Poll petitions: Issues supreme judges will decide on Monday

Friday November 17 2017

Supreme Court judges

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

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Supreme Court judges have retreated to write their decisions on the consolidated petitions challenging President Kenyatta re-election on October 26.

They are expected to deliver their judgment on Monday, November 20.


Among the issues the judges will be grappling with is whether the voter turn-out affected the outcome of the repeat poll.

During the hearing, the petitioners argued that the turn-out was so low that it cannot be said that those who came out to cast their votes represented the 19 million voters.

The respondents— including the Independent Electoral and Boundaries Commission (IEBC) and President Uhuru Kenyatta— argued that to vote is a choice and those who turned out to cast their ballots cannot be punished because others refused to come out and to express their choice.

The petitioners, through lawyer Julie Soweto, have argued that the failure to hold elections in some 3,635 polling stations representing with 1,770,475 voters was fatal.

This, she attributed to violence and intimidation by the government.

She said the intimidation campaign was captured in various reports by reputable organization, including the Kenya National Commission on Human Rights.


Ms Soweto also questioned the impartiality of the Commission and its Chairman Wafula Chebukati.

She said the commission lacked independence stating that the “violence” externally and internally affected the its work.

“This court cannot avoid the reality before its eyes. IEBC is under the control of the third respondent (President Kenyatta),” she said.

“Their pleadings and responses are similar. The chairman was never independent and evidence will show that he worked to please political leader.”

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

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


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

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

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

Another issue to be determined by the court is whether IEBC made a mistake by failing to subject candidates to fresh nominations, after the Supreme Court nullified the August 8 poll.

But IEBC and President Kenyatta have argued that the court only invalidated the results of the poll outcome and not other processes.