By Wahome Thuku
Nairobi, Kenya: The Supreme Court was cautioned against throwing the country into a constitutional crisis when deciding Presidential election petitions.
The Independent Electoral and Boundaries Commission (IEBC) asked the six Supreme Court judges to consider the feasibility of their declarations when determining the petitions, one of them filed by Prime Minister Raila Odinga.
“In as much as you must work without fear or favour you must fear one thing, causing a constitutional crisis,” said IEBC lawyer Mohamed Nyaoga.
“This court will not want to go down in history as one that precipitated a constitutional crisis. You must make your decision with caution and proceed only as the petitioners have invited you.”
Making submissions yesterday, Nyaoga who is one in the pool of IEBC lawyers described the allegations by the petitioners as speculative and perceptive requiring rational, consistent and credible evidence to the satisfaction of the court.
The petitioner (Raila) is seeking a fresh election. The declarations made by the court must be effective, practical and enforceable. If the court holds there were flaws in compiling the register and the IEBC acts were fraudulent, then we must go to new election with a new register. If the IEBC is tainted we can’t go to election with it. Can you have new IEBC and hold fresh elections in two months?”
Nyaoga said the allegations must be examined with extra ordinary care and exercise of due proportionality. The evidence must be weighed meticulously,” he told the judges.
He said a body such as the IEBC exercising a constitutional and statutory function in good faith cannot be demonised as the petitioner had done.
Nyaoga said the reference to the aftermath of the contested 2007 elections by the petitioner was to try and bring to the fore the historical perceptions, which the court should not rely on. He told the court that the selection of electoral areas presented by petitioner was focused on regions away from his strongholds.
He said in a situation where the petitioner had made allegations that are criminal in nature the court must apply the standards, which is just close to proof beyond reasonable doubt.
“If you are in doubt of the evidence then it means you are not satisfied,” he added.
The commission maintained it executed their mandate in good faith and had supplied all its material to the court.
Nyaoga asked the court to interpret the constitution in a holistic manner and not in a narrow and partisan way. He submitted that the evidence presented in court was not sufficient to nullify the election and take Kenyans to fresh polls.
“As you retire ask yourself from the bit and pieces, unsupported conclusions of corruption, stealing and robbery, conspiracy, have you been given any evidence to support those allegations? The answer is no.
Nyaoga said the petitioners had not proved that any irregularities in the elections could have affected the results of elections.
