Eleventh-hour court battles may yet derail the fresh presidential election ordered by the Supreme Court nearly two months ago.
A case by three civil society activists filed and expedited for hearing at the Supreme Court on Wednesday is seeking to have Thursday’s election cancelled and rescheduled.
The case, by Khelef Khalifa, Samuel Mohochi and Gacheke Gachihi, was on Tuesday certified urgent by Chief Justice David Maraga and the three applicants directed to file their submissions by 6pm Tuesday evening.
Mr Khalifa is a director at Muslim for Human Rights, Mr Mohochi the Executive Director at the International Commission of Jurists, and Mr Gachihi a former candidate for the Mathare parliamentary seat.
Justice Maraga also directed the Independent Electoral and Boundaries Commission and its chairman, Wafula Chebukati, to file their responses and submissions by 8am Wednesday morning.
The case comes only hours to the election: by last evening, ballot papers for the last 14 counties had been received and were enroute to the counties.
Officials estimated that Sh6 billion had been paid to suppliers, tablets and other equipment were in stations, and staff had been trained in all but certain parts of Nyanza where IEBC activities were disrupted.
With hours to the defence of the case, there were rumours and speculation about whether IEBC would present a unified front at the Supreme Court, or whether the chairman will go his own way.
Earlier in the day, Mr Chebukati gazetted his deputy chairperson Connie Nkatha Maina as the deputy presidential returning officer. A press conference scheduled for 2pm was moved to 3pm, and then cancelled altogether.
An IEBC official told the Nation that the commission’s legal team was ready for court but could not coordinate strategy with the chairman’s own lawyers because, apparently, the chairman could not be reached. Mr Chebukati did not answer calls by the Nation. Neither did he respond to our text messages.
National Super Alliance leaders have confidently predicted that there will be no election on Thursday, and they just might get their wish.
At the High Court, two cases touching on the elections were separately dismissed. One was by activist Okiya Omtatah, who wanted the court to temporarily bar the electoral commission from holding the election and a caretaker government set up for 60 days to allow proper preparations for the presidential election.
In another chamber, Pokot South MP David Pkosing lost his bid to have the court compel Nasa candidate Raila Odinga and his running mate Kalonzo Musyoka to participate in the repeat poll. There is still another case, filed by former MP Harun Mwau, to stop the poll, and the decision will be made on Wednesday.
A case filed by Jubilee seeking to have Mr Odinga and Mr Musyoka held in contempt of court for demanding a postponement of the election was slated for hearing a day after the election by Deputy Chief Justice Philomena Mwilu.
On Tuesday, CJ Maraga asked the courts, including the Supreme Court, to sit and hear election-related cases, despite Acting Interior Cabinet Secretary Fred Matiang’i making today a public holiday.
In the political sphere, the twists and turns continued. Mr Odinga and the Nasa leadership contradicted each other on whether there would be demonstrations on Thursday.
Mr Odinga told the BBC in an interview that he had not called for demonstrations on Thursday. “We have not told people to demonstrate on the polling day. We have not said that at all,” Mr Odinga said. “We have told people to stay away.”
But the Nasa secretariat and Mr Odinga’s lead lawyer, Siaya senator James Orengo, said the demonstrations would go on.
In Parliament, senior Jubilee Party legislators said they were aware of a plot by Mr Odinga to parade fake ballot papers marked for President Kenyatta and fake Forms 34A and 34B to drive the narrative that Thursday’s election has been rigged.
“We have forewarned you so that when Raila Odinga comes to talk about these, we will have shared this information with the public,” said Senate Majority Leader Kipchumba Murkomen, who was speaking for the coalition.
Mr Murkomen, Kericho senator Aaron Cheruiyot, and Kikuyu MP Kimani Ichung’wah said they were also aware of a plan by civil society group Africog and two lawyers, backed by Mr Chebukati, to file a case at the Supreme Court seeking to have the elections postponed.
In the case that will be heard — and possibly determined because of the elections date — on Wednesday, the three activists argue that the prevailing environment in the country cannot guarantee a credible poll.
They allege that there exists active sabotage and frustrations of the fresh election, dealing a blow to IEBC’s ability and capacity to conduct a free, fair and credible election.
Further, the three, through their lawyers John Khaminwa and Harun Ndubi, argue that commissioners of the IEBC are deeply divided and cannot guarantee a fair and credible poll.
Commissioner Roselyn Akombe resigned and fled to the US after claiming that the repeat election as planned cannot meet the basic expectations of credibility and fairness.
Additional reporting by John Ngirachu