Justice Njoki Ndungu Ruling

Here is a summary of Justice Njoki Ndungu minority ruling during the 2017 presidential election petition

Updated: 20.09.2017

  1. The courts should not cause Jurisprudential crisis through their findings
  2. The voter bears the right of franchise
  3. Elections are ‘RIGHTS- centric’ not ‘FORM-centric’
  4. You have the Various verifying agents
  5. a) IEBC
    b) Party
    c) Candidate agents -Senators, Governors
    d) Media
    e) Observers – Their reports are filed with commission so they have a formal status, they found the election to be free and fair
  6. It is insufficient for the court to say it had a doubt, the court must be satisfied by evidence before it. It must not be speculative
    Regulation 68 provides the ballot paper does not provide for security features on ballot papers. (It provides it shall have name and photo of candidate, be capable to be folded, party symbol) – that does not apply for the forms
  7. An election court must satisfy that evidence is real and not imagined in order to nullify an election
  8. The ballots exist – People speak through the ballot. if Majority were in doubt that should have been the option
  9. “The ballots are alive and available when you have to overturn a decision do not result to forensic guesses – why avoid the obvious and settle for the risky”
  10. Voters are identified at the polling station, the votes at the polling station, the Count happens at the polling station, to verify the voice of the voter you must check the vote as cast – Transmission of forms cannot be the basis for nullifying a Presidential election
  11. Transmission was intended to cure the transportation of forms to Nairobi by all 290 Returning Officers – that was a key issue in the Maina Kiai case
  12. IEBC argued in COA that the case by Maina Kiai would extinguish the power of IEBC to amend or alter the result
  13. COA ruled, “Polling Station is the true Locus for the free expression of the voters will..”
  14. COA – ruled that the role of the chairman of IEBC was only to tally results from constituencies, declare and forward declaration to incumbent President and CJ
  15. Did IEBC obey the Maina Kiai decision – in my view that was demonstrated in court, I am satisfied that IEBC adhered to the guidelines set by the Maina Kiai decision despite the decision coming 35 days to the elections.
  16. What is the place of Maina Kiai decision in future elections? – I disagree with Maina Kiai decision since It endorses another level of tallying at constituency and it incapacitates the iEBC chair. IEBC Chair is the returning officer of the Presidential Election.
  17. You cannot find the National threshold at the constituency. only IEBC Chair has the capacity to verify and declare a Presidential election, not the Constituency because there are other points to verify before declaring a winner of the Presidential election – for instance 25 % requirement in counties, 50+1
  18. The Constitution must be interpreted in context and must be holistic
  19. Our electoral system is MANUAL – You pick a ballot manually, you tick manually, you insert it in the box and count manually – our system is not like India or USA where it is clearly electronic. we have a system that needs clarity via legislation.
  20. The IT experts by the petitioners fail the test of Expert testimony as provided for in the Evidence Act.
  21. Whoever alleges, MUST prove
  22. The burden of proof in Election cases – the Evidential burden is borne by petitioners at the onset, however, the respondents bear the evidential burden of proof in rebutting the allegations.
  23. The Petitioner must prove that the election was NOT conducted according to the law and that affected the results of the election.
  24. However, the Legal burden lies on the Petitioner
  25. A candidate or her agent cannot abscond duty from the polling station then ask the court to overturn the election
  26. IDP payments were approved by Parliament and were within Gvt workplace and therefore nothing to do with elections
  27. I have analyzed affidavit evidence of the petitioners and respondents
  28. Orders on accèss to Information – The majority call it orders to access – In interpreting orders the court reasons must be read in whole so as to implement. For the avoidance of doubt – This court did NOT give orders for access to SERVERS
  29. Failure to have security features on the form is not FATAL
  30. The Majority had an opportunity to check the forms as deposited in the court like I did, but they did NOT
  31. When you compare Registrar report and the certified forms brought by IEBC to court the majority finding falls, I checked and that is what is called verification
  32. The alleged irregularities and illegalities must have a nexus
  33. Which circumstances are different between Raila 2013 and Raila 2017 to persuade the Majority to depart? I do not see any
  34. Parliament must clarify article 83 of the act –
  35. The Supreme Court decision to annul a presidential election does not take over rulings in lower courts
  36. The People speak through the Ballot
  37. The alleged irregularities should have checked the certified forms as provided by IEBC
  38. It is unfortunate that the majority has decided to take a decision to disfranchise the people, by making a decision based on design of forms as opposed to the decision of the electorate
  39. Judiciary must operate within its power and must prevent abuse of power

Njoki Ndungu Biography

Njoki Ndung’u  whose full name is Njoki Susannna Ndungu was born on 20 September 1965. She is a Kenyan lawyer and an associate justice of the Supreme court of Kenya.

