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Hidden cards in Supreme Court poll battle

Saturday November 11 2017

Supreme Court judges in this picture taken on

Supreme Court judges in this picture taken on September 9, 2017. The judges will hear petitions challenging President Uhuru Kenyatta's win in the October 26 repeat election. PHOTO | KANYIRI WAHITO | NATION MEDIA GROUP 

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Lawyers for parties involved in the presidential petition at the Supreme Court have been scrutinising the documents for the hidden cards in the detailed filings even as some legal teams prepare to hand in their submissions ahead of today’s 5 pm deadline.

This came as it emerged that some of seemingly innocuous points in the petitions could end up playing a pivotal role in the seven top judges’ determination.

The impact of the violent demonstrations in some parts of the country in the run-up to the October 26 repeat presidential election and on voting day could be key to the petition lodged in the Supreme Court by civil society activists Njonjo Mue and Khelef Khalifa against the election of President Uhuru Kenyatta.


This is part of the grounds on the conduct of the election that the petitioners allege undermined its credibility.

And, unlike in the petition that followed the August 8 election when a lot of focus was on the authenticity of the results declaration forms – 34A (from each polling centre) and 34B (from each constituency), this time a different document will also be in the spotlight. Form 32A, the statutory document a registered voter who is not able to be identified by use of biometrics is required to fill, is likely to be at the centre of arguments on voter turnout.

This will be tied to the Kenya Integrated Election Management System used by the Independent Electoral and Boundaries Commission (IEBC).

In their filings, the petitioners claim IEBC falsified the number of voters who turned out but could not be verified biometrically.

“In the audit conducted by KPMG of the Voter Register only about 5,000 voters were classified as having been registered without biometric records. In the fresh election the 2nd Respondent (IEBC) has claimed that there were about 1.6 million voters identified without biometrics. This is a huge anomaly in comparison with the KPMG audit and points to the existence of fraud,” Mr Mue and Mr Khalifa state in their petition.


As a result, one of the reliefs the petitioners are asking is that the Supreme Court issues “A specific order for scrutiny of all the Forms 32A and the polling day diaries prepared by the Returning Officers.”

If granted, IEBC will be required to produce the Forms 32As duly filled by voters who could not be identified biometrically.

Today is the last day for parties to file their responses to the petitions. Chief Justice David Maraga on Wednesday directed the parties to file their responses by 5 pm while the petitioners have until 5 pm on Monday to file and serve their written submissions.

Any party wishing to join any of the cases has been directed to file and serve their applications and written submissions by midday tomorrow. Their submissions will be limited to five pages.

With regard to violence, the petitioners will be asking the Supreme Court to make a finding that there was widespread violence and intimidation of voters, which puts the integrity and credibility of the repeat election in serious doubt.

The petitioners accuse police of brutalising residents in areas perceived to be opposition strongholds before and during the repeat election on October 26.


“This use of excessive and brute force by the police in strongholds of the 4th Respondent (NASA) was intended to, and had the effect of provoking the voters in those regions to resent voting in the fresh presidential election. It was intended to, and had the impact of, making the voters to keep off polling,” they state in their petition.

The allegation is supported by affidavits sworn by witnesses from Kisumu, Mombasa and Bungoma. In the affidavits, the witnesses allege that the government deployed heavy security personnel in the areas to intimidate locals.

And in areas where residents did not want to participate in the poll and protested, the police brutalised them, leading to deaths.

Mr Edwin Aomo from Kisumu, for instance, states that he recorded the events in Kisumu Central Constituency, especially in Otonglo, Kibuye and Kondele areas, where there was widespread violence as the police brutalised protesters.

Another witness, Ms Perpetua Adar, the coordinator at Kenyans for Peace with Truth and Justice, refers to the preliminary report by Elections Observation Group (Elog) which noted that the elections were characterised by violence that led to deaths in Nairobi, Busia, Migori, Kisumu and Athi River. The overall picture, she said, was that the police clashed with protesters on Election Day.


Owing to the compromised security situation, Elog had stated in their preliminary report that they could not deploy observers in Busia, Bungoma, Vihiga, Kakamega, Kisumu, Migori, Homa Bay, Siaya, Nyamira and Kisii counties. According to Elog, in 2.9 per cent constituency tallying centres observed, the tallying process was postponed, disrupted or halted at some point.

