Anxiety as country awaits final verdict on presidential poll

Saturday March 30 2013

Kenya's Chief Justice Willy Mutunga (3rdL) heading a six-judge bench of the country's Supreme court, presides on March 25, 2013 over the hearing of a petition challenging the outcome of the General Election of March 4. The Supreme Court will on Saturday deliver a historic judgment that will either clear the way for the swearing in of Mr  Uhuru Kenyatta as Kenya’s fourth President, a run-off vote involving Mr Kenyatta and Prime Minister Raila Odinga or a fresh election. Photo/FILE

Kenya's Chief Justice Willy Mutunga (3rdL) heading a six-judge bench of the country's Supreme court, presides on March 25, 2013 over the hearing of a petition challenging the outcome of the General Election of March 4. The Supreme Court will on Saturday deliver a historic judgment that will either clear the way for the swearing in of Mr Uhuru Kenyatta as Kenya’s fourth President, a run-off vote involving Mr Kenyatta and Prime Minister Raila Odinga or a fresh election. Photo/FILE NATION MEDIA GROUP

By JULIUS SIGEI [email protected]

The Supreme Court will on Saturday deliver a historic judgment that will either clear the way for the swearing in of Mr Uhuru Kenyatta as Kenya’s fourth President, a run-off vote involving Mr Kenyatta and Prime Minister Raila Odinga or a fresh election.

The Supreme Court’s much-anticipated decision will end the stalemate over the outcome of the presidential election on March 4, 2013 that has kept the country anxious for the past two weeks.

Mr Odinga and the civil society group African Centre for Governance (Africog) filed the petitions challenging the Independent Electoral and Boundaries Commission’s declaration of Mr Kenyatta as the presidential election on March 9.

The six judges at the centre of national and international attention are Chief Justice Willy Mutunga, Justice Smokin Wanjala, Justice Philip K. Tunoi, Lady Justice Njoki Ndung’u, Justice Mohammed Ibrahim and Justice J. B. Ojwang’.

On Friday, the Chief Justice announced that the judges would work overtime to complete the ruling on Saturday. He held a brief session with lawyers for the petitioners and respondents at the Supreme Court in the morning, during which the lawyers made brief comments about a partial vote re-tallying the court had ordered as part of its hearing of the petitions. (READ: Vote recount shows anomalies- lawyers)

According to experts interviewed by Saturday Nation, there are three possible outcomes of the petition.

Lawyer Nzamba Kitonga, who chaired the panel of experts who wrote the Constitution, said on Friday the ruling was expected to either bring the March 4 General Election process to an end or open a new battlefront by ordering a re-run or a fresh election.

“The ruling, and the case as a whole, is historic,” Mr Kitonga said. “It is exactly what we anticipated as framers of the Constitution promulgated in 2010 — a process which everybody watches as it executes itself.”

If the court finds that the various claims of election irregularities are not proven, it is will order that the results declared by the IEBC stand.

This will pave the way for President-elect Kenyatta to be sworn in as Kenya’s fourth President. The decision of the Supreme Court is final.

In the second scenario, the Supreme Court could nullify the results and order a fresh election.

Constitutional lawyers are, however, not agreed as to what a “fresh election” means.

Some argue that it will mean a run-off between the two leading candidates — Mr Kenyatta and Mr Odinga.

Lawyer George Kegoro said the wording of the Constitution on the matter is rather vague. “In the event that the election is nullified, the constitutional phrasing is wide enough to give the Supreme Court sufficient room to decide what a fresh election means — a run-off between the leading candidates or a new election in which other candidates can also participate,” said Mr Kegoro, also the executive director of ICJ-Kenya.

While completing his submission on Thursday evening, Mr Ochieng’ Oduol, one of Mr Odinga’s lawyers, said the court should determine whether Mr Kenyatta garnered the 50 per cent-plus-one of the votes cast as declared by IEBC.

“The jurisdiction to examine and declare is catered (for) in this court,” Mr Oduol said, adding the court should tell whether Mr Kenyatta was validly declared President-elect.

But Attorney-General Githu Muigai, appearing as a friend of the court, argued that nullifying Mr Kenyatta’s election could result in fresh polls for all the six elective posts.

Mr Muigai said the court should consider the consequences of its decision as the law gave two different meanings of fresh elections. The same argument was advanced by Mr Katwa Kigen, for Deputy President-elect William Ruto.,

Prof Muigai said if the election of Mr Kenyatta was declared null and void, and a fresh election ordered, the polls could either be held up to the “primary level or for a limited number of positions”.

On Friday, police vowed to crackdown on any planned demonstrations ahead of the ruling, saying they were privy to information on planned demonstrations.

“This should not be construed as denial of the right to association, but a precaution to ensure criminal elements do not hijack such demonstrations to engage in lawlessness,” Inspector General of Police David Kimaiyo said.

Meanwhile, the National Security Advisory Council met yesterday and appealed to for calm ahead of today’s ruling.

“The government would like to assure Kenyans that there will be maximum security all over the country and people should go about their business without fear,” said a statement from the head of public service Francis Kimemia.