Njoki Ndungu Education Background

  1. She also holds a diploma in Women’s Human Rights from the World University Services, Austria.
  2. She holds a Masters of Law (LL.M) in Human Rights and Civil Liberties from the University of Leicester in England.
  3. She later joined the University of Nairobi to pursue a career in Law.
  4. After Kenya High School she attended the Valley Secretarial College in Nairobi to do her secretarial course.
  5. She attended the Kenya High School for her Secondary education.

Njoki Ndungu Career

  1. 2000 – 2002: Political Analyst for the Organization of African Unity, (OAU).
  2. 1995- 1996: National Protection Officer at UNHCR Kenya Branch Office
  3. 1993- 1995: Programme Officer (Civic Education) with the Institute For Education
  4. 1989- 1993: State Counsel at the Office of the Attorney General

Justice Njoki Ndungu Supreme Court of Kenya

Hon. Justice Njoki Susanna Ndung’u is a Judge of the Supreme Court of Kenya. She is an Advocate of the High Court of Kenya and holds both a Masters in Law degree (LL.M) in Human Rights and civil liberties and a diploma in Women’s Rights. She has previously work experience as State Counsel in the Office of the Attorney General, Programme Officer at the Institute for Education in Democracy, and National Protection Officer at United Nations High Commissioner for Refugees. She has also worked as a Political Analyst in Conflict Management at the African Union.

Justice Njoki S. Ndung’u is a former Member of the Pan-African Parliament and of the 9th Parliament in the National Assembly of Kenya, where she sat in the Standing Committees on Defense and Foreign Affairs, Administration of Justice and Legal Affairs and the Parliamentary Select Committee on the Constitution. She is the architect of the Sexual Offences Act 2006, and of amendments to the Employment Act 2007 providing for paid maternity and paternity leave, as well to the Political Parties Act 2007 on affirmative action measures for women in political participation.

Hon. Njoki Ndungu sat as a member of the Committee of Experts that drafted the Kenyan Constitution and has received international and national recognition for her work; she was awarded the UN Person of the Year in Kenya 2006 and the International Commission of Jurists – Jurist of the Year Award 2006 and Presidential Commendation of the rank of the Elder of the Burning Spear (EBS) in the same year. Justice Ndung’u was more recently awarded the rank of Chief of the Burning Spear (CBS)

Njoki Ndungu Politics

She served as a National Rainbow Coalition (NARC) nominated member of Parliament between 2003-2007 and served on the following Parliamentary Committees:

  • Departmental Committee on Administration of Justice and Legal Affairs
  • Departmental Committee on Defense and Foreign Affairs
  • Select Committee on the Constitution of Kenya
  • Committee on Conflict and International Cooperation (PAP)

She also moved several private members bills including:

  • Motion on Maternity Benefits Amendments on Maternity and Paternity Rights in Employment Act 2007
  • Key human rights amendments to the Refugee Bill ‘Sexual Offences Bill, 2006’

Njoki Ndungu Awards

  • The UN Person of the Year in Kenya 2006
  • The International Commission of Jurists – Jurist of the Year Award 2006
  • Presidential Commendation of the rank of the Elder of the Burning Spear (EBS) in the same year 2006.
  • Justice Njoki Susanna Ndung’u was more recently awarded the rank of Chief of the Burning Spear (CBS)

Njoki Ndungu husband

Njoki Ndungu is not married but she has a child.

Njoki Ndungu Children

In 2013, Njoki Susanna Ndungu gave birth to a baby. This was the period when the 2013 presidential elections petitions were going on.

Njoki Ndungu age

Njoki Ndungu was born, 20 September 1965

Njoki Ndungu Wealth, Salary, Investments

Justice Njoki Ndungu’s Salary as Supreme Court judge is Ksh. 757,770 basic salary and Ksh. 324,758 in allowances totaling to Ksh. 1,082,528

Njoki Ndungu I am happy with my life

I feel humbled, amazed and honoured at having been part of history to help give Kenyans a new constitution. Now that the process is over, I feel a sense of relief and elation. The process was not an easy one as we had our fair share of challenges and disagreements, compromises and settlements, but that is the stuff a good constitution is made of.

The making of our new Constitution was a team effort and a historic endeavour made by many Kenyans.

Whereas I was privileged to sit in the Committee of Experts (CoE), there were thousands of men and women who served from the trenches for many years fighting against oppression and defending human rights.

Unfortunately, many of their struggles remain undocumented. I do hope that the celebration of Mashujaa Day (October 20) will recognise the efforts of these heroes and heroines by including them in our school’s history curriculum.

We should also recognise that the implementation of the new Constitution is not an event. It is process that will take months for some sections and years for others. We must set realistic timeframes and processes that will ensure the institutions are set up properly and work.