The petitioners further argue that the intense violence by rioters and security officers in Kibra constituency in Nairobi saw two polling centres, Sarang’ombe and Olympic Educational Centre, relocated.

Mr Mue states that the relocation was made without notice as voting was ongoing, making it more difficult for voters to either know the new polling location and also access the polling centres to cast their votes.

He said the move disenfranchised about 6,744 as only two voters managed to vote.
Nasa, in its response, has stated that it “supports the petition in toto save for the specific and particular allegations made against the 4th respondent, its principals or agents.”

In particular, with regard to the alleged violence, Nasa corroborates the petitioners allegation of widespread violence instigated by the police “in various counties among others Kisumu, Homabay, Migori, Siaya and Vihiga.”


According to the opposition, whose candidate Raila Odinga and running mate Kalonzo Musyoka pulled out of the race, the deployment of police officers resulted in “intimidation and rendered the environment volatile; marred with tension and widespread intimidation of its voters; principals; affiliated party members (and) supporters” and blames President Kenyatta of instigating the same.

The petition also accuses the Jubilee administration through acting Cabinet Secretary for Interior Fred Matiang’i of misusing his position to interfere with judicial determination of cases by gazetting public holidays, yet there were cases set for hearing.

The petitioners have also sought for a scrutiny of Forms 34A, 34B and 34C.

Besides the petition by Mr Mue and Mr Khalifa, there are two other petitions currently before the Supreme Court. The one by former Kilome MP Harun Mwau seeks to have the October 26 repeat election declared a nullity since IEBC did not conduct fresh nominations.

The third petition is by the Institute for Democratic Governance (IDG) and unlike the first two, the petition seeks to have Nasa leaders Mr Odinga, Mr Musyoka, Mr Musalia Mudavadi, Mr Moses Wetang’ula and Mr James Orengo found guilty of contempt and be declared unfit to hold office.


A cross petition by IDG accuses Nasa leaders of a “nationwide campaign” aimed at interfering with and blocking IEBC from holding the fresh election.

The organisation wants the court to issue a declaration that the Nasa leaders are liable for the loss of lives and damage to property arising from the acts of violence and intimidation during the election period.

IDG says that Nasa principals engaged in conduct that can only be termed as “illegal, unlawful and reckless by publicly expressing their intention to undermine, derail and sabotage the October 26 poll.”

“The Respondents publicly incited their supporters in their strongholds and in the whole country at large to boycott and interfere with the said elections with the intention that they would make it impossible for the commission to discharge its mandate, and for Kenyans to participate in the fresh election thereby disenfranchising them,” IDG states through lawyer Kioko Kilukumi.

Other grounds in the petitions by Mr Mue, Mr Khalifa and Mr Mwau are that IEBC took sides ahead of the election by failing to call off the repeat election after the withdrawal of Mr Odinga and Mr Musyoka.

“The respondents’ (IEBC and Mr Wafula Chebukati) action to disregard the withdrawal or abandonment of candidature of 4th respondent presidential candidate disregarded the unique and special constitutional construct and place of political parties in Kenya’s democracy,” the petitioners aver.

The petitioners argue that going ahead with the poll deprived Nasa of an opportunity to replace their candidate to face off with other candidates.

They have also argued that the omission of Mr Cyrus Jirongo from the gazette notice and subsequent inclusion of his name in the ballot paper manifestly offended the law.

Ahead of the start of the hearings, the parties and their lawyers have been holed up in meetings to prepare their responses and written submissions.

Leader of Majority in the Senate Kipchumba Murkomen who is a member of President Kenyatta’s backroom legal team said they are ready to defend the re-election of the Jubilee candidate.

“Our lawyers are prepared to defend the case in court,” said Mr Murkomen.

Meanwhile, Nasa legal team was meeting at Okoa Kenya secretariat in Lavington on Saturday to put finishing touches to their responses to the petitions as well as written submissions.

Mr Chebukati declared Mr Kenyatta duly elected President by garnering 7.5 million