The electoral commission has described the queries lodged at the Supreme Court about the repeat presidential election as “misplaced and ill-conceived” and asked the court to throw out the cases at the petitioners’ cost.
The Independent Electoral and Boundaries Commission (IEBC) said National Super Alliance (Nasa) leader Raila Odinga’s withdrawal from the October 26 election was not properly done and its decision not to hold elections in 25 constituencies was backed by the law.
The agency had its returning officers in the affected constituencies swear affidavits and filed them together with its responses last evening. It also explained the dilemma it found itself in when Mr Odinga and his running mate Kalonzo Musyoka wrote to pull out of the poll, with just 16 days left.
In response to a petition by activists Njonjo Mue and Khelef Khalifa, the electoral agency said the election laws do not provide for the withdrawal of a candidate outside the regulations and that that can only be done within three days of nomination and by filling a specific form, which did not happen.
It said since Nasa supported Dr Ekuru Aukot’s successful bid to be on the ballot, it should not distance itself from the court’s decision.
The Thirdway Alliance leader’s inclusion paved the way for all eight candidates to be on the ballot, which would have ensured that the poll happened even with Mr Odinga’s withdrawal accepted.
The IEBC said it postponed the election in 25 constituencies in Nasa strongholds because of breach of peace characterised by the destruction of property, threats to its staff and blockades that made polling stations inaccessible. It said even if voting were to happen, the potential ballots cast would not have affected the final result.
On former Kilome MP Harun Mwau’s case, the IEBC defended its move not to conduct fresh nominations and to include on the ballot Mr Cyrus Jirongo despite his having been declared bankrupt.
It said in invalidating the August 8 election, the Supreme Court did not strike out nominations done prior to the poll and that that was not even an issue in the petition.
“The election conducted in October was an election sui generis (unique) and for which there was no requirement for fresh nominations,” the IEBC said in its 14-page response.
The IEBC had gazetted only President Uhuru Kenyatta and Mr Odinga before the High Court order following Dr Aukot’s case.
Mr Mwau said the candidates of the October 26 election were “strangers” who had not been nominated or paid fees as required.
But even if the IEBC were to have conducted fresh nominations, it said in the response, it would have been “practically impossible”, given the 60-day period granted.
The IEBC said it would have been logistically easier, in view of the shortness of time, to remove the United Democratic Party candidate Jirongo’s name on the ballot papers than it would have been to include it later in case the bankruptcy order was overturned.
It also defended its failure to demand the statutory Sh200,000 nomination fees, saying all it needed was to gazette the names.
Meanwhile, IEBC chairman Wafula Chebukati has stated that the fresh election was conducted in strict conformity to the Constitution and applicable election laws.
In a sworn statement filed in opposition of the two petitions, Mr Chebukati denies making haphazard decisions ahead of the poll. He stated that the IEBC was well guided by the decisions of the High Court and consultations with the public and stakeholders.
Mr Chebukati stated that all the decisions made by the IEBC and himself, including publication of various gazette notices, were premised on the existing law and, in the circumstances, the commission cannot be accused of having acted in violation of the law or being incompetent or negligent.
He said the IEBC informed members of the public and stakeholders of its decisions and the measures put in place to ensure that the elections were conducted in full compliance of the law and the decision of the court.
Additional reporting by Sam Kiplagat