We must realise that our preoccupation with politics as a national pastime (because that is what we talk about ALL the time) is unhealthy, both nationally and on the individual level. With the new constitutional dispensation, we need to see things differently. If our daily news headlines were on our economic growth or success in sports or the arts instead of political brawling, more positive thinking will feed into a more progressive national psyche.

For me, making the new Constitution has been a personal journey that has lasted 18 years. I first joined the fight as a young activist in Fida Kenya in the mid-90s. I could never have imagined it would take this long! In the process, I also served in the United Nations, the African Union, Parliament and now in the CoE.

Njoki Ndungu – Highs and lows

What next for me? Politically I’ve been there and done that. What I enjoyed most in Parliament was the ability to make law. My highs were in the making of the Sexual Offences Act and the Employment Act provisions for maternity benefits and check against sexual harassment.

However, I really hate the intrigue that comes with political terrain — it’s ugly — and with that in mind, I certainly do not think I belong in active politics.

With the new constitutional framework, it is possible to influence the making of law from outside politics, and that is where I should be. My forte has always been in the field of human rights and the Constitution is fertile ground for interventions in different ways, particularly in the practice of law.Before I joined Parliament, I never really understood why Martha Karua was so tough, but after spending time there, I realised why she was like that. I felt like I had been thrown in with sharks and I had to quickly learn how to swim or I would drown.

Politics can be quite nasty and people can get very personal. At first, Parliament was very intimidating. It was like being a girl joining a boy’s secondary school; lots of testosterone and big egos, literally (laughs).

I quickly learnt I had to be tough and refuse to tolerate nonsense. To make it in Parliament, you have to learn how to stand firm and be tough. You cannot let yourself get intimidated. It’s also a place where you have to work hard to earn respect, especially as a woman.

The most important lesson I learnt was that in Parliament, you have to find focus. As an MP one has the ability to create change through policy formulation and legislative reform. Laws bring change for people. Once you find your focus, you pursue the change you desire to see, a day at a time.

Njoki Ndungu – Negotiating skills

Fortunately, immediately I came into Parliament, I found my focus on women’s rights issues. The campaign to zero-rate taxation on sanitary towels was my first task. After that came the Sexual Offences Act 2006 of which I was the mover and architect. After the success of that Bill, I went on a roll and managed to move four other important legislative amendments — in the Employment Act 2007 was the maternity and paternity benefits, provisions on trafficking in persons, and the compulsory sexual harassment policy requirements for institutions.

Parliament actually helped me develop my negotiating skills and ability to advocate and influence legal reform and human rights in conservative and traditional decision-making bodies. I learnt that men can also become supporters of women’s rights if properly engaged.

The women I admire the most in politics are Martha Karua and Charity Ngilu. Martha is not only my legal senior but she taught me how to be no-nonsense and straight talking. In fact, she was my key strategist in passing the Sexual Offences Bill.

Charity is my mentor in the political world, and she also taught me how to dress properly. Being a lawyer, I wore dull black outfits, to the extent that I ended up on a media’s worst dressed MPs list (laughs). Charity took it upon herself to rescue me and recommended that I buy lady-like suits, jewellery and get my hair styled so that I stop wearing a ponytail all the time! I still use some of her tips.

People have been asking whether I plan to go back to Parliament but the truth is I’m not interested in going back. I did my part for women and human rights, now I must pass on the torch to others. I’m happy with where I am in my life.

I would love to find time and go back to school to do my PhD and then lecture at the university. Women must get educated up to the highest level because education is the path to empowerment and reduction of poverty.

I currently run the Leadership Development Company (LDC) where we develop policies for corporate and other institutions on sexual harassment and non-discrimination, including on ethnicity and disability policies, especially in the aftermath of post-election violence.

Besides this, LDC is involved in advising different public and private sector institutions on the Constitution. I also want to create avenues that will bring in more women leaders into the National and County legislatures and train them on how to draft Bills and move a policy agenda.

Njoki Ndungu – Tombstone epitaph

In 2006, LDC started the Big Sister Programme, which is a mentoring programme for young girls. This entails visits to schools where I do talks with other women achievers. We speak about everything — from sex to careers. When we talk about sex, we do it not in a boring and moralistic manner but in the way a big sister would discuss it with her small sister. In the last five years, there has been an increase in teenage pregnancy and I tell the girls that abstinence eventually results in better career choices and good income.

Everything, including sex, has its time and place. I always tell girls to be proud and value themselves, and that they should get money from their neck upwards (brain power) and not from the neck downwards (bottom power).

When I’m done talking to the girls, I always tell them of my dream to one day be the United Nations Secretary General. It’s my way of encouraging them to work hard and to never stop dreaming, but to keep challenging themselves.

I want to make Kenya a better and safer country. When I pass on, the epitaph on my tombstone should read: “Here lies Njoki Ndungu. She made Kenya a safe and better place for women to live in.”

Njoki Ndungu Photos

Njoki Ndungu Video