I see Kenya’s 2013 and 2017 presidential election
rulings as more than legal footnotes—they are wounds to our collective
awareness, moments where the Supreme Court chose a sterile tally over the messy
richness of democratic participation.
In 2013, the court upheld Uhuru Kenyatta’s victory
by 4,099 votes above the 50 per cent+1 threshold, redefining and substituting
Article 138(4)(a)—"A candidate shall be declared elected as
president if the candidate receives (a) more than half of all the votes cast in
the election."—with "votes validly cast," eliminating
spoilt votes from the determination of the winning candidate, in this case excluding
100,000 spoilt votes.
In 2017’s Raila Odinga & another v IEBC &
others, it reaffirmed this stance, sidelining 81,000 spoilt votes despite
nullifying the election on procedural grounds.
To me, these discounted votes are like seeds planted
on a farm but struck from the harvest because they did not fall in neat rows.
They expended resources, produced an outcome and hold lessons for future
planting—yet the court deemed them unworthy of the count, diminishing Kenya’s
democratic yield.
In both instances, the Supreme Court failed to
appreciate that citizens could deliberately spoil their votes as a protest
against the candidates on the ballot.
Picture a farmer sowing seeds across a field. Some
land in orderly rows, others scatter away. Come harvest, the farmer counts only
the rowed yield, ignoring the rest—despite the labour, soil and water they
consumed. Those scattered seeds, though not perfectly placed, still sprout,
still speak to the land’s potential. So it is with voting.
Every ballot cast in 2013—12,338,667 in total, with
Kenyatta at 6,173,433—reflected a Kenyan’s effort to exercise sovereign
democracy. The constitution says "all the votes cast," yet the
court’s "validly cast" filter erased 100,000 voices, preserving
Kenyatta’s slim 50.07 per cent.
In 2017, with 15,257,390 votes cast, 81,000 spoilt
ballots met the same fate. I argue that these are not mere errors to discard—they are
seeds of intent or more potently a protest vote.
The court’s logic, that only votes clearly favouring a
candidate count, has electoral precedent, but it clashes with the constitution’s
plain text and my view of democracy as a living ecosystem.
The 2013 petition’s procedural saga deepens this
critique. Raila Odinga’s Cord faced a brutal timeline—seven days to file, 14 to
rule—under Article 140. They claimed the IEBC withheld Forms 34 and 36 until a
separate court order intervened, leaving them two frantic days to unearth
polling stations with over 100 per cent turnout.
Their affidavit, urging those results be quashed,
was struck as late "new evidence". I see this as a refusal to tend
the field—to examine seeds that might have proven the harvest rigged. The
court’s rigidity, excusable as procedure, ignored the IEBC’s alleged
obstruction, sidelining a chance to nurture trust over expediency.
In 2017, the court showed spine, annulling
Kenyatta’s win for IEBC failures—missing forms, transmission glitches—but clung
to the "validly cast" doctrine. Odinga’s team, better prepared with
data, exposed process flaws, yet the seed analogy still applied: 81,000 spoilt
votes, like scattered sprouts, were discounted. The 4-2 ruling was a victory
for accountability, but by not revisiting 2013’s interpretation, it locked in a
narrow lens.
This paradox gnaws at me: a court bold enough to
void an election will not rethink a rule that prunes our harvest? Those 100,000
seeds in 2013, 81,000 in 2017—they are not chaff. They are lessons for better
rows, better reaping.
The 2013 and 2017 rulings dulled that, favouring
neatness over the full yield of participation. The "validly cast"
doctrine risks becoming a permanent blight, shrinking our field of vision. We
deserved a harvest that counts every seed—cautiously, yes, but
wholly—reflecting all we have sown.
Social consciousness theorist and author of 'The Gigantomachy of Samaismela' and 'The Trouble with Kenya:
McKenzian Blueprint'
