Dissenting Opinions of Njoki and Ojwang

[bryan275]

All these people going on about "the court's decision is about process, not outcome" all over have lost leave of their senses. OF COURSE it's about the outcome! The right process leads to a right outcome and the wrong one leads to a wrong outcome. The court invalidates the OUTCOME precisely because it cannot be satisfied that this outcome is correct! This is what kina Ojwang are slyly labling "uncertainties". A clever ploy. Yes Ojwang, if you are reasonably uncertain about whether the right winnet has been declared, you cant in good conscience uphold that result.

The method the court uses to test the outcome is the process, the trackable trail, but the bottom line is that a FAIR court would maintain the result ONLY if it had no good readons to doubt that at the very least, the RIGHT candidate was declared winner even if it cannot be sure the exact gap by which he won. In this case, it appears the anomalies were so widespread that the court couldn't do that. Perhaps kina Njoki have a special method for vouching for their confidence that the right person was announced winner that they will share in a more detailed judgment?

Hear hear.  Why is this so hard to understand?  I think my compatriots are willfully blind

[vooke]

The right process leads to a right outcome and the wrong one leads to a wrong outcome.

That's exactly what I'm saying; the question at SCOK was whether the process was materially WRONG enough to lead to a WRONG outcome. 4:2 it was vs it was not.

If the process is repeated with all the WRONGS big/small righted and it yielded the SAME results, then these wrongs were immaterial.

SCOK are in other words hypothesizing that the observed wrongs were either material or immaterial. Another election would prove or disprove their hypothesis


Moonki,
Here are the dissenting opinions. Sorry I posted the same links

Ojwang
https://drive.google.com/open?id=0B2rMMQJiqMB8empCZTNZTWRyTVk

Njoki
https://drive.google.com/open?id=0B2rMMQJiqMB8OEVMSFEyZkhNb0E

[vooke]

Termie I deleted my post as I was editing it and I'm not typing it again.

The constitution defines free and fair. The ruling simply said the elections were not free and fair because of bla de bla.

A repeat that yields exact same results reduces the free and fair issues to hygiene factors that shouldn't have invalidated the results in the first place.

Ojwang and Njoki stated in their dissent that the claims of not free and fair were spurious.

.
If uhuru had the numbers he needn't have rigged. I suspect he doesn't have the numbers and his waterloo is coming.

That's my thinking too my broda, though no evidence of rigging has been adduced so far. NASWA basically proved the results are unreliable but I doubt they attempted to show any results which were reliable like say forms 34As of their own

[MOON Ki]

If the process is repeated with all the WRONGS big/small righted and it yielded the SAME results, then these wrongs were immaterial.
....
SCOK are in other words hypothesizing ... Another election would prove or disprove their hypothesis

Not quite.   That would be case only if all other aspects of the elections stay unchanged.   

[bryan275]

Termie I deleted my post as I was editing it and I'm not typing it again.

The constitution defines free and fair. The ruling simply said the elections were not free and fair because of bla de bla.

A repeat that yields exact same results reduces the free and fair issues to hygiene factors that shouldn't have invalidated the results in the first place.

Ojwang and Njoki stated in their dissent that the claims of not free and fair were spurious.

.
If uhuru had the numbers he needn't have rigged. I suspect he doesn't have the numbers and his waterloo is coming.

That's my thinking too my broda, though no evidence of rigging has been adduced so far. NASWA basically proved the results are unreliable but I doubt they attempted to show any results which were reliable like say forms 34As of their own

As it is we know turnout in central(real and imagined) was almost maxed out.  The 700k gap between presidential and other elections was the stuffing.  Add onto it the server generated votes during transmission and you begin to see where Jubilee votes max out.  Please note that there's a fair chance that part of the rig was dumping Odinga's votes into the spoilt vote bucket.  So add those onto Odinga's plus any that were reallocated to Uhuru too.

Question is, where else are they going to get more votes from?  Ati 70%+1.  Uhuru and Ruto need to start packing their sh*t and vacating the people's State House pronto.  My greatest hope is that these thieving bastards don't try "terrorism" and other dark acts like they did during their ICC trials between now and election time.

[vooke]

If the process is repeated with all the WRONGS big/small righted and it yielded the SAME results, then these wrongs were immaterial.
....
SCOK are in other words hypothesizing ... Another election would prove or disprove their hypothesis

Not quite.   That would be case only if all other aspects of the elections stay unchanged.   

