Raila’s petition is ‘science fiction’, Uhuru team argues

What you need to know:

  • Mr Abdullahi asked the court to dismiss the case filed by Mr Odinga on the basis that it raised a wide range of allegations but failed to prove them.
  • The Senior Counsel warned that the court should be very cautious in departing from its 2013 decision.

President Uhuru Kenyatta has dismissed the petition by National Super Alliance leader Raila Odinga, saying the opposition chief has not provided any evidence to adequately challenge his re-election, but has instead told a “fantastic” story based on imagination.

Describing the petition as hollow and a piece of science fiction, President Kenyatta’s lawyers noted that even if the response and the evidence provided by the electoral commission and the President were to be set aside, it would still not be possible for the Supreme Court to invalidate the result.

According to Senior Counsel Ahmednasir Abdullahi and Fred Ngatia, who led the President’s defence, it would be unfair to punish the voters, who queued for hours to cast their vote and thus make their decisions, for the mistakes of poll officials.

PROOF
Mr Abdullahi used the example of an illiterate herdsman in Mandera making his choice and then having it thrown out because the electoral officer there did not stamp one of the forms in which the result was filled.

He asked the court to dismiss the case filed by Mr Odinga on the basis that it raised a wide range of allegations but failed to prove them.

He equated the petition by Mr Odinga to “science fiction that can only excite movie directors at Hollywood”.

“Even if the lowest standard of proof is applied, this petition will be dismissed,” he said.

The senior counsel said that from his understanding of the law, “in 99 per cent of the cases, you can only invalidate a presidential election on the transgressions of the voter”.

“Maybe one per cent if it is the IEBC,” he said. “It’s all about the voter. I will show this court why I consider the petition a piece of science fiction.”

REJECTED VOTES
He told the judges that for the petition to succeed, the court would have to find that the 15 million Kenyans who voted on August 8 do not count.

“Even if the electoral commission, Mr Wafula Chebukati and Mr Kenyatta’s evidences were expunged from the record, this petition would still be dismissed.

"It pleads no cause of action. Even if you lower the standard of proof to one below balance of probability, this petition will still be dismissed,” he added.

Mr Ngatia urged the court not to overturn the 2013 decision, which decided that rejected votes should not be used in calculating the percentage of votes candidates get in the election.

“Rejected votes cannot be taken into account in the final tally. It is a point we argued in 2013, and nothing has changed to make us depart from it.

"There should be uniformity in the judgments of the court,” Mr Ngatia said.

INSIGNIFICANT
The lawyers also tried to explain the reported difference between the number of people who voted in the presidential election and other seats.

IEBC lawyer Kamau Karori explained, at the insistence of the judges, how possible it was for a voter to ignore five other elective seats and vote for the presidential candidate alone.

According to Mr Karori, the voter can decide not to vote for other candidates and stuff the ballots in one box.

This, he explained, would be counted as a rejected ballot.

On discrepancies, Mr Ngatia said the numbers Mr Odinga was complaining about are so insignificant that they could not affect the outcome of the poll.

“We lost about 2,000 votes as some of our votes were posted to a candidate next to us (Mr Michael Wainaina),” he said.

NETWORK
Mr Ngatia said prior to the polling date, all political parties and Kenyans were informed that 11,000 polling stations would be affected in the transmission of results because of lack of 3G or 4G network.

This meant that the results from the said polling stations would not be streamed instantaneously.

He said the voters in those areas were not disenfranchised because they voted and the date captured in forms 34A and 34B.

He laughed off complaints that votes started trickling into the national tallying centre about seven minutes after the voting was completed.

“They are making a complaint instead of a compliment,” he said, adding that the said results came from Narok Main prison where there were only 10 voters.

DEMOCRACY
Mr Ahmednassir told the six judges of the Supreme Court — Justice Mohammed Ibrahim was taken ill — that the best evidence by Mr Odinga had probably been submitted by his lawyer Mr Orengo.

“But it was not good enough because it was hearsay…. It was not grounded in law but the grievances of losing an election,” he added.

Placing the voter at the center of his argument, Mr Abdullahi said the major test that confronts the court was to establish whether the public had expressed their sovereign will on August 8, arguing that nothing else mattered.

He told the court the foundation of democracy placed the people at the center of the voting process and this foundation had nothing to do with constitutional, legal technicalities or the commission’s administrative challenges.

“The essence of the vote is about who voted because numbers matter. The most important thing is to show that the winner had the numbers,” he said.

“The approach is not whether IEBC made mistakes. The approach is that the Kenyan people made their choice and this can only be invalidated if the court establishes that there was a fault on the part of the voter.”

VOTER
He added that the court can only nullify the presidential election if the petitioner submits cogent evidence like if it finds that there was something wrong with the voter.

“The court can only nullify if it establishes that people who were not entitled to vote indeed voted.

"It is about the voter. The person who exercised his sovereign will as required under Article 32(2) of the Constitution,” Mr Abdullahi argued.

The lawyer further said President Kenyatta is a nominal respondent in the case.

“It is not about what Uhuru got. The fulcrum, the very foundation and the focal point is that we are dealing with the voter on the premise that every citizen has the right to exercise their sovereign will,” he said.

PRECEDENCE
The Senior Counsel warned that the court should be very cautious in departing from its 2013 decision.

The court, he said, over the years has developed a legal regime and the interpretation of the Constitution by the court was sound.

“It is always important to solidify precedence and there is a risk of falling into disrepute if you change case law.

"Raila versus IEBC 2013 is bedrock of precedence. You cannot depart from an interpretation of the Constitution unless it is shown that it was erroneous,” he said.