Issues Supreme Court will determine in poll petitions

Monday December 11 2017

Supreme Court judges

Kenya's Supreme Court judges. Judges can’t promote democracy on their own. PHOTO | FILE | NATION MEDIA GROUP 

By SAM KIPLAGAT
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The Supreme Court will today give the full judgment dismissing two election petitions filed to challenge the outcome of the October 26 repeat presidential poll.

The judges had promised to give their reasons for dismissing the petitions filed by Harun Mwau and Njonjo Mue together with Khelef Khalifa in 21 days.

They will deliver their full decision from 2pm.

LAWYERS

The petitioners, through lawyer Julie Soweto, had urged the six judges not to fear nullifying the poll for the second time, saying by sending Kenyans back to the poll, they would be upholding the rule of law and constitutionalism.

According to the lawyer, by validating an “illegal election” the court will be dividing Kenyans more, if they are not, already.

But President Kenyatta’s lawyer Fred Ngatia urged the court to dismiss the petition stating that there will be lack of a constitutional order by invalidating the poll outcome.

He urged Chief Justice David Maraga, DCJ Philomena Mwilu, Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola to look at the “common good of the nation”.

Among the issues that had been raised in the petitions is whether the voter turn-out affected the outcome of the presidential poll.

CANDIDATES

The petitioners have argued that the voter turn-out was so low that it cannot be said that those who came out to cast their votes represented the whole country.

Ms Soweto also argued that the failure to hold elections in some 3,635 polling stations— with 1,770,475 voters— was fatal.

But the Independent Electoral and Boundaries Commission and President Kenyatta said to vote is a choice and those who turned out to cast their votes cannot be punished because others declined to express their will.

Another issue the judges will be looking at is who was eligible to contest in the repeat poll on October 26.

The petitioners have argued that the move by Mr Raila Odinga to abandon the race meant that the poll was voided.

RAILA PULL-OUT

They have also questioned the inclusion of Cyrus Jirongo’s name at the last minute.

Mr Ngatia and IEBC’s Kamau Karori argued that the commission made all its decisions guided by the law and the court.

Mr Karori said the move to include other candidates in the race was made by the High Court and the late inclusion of Jirongo was also necessitated by a court order.

Mr Wambua Kilonzo for the commission said the abandonment of Mr Odinga was inconsequential because he did not sign form 34A.

He said the entry by a person as a candidate is a highly regulated process, so is the exit.

Mr Mwau raised five issues for determination— including whether the IEBC was required to conduct fresh nominations before the repeat poll on October 26.

NOMINATIONS

The former MP also wanted the court to determine what steps were required to be undertaken ahead of the repeat poll, if at all.

The court will also confirm whether the nominations conducted prior to August 8 presidential election, which was quashed, still stood, and if so, when did another electoral cycle commence?.

The court will also determine the criteria for qualifying candidates to participate in a fresh election, and whether IEBC and its chairman Wafula Chebukati are guilty of disobeying the Supreme Court Order to conduct the fresh election strictly in accordance with the Constitution and the applicable laws.

Mr Mwau had accused the commission of failing to adhere to the directives of the court.

He maintained that the repeat election was conducted badly and failed to meet the constitutional threshold.

PETITIONERS

In the petition by Mr Njue and Khalifa, nine issues arose— including what is the locus standi of the petitioners, and whether the ‘persons’ who can sue in terms of Article 140(1) of the Constitution.

Mr Ahmednasir Abdullahi argued that the petitioners cannot complain over an exercise they were not party to, adding that the petition was not a public interest litigation as alleged, but a plan to attract donor funding.

The judges will also have to determine whether the repeat election met the constitutional threshold of a free and fair election under Article 81 of the Constitution, and the legal consequences of not holding a presidential election in each constituency under Article 138(2) of the constitution.

“Having carefully considered the above issues, the specific prayers in each petition, as well as the Constitution and the applicable laws, the court has unanimously determined that the petitions are not merited, and the final Orders pursuant to Article 140(2) of the Constitution, as read with Rule 22(c)(iii) of the Supreme Court (Presidential Election Petition) Rules, 2017 are as follows,” Chief Justice Maraga said.