That's why I said I get even if we got the same results, there would be attempts to explain them away first rather than admit Maraga was wrong.

Top of my mind is voter apathy and lower turnout affecting NASWA strongholds due to travel. Many travelled from NBO to vote so much that they sparked fears. Dvd had to appeal to them to remain.

The other one is money. Whatever is needful between now and the rerun costs money and Babu has shallow pockets

Finally there is campaign strategy.

All in all, absence of clear deviation from pre-8.8 conditions, coupled with nigh exact similar results I will take that as evidence that Maraga's was just a populist/political and more importantly WRONG decision.

His decision needs some icing by means of different results, else it won't be celebrated as it is now.

[vooke]

Termie I deleted my post as I was editing it and I'm not typing it again.

The constitution defines free and fair. The ruling simply said the elections were not free and fair because of bla de bla.

A repeat that yields exact same results reduces the free and fair issues to hygiene factors that shouldn't have invalidated the results in the first place.

Ojwang and Njoki stated in their dissent that the claims of not free and fair were spurious.

.
If uhuru had the numbers he needn't have rigged. I suspect he doesn't have the numbers and his waterloo is coming.

That's my thinking too my broda, though no evidence of rigging has been adduced so far. NASWA basically proved the results are unreliable but I doubt they attempted to show any results which were reliable like say forms 34As of their own

As it is we know turnout in central(real and imagined) was almost maxed out.  The 700k gap between presidential and other elections was the stuffing.  Add onto it the server generated votes during transmission and you begin to see where Jubilee votes max out.  Please note that there's a fair chance that part of the rig was dumping Odinga's votes into the spoilt vote bucket.  So add those onto Odinga's plus any that were reallocated to Uhuru too.

Question is, where else are they going to get more votes from?  Ati 70%+1.  Uhuru and Ruto need to start packing their sh*t and vacating the people's State House pronto.  My greatest hope is that these thieving bastards don't try "terrorism" and other dark acts like they did during their ICC trials between now and election time.

Central turnout was not high or even higher than national average.

Check any constituency or county in Central and get back

[Kim Jong-Un's Pajama Pants]

All these people going on about "the court's decision is about process, not outcome" all over have lost leave of their senses. OF COURSE it's about the outcome! The right process leads to a right outcome and the wrong one leads to a wrong outcome. The court invalidates the OUTCOME precisely because it cannot be satisfied that this outcome is correct! This is what kina Ojwang are slyly labling "uncertainties". A clever ploy. Yes Ojwang, if you are reasonably uncertain about whether the right winnet has been declared, you cant in good conscience uphold that result.

The method the court uses to test the outcome is the process, the trackable trail, but the bottom line is that a FAIR court would maintain the result ONLY if it had no good readons to doubt that at the very least, the RIGHT candidate was declared winner even if it cannot be sure the exact gap by which he won. In this case, it appears the anomalies were so widespread that the court couldn't do that. Perhaps kina Njoki have a special method for vouching for their confidence that the right person was announced winner that they will share in a more detailed judgment?

In a technical sense you are right.  The outcome is the wrong outcome because the process is illegal.  If Floyd Mayweather is not disqualified for hitting below the belt, that is a wrong outcome; even if he likely wins without that infraction.  He may well go on to win the rematch.  But the previous disqualification remains valid.  The real problem is just not following the law.

The outcome as in who won or lost played a minor role in this ruling but not entirely zero.  There indeed were Forms 34(B I believe) that were defective that added up to 2.3 million votes.  Ngatia argued that they included areas that Raila won.  But if they were defective, the idea that you can use them to say Raila won such and such is of course flawed.  Given that 2.3 million is greater than the margin of victory and SCOK is not into political punditry, those would all be thrown out and yet they could change the outcome(in theory).

[Kim Jong-Un's Pajama Pants]

If uhuru had the numbers he needn't have rigged. I suspect he doesn't have the numbers and his waterloo is coming.

That's my thinking too my broda, though no evidence of rigging has been adduced so far. NASWA basically proved the results are unreliable but I doubt they attempted to show any results which were reliable like say forms 34As of their own

As it is we know turnout in central(real and imagined) was almost maxed out.  The 700k gap between presidential and other elections was the stuffing.  Add onto it the server generated votes during transmission and you begin to see where Jubilee votes max out.  Please note that there's a fair chance that part of the rig was dumping Odinga's votes into the spoilt vote bucket.  So add those onto Odinga's plus any that were reallocated to Uhuru too.

