Why petitioners seek to nullify October 26 presidential poll

Tuesday November 7 2017

Njonjo Mue.

Mr Njonjo Mue at the Supreme Court of Kenya on November 6, 2017. He filed a petition against the October 26 presidential election, a few minutes to the deadline. PHOTO | SAM KIPLAGAT | NATION MEDIA GROUP 

By SAM KIPLAGAT
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Two presidential election petitions were filed on Monday signalling another wait for the swearing in of President Uhuru Kenyatta or another round of a fresh election.

One petition was filed by former Trade assistant minister Harun Mwau and another by activists Njonjo Mue and Khalef Khalifa.

LAW

In a petition filed a few hours to the deadline, Mr Mue and Mr Khalifa argue that the Independent Electoral and Boundaries Commission (IEBC) did not conduct the fresh election in strict conformity with the Constitution and the applicable laws, and as directed by the Supreme Court of Kenya on September 1.

They have listed the IEBC and its chairman Wafula Chebukati as first and second respondents in the petition.

The activists say the electoral commission’s failure to subject the presidential candidates to fresh nominations makes the October 26 election void.

“The election conducted by the 1st and 2nd Respondents on 26 October 2017 failed to meet the general principle stipulated under Article 81(d) of the Constitution of Kenya of universal suffrage based on the aspiration for fair representation and equality of vote,” the petition reads.

The petitioners said section 83 of the Elections Act contemplates that where an election is not conducted in accordance with the Constitution and the written law, then that election must be invalidated notwithstanding the fact that the result may not be affected.

‘INVALID’

“Even so, although the petitioners aver that both the results and the conduct of the election were affected and rendered invalid, the petitioners’ position is that the non-compliance with the Constitution, the written laws and the Rule of Law is sufficient to invalidate the Presidential Election,” Mr Mue says in a sworn affidavit.

They argue that without conducting a nomination, there was no basis for the fresh poll because the process for the election had not been initiated.

Mr Mue said the Commission was operating outside the law and therefore the election was rendered invalid from the beginning, and that President Uhuru Kenyatta was elected without a nomination certificate.

Mr Mwau has also filed a similar petition, arguing that the election is void since there was no fresh nominations.

TIMELINES

The hearing of the petition is likely to start on Sunday or Monday, depending on the speed at which the respondents file their replies.

According to the timelines, the petitioners have two days to serve the petition to the respondents – IEBC, Mr Chebukati and President Uhuru Kenyatta.

The respondents will have four days to file their responses and a pre-trial conference will be heard on the eighth day, followed immediately with the hearing.

Judges have only four days to hear and determine the case.

‘MISMANAGED’

The three petitioners argue that despite clear directions by the court, the IEBC continued to act and operate outside the law and “as though it is a law and institution unto itself”.

Mr Mue says in a sworn statement that the Commission mismanaged the fresh election such that it cannot by any standards be deemed to have been an election.

He says the IEBC demonstrated serious lack of independence and neutrality, incompetence, unpredictability, capriciousness, arbitrariness, dishonesty and contumacious disregard for the Constitution, the law and the lawful authority of the Supreme Court.