The hearing of a second petition challenging President Uhuru Kenyatta’s on October 26 re-election started on a high note as the two applicants described their case as a petition by Kenyans for Kenyans.
Through lawyer Julie Soweto, Mr Njonjo Mue and Khelef Khalifa told the court that they represent the face of Kenya with one of them being a Muslim and the other a Christian.
Whereas Mr Khalifa is a man of modest education background, Mr Mue is an advocate of the High Court and boasts of Oxford training.
Mr Mue, Ms Soweto added, comes from Thika, Kiambu County, while Mr Khalifa hails from the Coast.
She said that both of them have a passion for human rights and defending the constitution. Ms Soweto added that the case was about young lawyers who stand for a new Kenya and those who stand for the old one.
The lawyer told the six judges that the country is looking up to them as “the last barrier before we plunge into an abyss”. She said that the people will also be keen to watch whether they will uphold the rule of law and the constitution or whether they will apologise to Kenyans for having invalidated the August 8 presidential election.
She said that the court should be guided by the fact that the elections shall be free fair and credible and that they shall be conducted by an electoral body that is not partisan.
“We the people are beseeching this court to act in defence of the constitution and the law. The commission does not seem to understand the law and the constitution,” she said, adding that when the court nullified the August 8 poll, the commission was directed to conduct the election in strict compliance with the constitution and the applicable law.
“We will demonstrate that the commission did not do this,” she said.
The lawyer said that the constitution states that the winner of a presidential election must garner 50 per cent plus one votes and 25 per cent in at least 24 counties. She also stated that the election must allow as many participating adults to vote.
“This court must ask itself if such an election conforms itself to the spirit of the constitution. Election must take place in all the 290 constituencies,” she said.
She said that elections were not held in some 3,635 polling stations representing 1,770,475 voters. This, she attributed to violence and intimidation, adding that the information has been captured in various reports by reputable organisations including the Kenya National Commission on Human Rights – a government organisation.
Ms Soweto accused the commission of lacking independence, stating that the “violence” directed at the IEBC was both internal and external.
“This court cannot avoid the reality before its eyes. IEBC is under the control of the third respondent (President Kenyatta). Their pleadings and responses are similar. The chairman was never independent and evidence will show that he worked to please a political leader,” she said.
Ms Soweto said that part of the dysfunction of the IEBC can be seen in court as the vice chairperson of the commission filed an affidavit for herself and on behalf of five other commissioners and excluded the chairman Mr Wafula Chebukati.
The two applicants further accused the commission of committing illegalities by allowing the election to proceed even after the withdrawal of National Super Alliance candidate Raila Odinga.
She also quoted a statement by Mr Chebukati on October 18, 2017 on the status of preparedness of the election stating that it shows the dysfunction at the commission.
The address was made a day after the resignation of Commissioner Roselyn Akombe. She said Mr Chebukati publicly admitted the resignation and the reasons given by Dr Akombe for her resignation.
But Justice Jackton Ojwang’ questioned the veracity of the statement saying whether she can vouch for the statement. To which Ms Soweto said the statement has been admitted by the Chairman.
President Kenyatta’s lawyer Ahmednasir Abdullahi also objected to the reference of the statement, saying Dr Akombe has not sworn a statement in court- to say that this is her statement.
During the hearing on Wednesday morning, applicant Caleb Wamaya accused the bench of abusing his rights by refusing to enjoin him in the case.
"I am going home disappointed yet I knew this was my last resort. It is unfair, it’s not right … I have been discriminated [against]," he said.
While on Tuesday night Mr Edward Kings got a calmer response for the same claims, the judges appeared not to tolerate the same issue on Wednesday.
Chief Justice David Maraga simply asked him to eat humble pie and seek an audience with his area Member of Parliament to grant the court more time to hear such time-sensitive petitions.
"If you come here and tell us we are abusing your right ... Check your language! We have dismissed your application," said Mr Maraga.
On Tuesday night, Mr Kings boldly questioned the judges on why he had been locked out of participating in the case – a second time. The first time was in the August 8 poll petition.
He sent the court into a frenzy of laughter when he said his application had the capability of making the judges to dismiss the presidential election petitions within 15 minutes.
CJ Maraga calmly explained why they would not allow his petition. "We have heard you. You are one of the 19 million voters. If we need to allow each of them here, we will need at least two years to finish this," said the Chief Justice.