Question is, where else are they going to get more votes from?  Ati 70%+1.  Uhuru and Ruto need to start packing their sh*t and vacating the people's State House pronto.  My greatest hope is that these thieving bastards don't try "terrorism" and other dark acts like they did during their ICC trials between now and election time.

Central turnout was not high or even higher than national average.

Check any constituency or county in Central and get back

Turnout in central was the highest, generally toying with the limits of possibility.  Numbers you only see in countries with mandatory voting.  I am on a phone so I can't share the spreadsheet.

[Nefertiti]

If uhuru had the numbers he needn't have rigged. I suspect he doesn't have the numbers and his waterloo is coming.

That's my thinking too my broda, though no evidence of rigging has been adduced so far. NASWA basically proved the results are unreliable but I doubt they attempted to show any results which were reliable like say forms 34As of their own

As it is we know turnout in central(real and imagined) was almost maxed out.  The 700k gap between presidential and other elections was the stuffing.  Add onto it the server generated votes during transmission and you begin to see where Jubilee votes max out.  Please note that there's a fair chance that part of the rig was dumping Odinga's votes into the spoilt vote bucket.  So add those onto Odinga's plus any that were reallocated to Uhuru too.

Question is, where else are they going to get more votes from?  Ati 70%+1.  Uhuru and Ruto need to start packing their sh*t and vacating the people's State House pronto.  My greatest hope is that these thieving bastards don't try "terrorism" and other dark acts like they did during their ICC trials between now and election time.

Central turnout was not high or even higher than national average.

Check any constituency or county in Central and get back

Turnout in central was the highest, generally toying with the limits of possibility.  Numbers you only see in countries with mandatory voting.  I am on a phone so I can't share the spreadsheet.

Windy - what counties/constituencies are these that were stuffed? Please share I do the confirmation from the portal.

[Kim Jong-Un's Pajama Pants]

When I get to my computer I'll share.

[Nefertiti]

What disappoints me as a Raila supporter is the lack of circumspection among many of us.

1. The process was flawed so Uhuru must have rigged. Really? - there was no such finding. Those same justices you are praising absolved Uhuru of any wrongdoing. And don't start on that story of how Uhuru is so cleaver and left no evidence. Those are theories not facts.

2. Raila as good as has won. This is the most laughable attitude I have seen being thrown around everywhere by NASA fans. Get down to work and actually assume Uhuru won and work to override that win.

3. Njoki & Ojwang are incompetent/corrupt and should be fired. This is just plain arrogance. Next time Maraga et al go against Raila what will you have to say? In fact four of these justices ruled unanimously against Raila in 2013 and they were called korti bandia. I have seen Windy suggest there were dissenting opinions that were muzzled in 2013 - a wild theory he cannot back up.

All we got is a fresh rerun. They bravado is unnecessary. We are counting unhatched eggs. vooke makes alot of sense.

[bryan275]

What disappoints me as a Raila supporter is the lack of circumspection among many of us.

1. The process was flawed so Uhuru must have rigged. Really? - there was no such finding. Those same justices you are praising absolved Uhuru of any wrongdoing. And don't start on that story of how Uhuru is so cleaver and left no evidence. Those are theories not facts.

2. Raila as good as has won. This is the most laughable attitude I have seen being thrown around everywhere by NASA fans. Get down to work and actually assume Uhuru won and work to override that win.

3. Njoki & Ojwang are incompetent/corrupt and should be fired. This is just plain arrogance. Next time Maraga et al go against Raila what will you have to say? In fact four of these justices ruled unanimously against Raila in 2013 and they were called korti bandia. I have seen Windy suggest there were dissenting opinions that were muzzled in 2013 - a wild theory he cannot back up.

All we got is a fresh rerun. They bravado is unnecessary. We are counting unhatched eggs. vooke makes alot of sense.

I think you're ignoring Orengos submission that many firm 34As were forgeries.  An allegation supported by the scrutineering of the originals as well as the IT.  The IT in particular confirmed deletions of 34As.

