Two people went to court on Friday in a bid to block the promulgation of the new Constitution.
Ms Mary 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 is a setback to plans to publish the final results of the referendum in the Kenya Gazette at the end of the 14th day, which would have been on Friday.
This would have set in motion the timetable leading to Friday’s pronouncement of the new Constitution by President Kibaki.
If the dispute court clears for hearing the petition, plans for the promulgation will be put on hold until the case is determined, according to the Constitution of Kenya Review Act, 2008.
Any postponement would be a nightmare for the organisers, who have been working day and night to stage a grand ceremony rivalled only by the Independence Day ceremony in 1963 — complete with invitations to heads of State and other foreign high-profile officials.
The litigants, who did not appear at the filing, want an audit of the electronic tallying system to determine its reliability and a fresh recount of all votes.
The two also want the court to declare the results null and void because of pronouncements made by American ambassador Michael Ranneberger which, they claim, amounted to advance rigging.
The Act says that the petitioner should give notice of the petition to the Attorney-General and the Interim Independent Electoral Commission within seven days after the petition is made. They are also required, within the same period, to deposit Sh2 million with the court as security against costs.
If security is not given, the Act adds, the petition will be dismissed.
The hearing of a petition shall not begin until after the expiry of the seven days after the publication by the Attorney-General of the notice, the review Act says.
The dispute resolution court has the option of dismissing the case after the two parties have presented their pleas.
The court’s regulations and rules indicate that it may dismiss the proceedings at any stage, if it considers that the petition discloses no valid grounds. It may also do so if it is satisfied that the petitioner has “habitually and persistently without any reasonable ground instituted vexatious proceedings before the court.”
The Attorney-General also has the option of going before the court and filing preliminary objections.
All indications on Friday were that the Interim Independent Electoral Commission was set to publish the final result of the referendum.
The electoral commission was required by the law to wait for 14 days before gazetting the results. The electoral commission chief executive officer, Mr James Oswago, told the Saturday Nation that they would “publish the final results as required by law”.
Ms Ariviza and Mr Mondoh are seeking to have the referendum results declared on August 6 nullified.
Ms Ariviza had tried to stop the August 27 promulgation date on grounds that the referendum results were not published in accordance with the law. However, her case challenging the promulgation is set to be heard on Monday before the High Court and not the interim dispute resolution court.
The case filed by the two before the interim dispute resolution court is also seeking an independent audit of the software used in transmitting the results of the referendum.
The two based their case on grounds that the referendum was flawed and marred by irregularities.
Ms Ariviza and Mr Mondoh also accuse the electoral commission of failing to train the polling agents on time and to ensure that the ‘No’ agents were present at the constituencies when ballots were counted.
They claim that the electoral commission and the AG failed to advise the government not to begin the campaign before the civic education was over.
The two offices are also accused of failing to follow government advice that it should not discriminate against the ‘No’ team. The petitioners cite the June 13 grenade attack at a ‘No’ rally as discrimination.
Ms Ariviza claimed that Administration Police helped count votes with polling agents from the ‘Yes’ team and that the electoral commission staff at her polling station were ‘Yes’ proponents.
Her allegations echo those made by NCCK general secretary Peter Karanja and national ‘No’ camp leader David Koech, both of whom called a news conference on the night of August 4 to denounce what they called “irregularities” and “rigged results” at Bomas.
It is unclear, however, whether the NCCK-supported Church Red Card National Referendum Committee is supporting Ms Ariviza’s petition or whether she and Mr Mondoh are acting alone.
There was also use of what she calls State media to influence a vote for ‘Yes’.
According to her, the ‘Yes’ proponents induced voters to support the new law by promising that they would amend the document immediately it was passed.
The votes of the ‘No’ team remained at 2 million for a long time from 7pm on August 4 to August 5 suggesting that there might be something wrong.
Ms Ariviza also mentioned that some polling stations started the voting at 6am without the presence of all agents. However, she doesn’t mention a specific polling station.