Supreme Court orders fresh votes scrutiny

From left, Judges Njoki Ndung’u, Jackton Ojwang, CJ Willy Mutunga, Philip Tunoi, Mohamed Ibrahim and Smokin Wanjala at Supreme Court on Monday.  [Photo: Standard]

By Wahome Thuku

Nairobi, Kenya: The Supreme Court gave two orders that in effect entail painstaking audit of March 4 Presidential elections through scrutiny of each of the forms received from the 33,400 polling stations nationally.

“That scrutiny shall aim at establishing the number of registered voters, the votes cast and the votes rejected,” the court said in a directive read by Justice Smokin Wanjala. 

Further the court shall scrutinise all the Forms 36 used by the Independent Electoral and Boundaries Commission (IEBC) in aggregating tallies from Forms 34. This would help in establishing the accuracy or inaccuracy of the process and comparing the number of registered voters on Form 34 and those on principal register.

The court read out 22 polling stations in which re-tallying of presidential votes shall be conducted using the Forms 34 and 36.

The Supreme Court also set the ground rules for one of the fiercest battles to determine whether or not the March 4 presidential elections should be invalidated or not.

The bench also decided the actual sittings to determine the petitions that could endorse or nullify the election of President-elect Uhuru Kenyatta would be on Wednesday and Thursday.

The Judges have until Saturday to deliver the ruling on petitions, which have topped national agenda over the past two weeks. 

Live up

The court, presided over by Chief Justice Dr Willy Mutunga in his capacity as the President of the Court, set the terms as it began adjudicating what would be the biggest and most contested case in Kenya’s history.

Mutunga opened by assuring Kenyans the bench would be just and fair to all sides. “We, as Judges are servants of the law, and not the other way round. We have taken and subscribed to the oath of office that we intend to live up to,’’ declared the CJ.

The audit exercise shall be conducted using what IEBC has provided as the principal register in form of an external hard-drive, attached to an affidavit by its chairman Isaack Hassan.

This shall be to establish if votes cast exceeded the number of registered voters in those areas as claimed by Prime Minister Raila Odinga in the petition at the Supreme Court.

The scrutiny shall be conducted today from 8 am at place that was to be communicated to the parties by the Supreme Court Registrar last evening. The results must be filed in the registry by 4pm tomorrow.

This morning

The petitioners in the three consolidated petitions will jointly appoint ten agents as observers in the scrutiny while all the four respondents shall also jointly appoint a similar number. The agents shall all take an oath of secrecy this morning to be administered by the Registrar.

The court issued the directives in the afternoon on its own motion without prompting by any party, after a morning of arguments and sharp disagreements among a dozen high-profile lawyers in the courtroom.

Different parties contested virtually every item in the schedule prepared by the court when they came up, indicating what the judges would have to deal with before determining the petitions.

Though the session was only a pre-trial conference to deal with preliminary issues, the public got a taste of what would be the most grueling battle for three days beginning today.

To guide the lawyers through the session, the court had prepared a draft of items to deal with according to the petition rules. It had framed 12 issues and asked the lawyers to indicate which ones they considered contested and which were uncontested. It had also asked the lawyers to pick the kind of evidence they would rely on, from a list of 19 items, which included minutes of meetings, electronic evidence, video transcripts, electoral documents as well as reports and press statements.

Parties were also to indicate whether they have witnesses to call and to list them. The document also contained all the declarations sought in each of the petitions.

The first issue that lawyers differed on was whether or not the Attorney General could be enjoined in the cases as amicus curiae (friend of the court).

Attorney General Prof Githu Muigai went to the court in person to plead for his enjoinment, arguing he wanted to offer guidance to the court without taking any sides.

The application was opposed by lawyers George Oraro appearing for Raila and Kethi Kilonzo representing petitioner Gladwell Otieno. The court however ruled in favor of the AG and allowed him to join the cases as a friend of the court.

The judges however rejected a similar application by the Law Society of Kenya after an objection by all the other parties.

Three-hour break

The lawyers also differed on the list of issues framed by the court as contested and uncontested with Mr Ahmednassir Abdulahi arguing that those raised by his client, Mr Hassan, had not been captured.

The same claim was made by lawyers Fred Ngatia, representing Uhuru and lawyer Katwa Kigen for Deputy President-elect William Ruto.

The court was prompted to allow the advocates a three-hour break to discuss and agree on the issues they wished the court to deal with in the actual hearing.

Ngatia later told the court that they had narrowed down to six issues to be dealt with by the court.

They however asked for more time to decide whether they would go by what they had agreed on or if each party would file its own.

Lawyers proposed that one of the three petitions be heard alongside the other two but not consolidated since it raised only one specific issue —whether rejected votes should be included in tallying votes cast.

The thrust of the arguments were made later in the day when the combined team of the respondents made a scathing criticism against Raila for allegedly changing the nature of his petition along the way.

They accused him of making new demands in a fresh application he filed on Saturday.

Their lawyers moved the Supreme Court to decide whether a 900-page affidavit filed by Raila’s legal team had been taken to court according to the rules and whether the issues he raised in it should be responded to.

The lawyers spent the better part of the afternoon demonstrating to the court how the PM had introduced new matters, which he had not raised in the original petition.

But Oraro dismissed the complaints as misplaced, saying the respondents were avoiding the issues raised in the petition. He argued his client was only responding to issues raised by IEBC in their response and he had properly made his application in court.

All parties

The court also heard an application by Raila demanding logs of servers and other electronic gadgets used in the entire election.

The court ruled that the three petitions should be consolidated for purposes of speedy dispensation of the cases. The petition by Raila would however be the main case in whose file all the proceedings would be recorded.

The IEBC was directed to produce the principle register and even a special one, which contains names of those whose biometric details had not been captured by the BVR kits.

“You must supply all the documents you considered to be principle register and serve them on all parties,” ordered Lady Justice Njoki Ndung’u.

The court will sit for seven hours and 15 minutes a day for two days. The petitioners and the respondents will share that time.

Respondents would get one hour each and the AG will have 30 minutes.

“How you manage the allocated time is up to you to decide if it’s in submissions or you will produce your witnesses,” directed Justice Ndung’u.