By Wahome Thuku
NAIROBI; KENYA: President-elect Uhuru Kenyatta discredited the evidence presented in a petition by his main challenger in the March 4 elections, Mr Raila Odinga, saying his coalition’s win in other elective seats reflected his lead.
Uhuru in particular insisted that the Supreme Court must send a message that a political contest cannot be won in court but in elections. “There is greater good in letting the will of the six million voters (who voted for him) prevail against that of one person,’’ he argued.
He asked: “Would it be right for this court to impeach the elections, including five others (done on same day) yet Kenyans were allowed to register in millions?”
“We must be hard on those who come up with conspiracy theories because they destroy the emerging institutions,’’ he added.
Uhuru also insisted the court should not make itself the arena for election losers to try and reclaim their loses. “There is a great need for uniformity particularly between evolving democracies in presidential contests. Presidential contests should not be converted into trying to win a political office through courts,” he argued.
He added: “They (politicians) should be told throughout Africa that the contest must be won through elections,” adding: “Your (politicians) business is to offer yourself for elections. It is the business of IEBC to conduct the election and the business of the electorate to decide the victor,” Ngatia added.
Manual tallying
Uhuru’s lawyer rejected assertions that the IEBC abandoned electronic transmission deliberately; pointing out that in his affidavit, Raila’s chief agent, Prof Larry Gumbe, conceded various political party agents met IEBC commissioners on March 5 at Bomas after the electronic systems failed. “They consulted with all the agents and agreed that the manual tallying system would be used and would commence the next year,” Uhuru added to reinforce his argument the PM’s side was involved in the decision he is now contesting as petitioner.
As the session ended at 9:30pm Chief Justice Willy Mutunga asked the parties in court to pick the results of the fresh tallying he ordered from the court this morning at 8am. He announced he would give them an hour to respond to the figures. After this the country would now await for the court’s verdict between today and tomorrow.
The CJ made the announcement after the final submissions by the counsel for both sides.
At on Thursday’s final session of Raila’s petition, logged in the court’s registry as ‘Petition Number Five’, in the Supreme Court, the Independent Electoral and Boundaries Commission defended Uhuru’s win and denied there were any irregularities or that it manipulated votes in his favour.
Fresh elections
Uhuru argued the dispute in court was that the entire electoral process was flawed. He said the relief sought by Raila was “very expansive”, including invalidating an entire election without participation of those elected in five other positions. “The prayers sought are very expansive seeking a procurement process be declared to have been in breach of the law, the elections declared to be invalid and various other requests for fresh elections for position of president,” he said.
Also responding to Raila’s claims that his votes, among others, were schemed off and given Uhuru and that IEBC maintained an illegal register, was Uhuru’s designated deputy Mr William Ruto.
Uhuru, who would be sworn in on April 9 if the judges tomorrow uphold his victory as declared on March 9, explained his Jubilee Coalition secured majority parliamentary seats.
He also argued through his lawyer Fred Ngatia that independent observers had praised the conduct of the polls and that the voters’ roll was credible as proof he won the elections fairly.
IEBC lawyers discredited evidence by Raila, saying he did not prove irregularities and denied allegations that it registered more voters illegally after the December 18, 2012 dateline when the Biometric Voter Registration (BVR) closed.
“In plain terms there was a big margin of 832,887 votes between them…in National Assembly Jubilee won 157 seats and CORD got 128 seats,” he said. Jubilee Coalition, Ngatia explained, secured157 parliamentary seats against CORD’s 128 seats. “All that reflects the healthy competition which characterised the entire election,” he said.
Ruto’s lawyer Katwa Kigen said in the bulk of the documents the petitioners had indicated that manual register was available and was used. “They have in no way shown there was no register and the existence of the register is to be treated as a fact and must be treated as good reference to show if voters were given right to vote,’’ Kigen argued. He added: “The administrative structure should not deny one a right to vote which is provided by the constitution,”
Lawyer Paul Nyamodi rebutted the disparities cited by the petitioners, saying the revised figures were as a result of processing of the voters’ roll. He explained that as a safeguard against losing the data in the electronic form, IEBC captured it in ‘Green Book, which was the primary registration data entry point.
He said the commission conducted “100 per cent clean up” and audit of the register using the Green Book before the voting, which saw a change in the number of registered voters.
On allegations that more voters’ were irregularly added to the voters’ roll after close of registration, Uhuru buttressed the electoral commission’s explanation that people with disability constituted the additional special register.
Sensational and unfounded
He said a special group of 36, 236 voters, who had no biometric features, were the reason for the differences in the voters’ register that Raila claimed was a pointer to illegal voters. “We anticipated the submission that was made on Thursday that nobody knows this register in the affidavit of Winnie Nguchu,” Ngatia said.
Ngatia said claims that ‘special’ voters were concentrated in Rift Valley, Bomet, Meru and Kiambu were sensational and unfounded. “This register is before you. Likoni constituency, which overwhelmingly voted for our opponent, had 2, 243,” Ngatia said.
He said the constitution required the voter registration system to be simple, transparent and take into account the special needs of persons with disability.
BVR, he explained to the court, is a process of capturing fingerprints and the facial impressions. “Those who are able bodied sometimes get to be insensitive and assume others have those body parts,” the senior counsel went on.
Ngatia said the petitioner was involved in the procurement of the BVR. “It should be the other candidates who should be complaining about the BVR and not him. On the procurement of BVR, he was part and parcel of the process.”
Ngatia played footage of KTN news conferences by Raila’s Coalition for Reforms and Democracy at which his officials discredited the electronic registration if there was doubt about its efficacy and demanded the Commission reverts to manual listing. “IEBC wanted to go electronic and our opponents said let us go manual. Now in this court they want electronic,” Ngatia said.
Uhuru’s lawyers argued his client had a lead of 832, 887 votes against his closest challenger Raila and that “difference equates to seven per cent of the votes cast.”
Two months
Uhuru’s lawyer cited numerous reports by accredited observers —both local and regional — which praised the conduct of the elections.
On transmission of votes electronically the regulations stipulate, “shall” and the lawyer argued besides it being mandatory the other interpretation is “futuristic”.
Another IEBC lawyer Mohamed Nyaoga urged the six judges to consider the practicality of their declarations when determining the petitions. “In as much you must work without fear or favour you must fear one thing, causing a constitutional crisis,” Nyaoga said.
“The petitioner (Raila) is seeking a fresh election,” he added then asked: “Can you have new IEBC and hold fresh elections in two months?” “If you are in doubt of the evidence then it means you are not satisfied,” Nyaoga added.
Ruto argued that the law presumes there was more than one register. The “use of “electronically compiled register” shows it is not only one register. “The law contemplates and expects more than one register,” Kigen went on. He said it had not been shown by the petitioners that anyone was registered after deadline of December 18, 2012.
“That allegation was made in passing by the petitioner. That is speculative and is not good to satisfy the court to allow the prayers sought,” Katwa said adding that the allegation of fraud had not been proved.
