Chief Justice David Maraga has directed IEBC to put in place a complementary system for the October vote as previous elections had “enormous illegalities and irregularities”.
Maraga said the electoral agency should go back to the drawing board before NASA chief Raila Odinga and President Uhuru Kenyatta vie again.
The election has been scheduled for October 17 but this could change.
“In conducting the fresh election, IEBC must conform to the constitution for what is the need of having a constitution when it is not respected?” he asked.
“If anomalies remain, the same court will annul the elections regardless of the aspirants….As it is important to respect the will of the people, it is also important to maintain the purity of an election.”
Maraga said irregularities by the commission were of a substantial nature so they cannot be ignored.
“Some forms did not have security features but were said to have been printed by the same printers,” he said.
In her address earlier on Wednesday, Deputy Chief Justice Philomena Mwilu said the electoral agency’s system was infiltrated and data contaminated.
Maraga further said IEBC’s Immaculate Kassait swore an affidavit misleading the Supreme Court that all forms had security features.
“Where did the security features on the forms declared by the IEBC disappear to?” he posed.
He said no reasonable explanation was given as to why some forms lacked the features and asked how a presiding officer failed to append a signature to a document he or she prepared.
“Could the critical documents be considered genuine with no security features? We were left wondering. Form 34C that was used to declare the result was not by itself free from doubts of authenticity,” he said.
“Some of the forms used were carbon copies while others were originals hence authenticity could not be guaranteed.”
The top court president said that at the end of the day, the elections must reflect the true will of the people whether they are about numbers or laws.
Maraga noted the court cannot nullify elections when errors are minimal, and that no election is perfect, but reiterated irregularities cannot be ignored when they are “enormous”.
“Where do all those irregularities leave this election? It is true that where the quantitative difference is manageable, we should not disturb the election. What if the numbers [raise] many unanswered questions? The quality is as important as the quantity.”
Maraga said “the greatness of a nation lies not in the might of its army or its economy but its fidelity to its constitution”.
“It is our finding, irregularities by IEBC would, in any court applying its right mind, be found unconstitutional.”
The CJ has been criticised by many following the September 1 nullification of Uhuru’s victory.
He talked tough on Tuesday saying if leaders are tired of a strong and independent Judiciary, they can call a referendum and abolish it all together.