Our court’s ruling guides judges in Kenya polls case


As it happened in the People’s Democratic Movement’s case, the Supreme Court of the 41 million population regional economic powerhouse decided that only valid votes should count in an election and spoilt votes should be disregarded.

Asked by Nation to comment on why she upheld Constitutional Court judge Mohan Burhan’s dissenting judgment stating thus, when people are known to go to the polls to spoil votes and make a political statement, Court of Appeal judge Mathilda Twomey said that while she agreed with that, there was no way a judge could tell which votes had been purposely spoilt and those which became invalid unintentionally.

In view of the considerable constitutional importance of the case and the various legal issues involved, Seychelles Nation at the time published in their entirety the judgments made by the justices of Appeal Anthony Fernando and Matilda Twomey with which the president of the Court of Appeal Francis MacGregor agreed.

The Kenyan judges in fact quoted the actual words of Judge Twomey highlighting the criteria the Seychelles judges used when assessing the value of rejected votes.
“To count spoilt votes and ascribe to them the quality of valid votes is improper as it entails converting the latent vote of an elector into a patent vote and such an approach would render meaningless the distinction between a spoilt vote and a valid vote.”

Yesterday Judge Twomey told Nation:
“The problem we have is this; some people actually make a mistake when they are voting and the vote is rejected as a spoilt vote. Some people deliberately spoil their votes. But if we as judges do not know which vote was spoilt on purpose and which was spoilt through a genuine mistake, how can I interprete what the voter was doing?

“As a judge I cannot decide ‘this is what you meant and you were not making a mistake’.”
The Kenyan judges invoked the PDM case reading and recording:

“Learned counsel for the petitioner (PDM) introduced the comparative judicial practice which had come before the constitutional court and judge Mohan Burhan held that rejected ballot papers are not to be counted as votes and therefore the terms ‘votes cast’ cannot and will not include rejected votes.

“Burhan sitting on the constitutional court wrote a dissenting judgment disagreeing with the chief justice and another judge.”

“The Court of Appeal went by judge Burhan’s ruling because they considered it to be the correct one.”
One of the issues was whether rejected votes should be included in the final tally of ballots which our Court of Appeal resolved in the PDM case.

The Kenyan judges while deciding what the words “votes cast” mean, wanted to know if that meant all marked votes put in the ballot box or only the correctly marked votes.


Send your comment :

Name *

Email *

Comment *