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All eyes now on the Supreme Court as Raila files petition

Sunday March 17 2013

PHOTO/FILE Supreme Court judges led by the President Dr Willy Mutunga (centre) shortly before the beginning of the case during the hearing into the case on gender at the Supreme Court in Nairobi, November 8th, 2012.

PHOTO/FILE Supreme Court judges led by the President Dr Willy Mutunga (centre) shortly before the beginning of the case during the hearing into the case on gender at the Supreme Court in Nairobi, November 8th, 2012.  NATION MEDIA GROUP

By PAUL OGEMBA [email protected] AND EMEKA-MAYAKA GEKARA [email protected]

The attention of Kenyans and indeed, the whole world, is now turned on five men and one woman after Cord presidential candidate Raila Odinga filed a petition at the Supreme Court challenging the declaration of Uhuru Kenyatta as the winner of the March 4 election.

Mr Odinga says he wants the highest court on the land to set aside the presidential election results announced by the electoral commission on March 9 claiming the election was marred by massive irregularities, malpractices and contravention of the Constitution.

With Saturday’s historic development in the first election after the 2010 Constitution, eyes turn to the court headed by Chief Justice Willy Mutunga.

Other judges of the court include Mr Philip Tunoi, Ms Njoki Ndung’u, Prof Jackton Bouma Ojwang, Dr Smokin Wanjala and Mr Mohammed Ibrahim. The appointment of Deputy Chief Justice Kalpana Rawal is yet to be approved by Parliament and so she won’t be hearing the petition.

Mr Odinga wants the court to nullify IEBC’s declaration of Uhuru Kenyatta as president-elect and William Ruto as deputy president-elect.

He also seeks to persuade the court that the whole electoral process leading to that declaration was null and void and a fresh poll should be held.

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Mr Odinga has assembled a team of top lawyers led by Senior Counsel George Oraro who said they are confident and ready to prove before the Supreme Court that the elections were rigged in favour of Mr Kenyatta.

“We are confident the case outcome will be in favour of our client (Mr Odinga). Our case is watertight with sufficient evidence to prove the elections were not free and fair,” said Mr Oraro.

According to Mr Odinga, there were no free and fair elections and no government can lawfully be formed from the declaration of Mr Kenyatta and Mr Ruto as President-elect and Deputy President-elect respectively.

“The electoral commission failed to establish systems which are accurate, verifiable and transparent and declared results which in many instances had no relation to votes cast at polling stations. They developed opaque methods intended to manipulate results and excluded my representatives from the process,” swore Mr Odinga.

He argues that anomalies were observed in the process from voter registration, transmission of results, to tallying and accused IEBC of declaring results on the basis of unsigned Form 36, multiplying Form 36 in some constituencies and altering entry files.

Mr Odinga swore that votes cast exceeded the number of registered voters in Tiaty, Laisamis, Igembe Central, Buri, Chuka, IburiIgambaNgombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai constituencies.

He said that the final tally in Webuye East, Webuye West and Igembe constituencies differed from those announced at the centre.

In Kikuyu, Juja, Chuka, Thika, Kiambaa, Limuru, Nakuru, Igembe South, Lagdera, North Imenti, Central Imenti, Bomet East and Sigor constituencies, Mr Odinga claims there were more than two forms reflecting the final presidential results.

“In the final tally, the total number of votes cast in the presidential elections differed from those for gubernatorial and parliamentary elections which took place on the same date, clearly attesting to my belief that massive electoral fraud and malpractice occurred in contravention of the Constitution,” said Mr Odinga.

As the Cord leader moved to court, members of the Jubilee legal team set up an office at Chancery Building on Nairobi’s Valley Road.

For the past couple of days, the team has been combing through the IEBC poll results in anticipation of the Cord petition.

Sources told the Sunday Nation the team comprises Fred Ngatia, who was Mr Kenyatta’s chief agent at the Bomas vote tallying centre, and Mohammed Nyaoga, a former partner of Attorney-General Githu Muigai.

