Jubilee planned defence even before petition was filed

NAIROBI, KENYA: The Jubilee Alliance set up a legal team to fight a possible presidential election petition as early as January 4, three months to the electoral contest.

This worked to their advantage when the matter was rushed to the Supreme Court just days after the announcement of the contested results on March 9.

The Standard On Saturday has learned that President Uhuru Kenyatta’s team anticipated a legal battle whatever the outcome and had a contingency plan in place.

Correspondence we have seen shows The National Alliance (TNA) legal office sent an email to a senior official on Uhuru’s campaign team on January 2, proposing the hiring of seven lawyers to prepare for any court battle.

Titled ‘Legal Alert 01: Ring-Fencing’, the email reads, in part: “In light of outbursts by CORD alleging… a plot to rig the election in favour of the Jubilee candidate, it is clear CORD is preparing the ground for a dramatic rejection of the results. It is, therefore, proposed that we move with speed and prepare for the inevitable.”

CORD had held several press conferences claiming senior Government officials were conspiring to rig the elections. The claims spooked TNA’s legal minds into setting up a team to deal with the possibility of an election petition.

When CORD and two other groups of petitioners finally filed at the Supreme Court in March, Jubilee was ready for them.

Justifying the hiring of lawyers even before it was clear whether the matter would go to court, the TNA legal team said: “We should… leave nothing to chance and… prepare for any eventuality. The beauty of such an attitude is that by fully expecting anything to happen, nothing will be a surprise and adequate responses are already planned.”

The plan called for “a high-powered legal team (not later than Monday January 14) tasked with initiating or defending a presidential petition, as the case may be”.

On January 5, three days after the proposal was made, Uhuru’s team gave TNA the green light with the remarks ‘Approved, great job’! Seven high profile lawyers with “significant experience in electoral law, constitutional petitions and judicial review” had been suggested in the initial email.

Expunged from records

They included Fred Ngatia, Justice (Rtd) Aaron Ringera, Ken Ogeto, Evans Monari, Onyango Oloo, Katwa Kigen, Tom Macharia and Jasper Mbiuki. Not all the lawyers proposed eventually participated in the petition. We were unable to immediately establish the reasons for this.

The TNA legal team also noted that the strict and tight timelines to file petitions and responses made hiring a legal team in advance essential.

Following the Independent Election and Boundaries Commission (IEBC)’s declaration of Uhuru as President-elect, CORD moved to court to file a petition on the basis of alleged irregularities. Their lawyers filed at the last minute and later tried to introduce a ‘900-page affidavit’ to strengthen their case. This was expunged from court records before the Supreme Court ruled that the process had flaws but was fair. CORD, the judges found, failed to provide sufficient evidence to sustain the petition after satisfactorily replying affidavits from IEBC and the Jubilee candidate.

In delivering the ruling, Chief Justice Willy Mutunga said: “It is the decision (of this court) that the third and fourth respondents (Uhuru and William Ruto) were validly elected.”

CORD’s candidate, former Prime Minister Raila Odinga, conceded the battle was over.