Those who watched the Supreme Court deliver its reasons for judgment may recall one vivid moment.
It was when Chief Justice David Maraga, following the end of the lengthy reasons of Justice Njoki Ndung’u, said he needed to read one small part of the majority’s reasons, which he had omitted earlier.
It addressed whether the court had evidence to any criminal culpability to any Independent Electoral and Boundaries Commission (IEBC) official.
He stated that no evidence was placed before the court to prove the commission of an electoral offence.
It is important to note that electoral offences are, under our law, criminal offences.
However, just before this finding, Mr Maraga noted that the Court found that IEBC had committed illegalities and irregularities.
In fact, it was on the basis of these illegalities and irregularities that the court nullified the presidential election.
The Supreme Court’s finding on criminal culpability took centre stage in the subsequent comments on the case.
Following the decision on September 1 and before the delivery of the reasons for judgment on September 20, there had been a raging debate over whether the Director of Public Prosecutions (DPP) should initiate criminal proceedings against IEBC officials.
The DPP had stated he would await the court’s reasoned decision before making any move.
Media reporting and commentary interpreted the court’s finding on culpability to conclude that it had cleared IEBC officials from criminal liability. But did it?
The law on commission of electoral illegalities and criminal culpability is a bit complex.
To understand it, one needs to appreciate what the legal responsibility of an election court is.
An election court is the court that decides whether an election is valid or invalid.
The Supreme Court, when it heard and determined the Raila Odinga petition, was sitting as an election court and not a criminal court.
This distinction is important because the responsibility of an election court is restricted to determining whether there was commission of electoral irregularities during the conduct of an election and whether, because of those illegalities, it should invalidate the election.
To be clear, an election court has no responsibility to determine whether electoral offences were committed during the conduct of an election.
That is responsibility of the criminal court.
Even though the law provides that only a criminal law court can determine whether a person should be convicted of an electoral offence, an election court still has the power to determine whether an electoral offence may have been committed.
Note the word “may”. In other words, an electoral court’s determination on the commission of an electoral offence is not conclusive because there is no obligation for it to make a finding on whether an electoral offence was committed when determining whether an election was valid or not.
Why then did the Supreme Court have to state whether it was imputing criminal culpability on IEBC or its officials?
There is at least one reason for this.
The petitioners had asked the Court to find that electoral offences were committed.
Being a specific request in the petition, the court had to make a finding and give reasons.
This is the responsibility and accountability that our courts’ have.
The responsibility being, when a court is asked to determine an issue, it must provide the explanation why it decided the way it did.
In this case, the Supreme Court’s explanation was that it had not been provided with evidence incriminating any IEBC official.
The court was not saying that IEBC officials did not commit electoral offences, but that those who said they did had not provided it sufficient evidence to prove their claim.
In essence, the Supreme Court did not incriminate any IEBC official but neither did it clear any IEBC official from criminal responsibility.
Yes, it was open to the court to be persuaded that certain officials may have committed electoral offences.
However, if the Court had found that an electoral malpractice of a criminal nature may have occurred, the law would have required it to issue an order alerting the DPP of this finding.
The responsibility of the DPP after that would be to order investigations to determine whether to prosecute any person found to have played a part in the commission of the illegality.
Nevertheless, a critical point needs to be made here and it is this: the fact that the Court does not issue an order to the DPP does not mean that the DPP cannot investigate whether electoral offences were committed.
Far from it. In fact, where an election court finds, like the Supreme Court did, that illegalities were committed, the DPP is duty bound to determine whether any of those illegalities would be of a criminal nature.
If he does not undertake this analysis he would be in dereliction of duty. An example will suffice here.
The electoral offences law states that it is a criminal offence for an IEBC official to record a false entry or an entry he or she does not believe to be true.
Given the abundant evidence before the Court that numerous forms 34As and 34Bs contained false entries, it is reasonable to consider whether the IEBC officials who made or directed the entry of such information committed criminal offences.
All this says it is not over yet. The DPP has reassured Kenyans that he is studying the Supreme Court’s judgment to determine whether electoral offences were committed.
We hope that when he is done with the study he will have reasons for the decision he takes.
The author is the Executive Director of Katiba Institute