The results of the referendum were officially published on Monday, taking the country a legal step closer to a new Constitution.
Publication of the results is required by law and clears the way for President Kibaki to pronounce the constitution into law.
The Independent Interim Electoral Commission went ahead with the publication despite two cases challenging the results.
Last Friday, Ms Mary Ariviza went to the Interim Independent Constitutional Dispute Resolution Court to try and have the results of the referendum, held on August 4, quashed.
And on Tuesday morning, the High Court will rule on whether the case seeking to stop President Kibaki from promulgating the constitution is to proceed.
All matters relating to the review process are supposed to be handled by the dispute resolution court.
The elections team made the final declaration of the referendum results through Kenya Gazette notice No. 10019 dated August 23.
“The proposed new constitution was ratified by over 67 per cent of the total valid votes cast. The document was also supported by at least 25 per cent of the votes cast in all the eight Provinces in Kenya. The results are as follows: For: 6,092,593 Against: 2,795,059,” IIEC Communications and Corporate Affairs manager Tabitha Mutemi said in a statement.
The polls team was required by law to wait for a period of 14 days before declaring the results first published on August 6 as final.
Ms Mutemi explained that the IIEC was not aware of any pending petition challenging the referendum results since it had not been served. She said the only case filed at the IICDRC had been dismissed on Friday.
“The only other case is that challenging the promulgation of the new constitution filed in the High court. However, section 43 of the review Act indicates that any petition has to be filed in the dispute resolution court,” said Ms Mutemi.
The 14-day period given in law was to allow anyone to move to the dispute resolution court which has exclusive jurisdiction on the constitution review process.
Ms Ariviza, an agent for ‘No’, and Mr Okotch Mondoh, went to the Dispute Resolution Court on Friday, the last possible day for challenges to be filed, to stop the August 27 ceremony.
The move was viewed as a setback to plans to publish the final results of the referendum in the Kenya Gazette at the end of the 14th day, which was last Friday.
On Monday, Dr Peter Kagwanja, a consultant for the Office of the President said that it was all systems go after the expiry of the 14 days. He added that for the OP, the country was now operating under the new constitution.
“As far as we are concerned here at the OP, the new constitution kicked off automatically at midnight August 21. We are now just waiting for the official celebration,” he said.
The Attorney General and the IIEC were yet to be served with the notice of the case before the IICDRC and were therefore legally unaware of it.
There have been frantic efforts in government to stop the challenge since Friday. The IIEC had planned to declare the final result on Friday but were forced to wait until midnight since the 14 day period was expiring at midnight.
Proceed to hearing
The petitioners were required by law to serve the respondents within seven days after they had filed their case.
Had the dispute court cleared the petition to proceed to hearing, plans for the promulgation would have had to be put on hold until the case is determined, according to the Constitution of Kenya Review Act, 2008.
Any postponement would present a nightmare for the Government, after a high scale mode of preparation was set in motion to stage a grand ceremony rivalled only by the Independence Day ceremony in 1963 - complete with invitations to Heads of State and other foreign dignitaries.
The litigants, who did not appear at the filing last Friday, want an audit of the electronic tallying system to determine its reliability and a fresh recount of all votes.