Letting Uhuru off was the let down for me.  He should've been banned from all elections.  The process wasn't flawed, it was infiltrated and defeated by riggers.  Chebukati and Chiloba did not rig for themselves

[Nefertiti]

Letting Uhuru off was the let down for me.  He should've been banned from all elections.  The process wasn't flawed, it was infiltrated and defeated by riggers.  Chebukati and Chiloba did not rig for themselves

This is the opinion of bryan not the SCOK's. Why should Uhuru be banned from all elections? You're letting your disdain of the man blind you to the reality: he was absolved - while IEBC was actually ordered to conduct fresh elections. Note too that IEBC Chair Chebukati was not directly condemned and may well run the next round. Hate them but don't dismiss or underrate them.

[Kichwa]

The court ruled that there were irregularities and illegalities. Irregularities do not require intent and may have been due to incompetence, and unintentional omissions or commissions. However, the illegality part of the findings is very serious and if there is evidence that Ouru campaign participated in the illegalities, i.e, bribing IEBC officials, then Bryan is right.  The judges probably did not find such and that is why they cleared Ouru.  We all know as Kenyans that whatever Chiloba did to help jubilee, he was well compensated.

Letting Uhuru off was the let down for me.  He should've been banned from all elections.  The process wasn't flawed, it was infiltrated and defeated by riggers.  Chebukati and Chiloba did not rig for themselves

This is the opinion of bryan not the SCOK's. Why should Uhuru be banned from all elections? You're letting your disdain of the man blind you to the reality: he was absolved - while IEBC was actually ordered to conduct fresh elections. Note too that IEBC Chair Chebukati was not directly condemned and may well run the next round. Hate them but don't dismiss or underrate them.

[vooke]

Turnout in central was the highest, generally toying with the limits of possibility.  Numbers you only see in countries with mandatory voting.  I am on a phone so I can't share the spreadsheet.

The results in PDF
https://www.iebc.or.ke/uploads/resources/m3f8arLNjp.pdf

And in Excel
https://docs.google.com/file/d/0B2rMMQJiqMB8ZUlyd05MbmIwOGM/edit?usp=docslist_api&filetype=msexcel

Of course it was not low,but not substantially higher than national average

Wait, on second thought it was very high. Approaching 90%

[Nefertiti]

As a matter of fact I as Robina don't know this - neither that Chiloba deliberately botched the elections, nor that he was compensated, nor by whom. Those are assumptions you have made and I say this in all honesty. Here's an equally wild theory: perhaps Uhuru was cheated of a wider victory by this fraud?

The court ruled that there were irregularities and illegalities. Irregularities do not require intent and may have been due to incompetence, and unintentional omissions or commissions. However, the illegality part of the findings is very serious and if there is evidence that Ouru campaign participated in the illegalities, i.e, bribing IEBC officials, then Bryan is right.  The judges probably did not find such and that is why they cleared Ouru.  We all know as Kenyans that whatever Chiloba did to help jubilee, he was well compensated.

[vooke]

The court ruled that there were irregularities and illegalities. Irregularities do not require intent and may have been due to incompetence, and unintentional omissions or commissions. However, the illegality part of the findings is very serious and if there is evidence that Ouru campaign participated in the illegalities, i.e, bribing IEBC officials, then Bryan is right.  The judges probably did not find such and that is why they cleared Ouru.  We all know as Kenyans that whatever Chiloba did to help jubilee, he was well compensated.

KM,
My 2cents

Two things will define Maraga's legacy;
1. The actual judgement
2. Results of the rerun


The judgement will show us what irregularities and illegalities were there and we can all judge for ourselves whether they really affected the integrity and outcome. I'm also interested in the unconstitutionality bits of the election especially transmission because that's where they focused as per their summary.

The rerun is more interesting than even the judgement. It does not matter what legalese and arguments they used, what matters is whether their conclusions will be validated by the rerun.
If Elections(E) with Irregularities (R) and Illegalities (L) yields Uhuru victory (U) or E+R+L=U, then E-R-L =/=U. But if E-R-L=U, then R,L=0, or the 'illegalities and irregularities' never affected the results, they were immaterial as Ojwang and Ndung'u contended.


I know it sounds crazy reserving praise for someone being praised by every legal mind in and outside the country,but I maintain that only a rerun can PRACTICALLY demonstrate the merits of this judgement.

So wait for the full judgement,and then the rerun.

[Kadame7]

The court ruled that there were irregularities and illegalities. Irregularities do not require intent and may have been due to incompetence, and unintentional omissions or commissions. However, the illegality part of the findings is very serious and if there is evidence that Ouru campaign participated in the illegalities, i.e, bribing IEBC officials, then Bryan is right.  The judges probably did not find such and that is why they cleared Ouru.  We all know as Kenyans that whatever Chiloba did to help jubilee, he was well compensated.