Other members of the Jubilee legal team are Katwa Kigen, Waweru Gatonye, Tharaka Nithi Senator-elect Kindiki Kithure, his Elgeyo Marakwet counterpart Kipchumba Murkommen, Dr Stephen Njiru and Ol Jorok MP-elect John Waiganjo.

One of them told the Sunday Nation in confidence that they hope to rely on authorities such as the 2000 dispute in the US between presidential candidates Albert ‘Al” Gore and George Bush.

The dispute involved the constitutionality of a manual recount of Florida election ballots during the controversial 2000 presidential election.

At the end of the election day, Bush was ahead of Gore in the Florida popular vote by only 2,000 ballots, close enough to trigger an automatic recount. After the recount, Bush’s lead dwindled to a mere 900 votes.

Gore requested a hand-recount of votes in his four strongest counties. After the recount, Bush’s margin dropped to 537 votes. Gore then petitioned the State courts for a recount of 70,000 contested ballots. Although the lower court rejected his request, the Florida Supreme Court reversed on appeal, and ordered the disputed ballots recounted.

Bush and Cheney appealed the Florida Supreme Court’s decision to the US Supreme Court, and were granted a stay on the Florida court’s order until the US Supreme Court issued its decision. The Supreme Court voted in Bush’s favour on a majority of five to four.

In his petition, Mr Odinga said a “curious feature” of the IEBC’s conduct was that it allowed a mobile phone provider to co-host both its server and that of the TNA which compromised the integrity of the electoral process and gave an impression that TNA had access to the commission’s confidential information.

He claimed that the voter register was severally altered and made it difficult to tell which one was genuine since IEBC had a total of 14,267,572 registered voters gazetted after the end of voter registration only for the figure to increase to 14,352,533 during the elections.

Mr Odinga said that the electronic results transmission systems adopted by IEBC were poorly selected, designed and implemented and that they were destined to fail from inception and allow manipulation of results.

“The failure and collapse of the system on the polling day fundamentally changed the system of polling and the number of votes cast leading to inordinate delays at the polling stations, thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place,” said Mr Odinga.

Mr Odinga argued that the election outcome was so flawed that it is difficult to tell whether the results were the true, lawful and proper expression of the Kenyan people’s will.

He wants the elections nullified on grounds that the conduct of the presidential election was invalid since IEBC failed to carry proper voter registration; presidential elections were not conducted in accordance with Article 81 and 86 of the Constitution and that IEBC failed to transmit results in electronic form before ferrying them to the National Tallying Centre.

“IEBC were under obligation to respect, uphold and defend the Constitution. They failed to properly count, tally and verify the votes which clearly show that Mr Kenyatta garnered less than 50 per cent of the votes,” said Mr Odinga.

Among the issues he wants determined is whether the commission contravened the Constitution, the IEBC Act and the Elections Act; whether IEBC officials committed an electoral offence and whether Mr Kenyatta was validly elected as the president.

In the event that the Supreme Court upholds the arguments, Mr Odinga wants IEBC chairman Issack Hassan held responsible for conducting a flawed process and an order cancelling the certificate issued to Mr Kenyatta.

He also wants the court to order a fresh presidential election and any other relief the judges may deem appropriate.

Mr Odinga said he will demonstrate during the hearing that the IEBC failed to observe constitutional principles of rule of law, democracy, good governance, participation of people, inclusiveness, equality, human rights, integrity, transparency and accountability.

“Concerns over the electoral process started when the procurement for voter materials were marred with fraud. This was expounded by the discrepancies in the voter registration, voting process and tallying of votes which all point to anomalies which can only be cured by the Supreme Court,” said Odinga.

He has named the IEBC, the commission’s chairman Issack Hassan, Uhuru Kenyatta and William Ruto as respondents to the petition.