Petitioners lay case as Uhuru, IEBC defend win

Chief Justice David Maraga consults with Justices Jackton Ojwang’ and Isaac Lenaola during the hearing of the Presidential petition at the Supreme Court yesterday

Two activists challenging President Uhuru Kenyatta’s rerun win yesterday laid out their case for nullification, telling the Supreme Court it was “the last barrier before we plunge into an abyss”.
Oxford-trained lawyer Njonjo Mue from Kiambu and Khelef Khalifa said Kenyans are keen to see whether the judges will uphold the rule of law and the Constitution or apologise to Kenyans for having invalidated the August 8 presidential election.
The David Maraga-led court was showered with praise— and equally vilified by Uhuru and Jubilee — for overturning Kenyatta's victory on August 8, citing massive illegalities and irregularities.
Never before has a sitting African President's victory been overturned.
The apex court ordered a rerun, which was held on October 26, and which Uhuru won. That victory is being challenged.
Lawyer Julie Soweto, representing Mue and Khalifa, said, "We the people are beseeching this court to act in defence of the Constitution and the law. The commission (IEBC) does not seem to understand the law and the Constitution."
Soweto said when the court nullified the August 8 poll, the commission was directed to conduct the rerun in strict compliance with the Constitution and applicable law.
“We will demonstrate that the commission did not do this,” she said.
Before the court is the election petition by the two activists, and another by former MP Haroun Mwau.
These proceedings may be the last chance for legal scrutiny of presidential rerun.
The protracted political crisis has stirred fears for the stability of the Kenya,a regional hub for trade, diplomacy and security.
The court must rule by Monday next week.
If the victory is upheld, Kenyatta will be sworn in on November 28.
Yesterday the court directed the IEBC to give petitioners access to original vote tally forms and a copy of the voter register. It denied a request for access to electronic devices used in tallying.
Maraga told petitioners to file a report on their findings by this afternoon.
Soweto had told the court there is no way the IEBC could have been in a position to conduct credible election meeting constitutional requirements because it was being controlled by the Executive.
“This court cannot avoid the reality before its eyes. IEBC is under the control of President Kenyatta. Their pleadings are similar. The chairman was never independent but he worked to please political leaders — NASA and Jubilee," Soweto said.
The two activist petitioners listed a raft of issues, which they said raise clear questions of the legitimacy and credibility of the October 26 rerun.
The issues include lack of independence of the IEBC, internal wrangles amongst the commissioners leading toRoselyn Akombe's resignation and lack of consistency in results.
NASA leader Raila Odinga withdrew and urged his supporters to boycott the poll, which Uhuru won without significant opposition.
Soweto said Section 81 of the Constitution requires compliance with principles of a free and fair election, including being free from violence, intimidation or corruption.
She cited a press statement by IEBC Chairman Wafula Chebukati just before elections in which he said he could not guarantee a free and fair poll.
This admission by Chebukati alone raises serious doubts and condemns the outcome of the poll, the lawyer said.
She said Chebukati's admission points to the fact there were partisan interests within the commission.
In a robust defence, however, both the IEBC and Kenyatta defended themselves, urging the court to dismiss the two petitions that they called a waste of time.
Through his lawyers, Kenyatta said the election was conducted according to law. He said commissioner Akombe had not adduced any affidavits before court regarding the petition, the fresh election was a national poll with returns from the whole country — except 27 constituencies where NASA and its supporters designed and caused violence.
Kenyatta also said Raila's withdrawal was inconsequential as there were other candidates with a right to participate.
Petitioners also said a free and fair election requires fresh nominations, which were not held for the rerun.
However, Kenyatta's lawyer Melissa Ngania said, "It will be prejudicial to nullify the election over a nomination dispute and it will occasion grave injustice to him [Kenyatta] and taxpayers who spent over Sh14 billion."
At one point, while Soweto was making her arguments based on Akombe's press statement about turmoil and bias at the IEBC, Justice Jackton Ojwang requested her to explain whether she was referring to a statement of fact from the bar or statement attributed to any witness.
Lawyer Ahmednassir Abdullahi agreed, saying Akombe had not sworn an affidavit.
The lawyer said Soweto should clarify how she was relying on statements without authenticating their veracity.
Soweto faulted the IEBC for its decision to allow a repeat election in only certain areas, leaving out a section owing to violence.
“Threats were clearly present before and on the polling day. My Lords, 3,635 polling stations did not vote.”
On lack of consistency by the IEBC, the lawyer submitted that the number of registered voters and the voter turnout changed at least three times.
Petitioner former Kilome MP Harun Mwau based his case against Uhuru's win on grounds there were no nominations for the court-ordered presidential rerun, thus rendering the October 26 repeat null and void.
Through lawyers Benjamin Musyoki and Mark Ouma, Mwau argued the rerun was not held in accordance with the Constitution as none of the candidates had been nominated by their parties for the repeat.
They said Uhuru and the rest of the candidates, except independent candidates, were not qualified to vie.
“Does it mean the other candidates used the 2013 nomination certificates to run for the October 26 repeat election? It is our contention the October 26 poll was a fresh election but not a continuation of the previous election,” Ouma said.
He said the Constitution requires that only validly nominated candidates are included on ballot papers.
“The presidential nominations held prior to the August 8 General Elections had expired, since the presidential election was nullified by this court. We should not have a situation where people alter necessities and seek to justify them through the Constitution,” he said.
In response, lawyer Waweru Gatonye said the IEBC had no option but to accept and follow the decision of the High Court that directed all presidential candidates be included in the rerun.
He said the commission was bound by the two decisions of the High Court and one by the Supreme Court in the Raila Odinga petition in 2013.
“If as argued by the petitioner that nominations had to be done, it would not have been possible to do nominations within the 60 days, [set by law]" he said.
Gatonye said there was no legal requirement for the commission to conduct nominations.
Also representing the IEBC, lawyer Kamau Karori said the the commission found itself in a difficult situation following the opposition's call on supporters to boycott the rerun.
Karori said the commission's effort to train returning officers, especially in opposition strongholds, was resisted.
“The commission tried to transport voting materials to polling stations but they were prevented by NASA supporters,” he said.
As a result, Chebukati had to postpone elections in at least 27 constituencies awaiting a more favourable environment.
According to Karori, the reason the commission postponed elections in certain reasons was to ensure it did not endanger the lives of many people, including staff.
It also emerged during the hearing an earlier order requiring the commission to supply copies of the voter register to the two activists could not be complied with due to high cost involved in printing.
Lawyer Harun Ndubi representing the two told the court IEBC had written to them asking they deposit Sh80 million in its account to facilitate printing of more than 450,000 pages. IEBC lawyer Lucy Kambuni explained it would take almost two weeks to make copies if they didn't go to a factory.