the people. In any event, for the above reasons, I am more upset about the precedent set by the Supreme Court in ruling that the spoilt ballots are not to be counted.

**Follow him on twitter: @iruten

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