KM,
My 2cents

Two things will define Maraga's legacy;
1. The actual judgement
2. Results of the rerun


The judgement will show us what irregularities and illegalities were there and we can all judge for ourselves whether they really affected the integrity and outcome. I'm also interested in the unconstitutionality bits of the election especially transmission because that's where they focused as per their summary.

The rerun is more interesting than even the judgement. It does not matter what legalese and arguments they used, what matters is whether their conclusions will be validated by the rerun.
If Elections(E) with Irregularities (R) and Illegalities (L) yields Uhuru victory (U) or E+R+L=U, then E-R-L =/=U. But if W-R-L=U, then R,U=0, or the 'illegalities and irregularities' never affected the results.


I know it sounds crazy reserving praise for someone being praised by every legal mind in and outside the country,but I maintain the thinly a rerun can PRACTICALLY demonstrate the merits of this judgement.

vooke, with respect, that makes ZERO sense. Stop confusing judgments with MOAS. The soundness of court decisions is determined on their adherence to sound principles. This you have created here is an arbitrary and strange test. I have read and heard countless comments from the most ordinary wananchi on both sides who understand perfectly way that Maranga isnt saying anything but that the election should be done well per law. He is NOT sayin Raila won. Or that Uhuru lost. Everyone seems to understand that perfectly well.

So clearly do they understand the ruling that they are happy to do the election again so their win can or loss can be free or fair and they can accept. Who are these confused chaps you are envisioning who dont get this? I have never in my life seen a worse test for a judgment. They are not Pundits saying Uhuru lost or Raila won and I have seen no one yet thats confused about that.

[vooke]

The court ruled that there were irregularities and illegalities. Irregularities do not require intent and may have been due to incompetence, and unintentional omissions or commissions. However, the illegality part of the findings is very serious and if there is evidence that Ouru campaign participated in the illegalities, i.e, bribing IEBC officials, then Bryan is right.  The judges probably did not find such and that is why they cleared Ouru.  We all know as Kenyans that whatever Chiloba did to help jubilee, he was well compensated.

KM,
My 2cents

Two things will define Maraga's legacy;
1. The actual judgement
2. Results of the rerun


The judgement will show us what irregularities and illegalities were there and we can all judge for ourselves whether they really affected the integrity and outcome. I'm also interested in the unconstitutionality bits of the election especially transmission because that's where they focused as per their summary.

The rerun is more interesting than even the judgement. It does not matter what legalese and arguments they used, what matters is whether their conclusions will be validated by the rerun.
If Elections(E) with Irregularities (R) and Illegalities (L) yields Uhuru victory (U) or E+R+L=U, then E-R-L =/=U. But if W-R-L=U, then R,U=0, or the 'illegalities and irregularities' never affected the results.


I know it sounds crazy reserving praise for someone being praised by every legal mind in and outside the country,but I maintain the thinly a rerun can PRACTICALLY demonstrate the merits of this judgement.

vooke, with respect, that makes ZERO sense. Stop confusing judgments with MOAS. The soundness of court decisions is determined on their adherence to sound principles. This you have created here is an arbitrary and strange test. I have read and heard countless comments from the most ordinary wananchi on both sides who understand perfectly way that Maranga isnt saying anything but that the election should be done well per law. He is NOT sayin Raila won. Or that Uhuru lost. Everyone seems to understand that perfectly well.

So clearly do they understand the ruling that they are happy to do the election again so their win can or loss can be free or fair and they can accept. Who are these confused chaps you are envisioning who dont get this? I have never in my life seen a worse test for a judgment. They are not Pundits saying Uhuru lost or Raila won and I have seen no one yet thats confused about that.

The judgement touches on the issues of law as well as the integrity of the process. Once the ruling is out, I'm certain it will be vigorously debated whether the elections were really held contrary to the constitution. That bit doesn't concern me at all, I'll leave that to legal minds, and I can assure you that even there,there will never be any consensus.

What concerns me is the integrity bit. In short,the results were hopelessly unreliable. Babu did not go to court because of a principle called integrity; he went there because he felt whatever lacked in the election disadvantaged him. The court just aksin IEBC to remedy that and repeat. So if they did and he still lost,the remedy never disadvantaged Babu in the first place. It's only the Court imagined they did.