The Supreme Court will on Wednesday decide on the question Kenyans have been asking: Will there be a presidential election tomorrow?
Although the Independent Electoral and Boundaries Commission (IEBC) has concluded arrangements for the repeat vote, multiple cases filed in different courts have fueled uncertainty, and the latest petition lodged on Tuesday offers an opportunity for the seven-judge bench led by Chief Justice David Maraga to give clarity on the eve of the poll.
The Supreme Court will today hear the petition seeking to block the presidential election filed by three petitioners who argue the IEBC is unprepared and that the election cannot be held because the National Super Alliance (NASA) candidates have withdrawn.
International Commission of Jurists Executive Director Samwel Mohochi, Muslim for Human Rights (Muhuri) and Nahashon Kamau want the court to push the election to a later date.
On Tuesday, the High Court dismissed an application seeking the formation of a caretaker government and another one to compel NASA presidential candidate Raila Odinga and his running mate Kalonzo Musyoka, who have withdrawn their joint candidature, to get back into the contest.
On the eve of the controversial presidential vote, which President Uhuru Kenyatta has insisted must go on as Raila insists his supporters will not participate, Kenyans will be keenly following the Supreme Court proceedings, which will either give the green light for the poll to go on or postpone it.
It will be the climax of multiple court battles around the repeat presidential election that has seen the warring sides shift positions depending on the interests at play.
Yesterday, IEBC Chairman Wafula Chebukati was in meetings with various groups at Bomas of Kenya, the National Tallying Centre. The last batch of ballot papers for 14 counties were expected last evening.
Despite today being a public holiday, Mr Maraga permitted presiding judges of the Constitutional and Judicial Review Division with pending matters related to tomorrow's election that they had scheduled to dispose of today to hold court sessions.
This signalled the Judiciary's push to give direction on the contentious election, with Maraga and his fellow judges today hearing the case filed by lawyer Harun Ndubi on behalf of the three petitioners.
After bitter feuds between Jubilee Party and NASA, with the Opposition staging street protests, it is back to the Supreme Court, which ordered the repeat poll after it nullified President Uhuru Kenyatta's victory on September 1 following a successful petition by Raila against the August 8 presidential election results. The court ordered a repeat election within 60 days.
The IEBC had initially scheduled the election date for October 17 but postponed it to October 26.
The court papers filed yesterday state that all Kenyans should first have confidence in IEBC before it conducts any elections. The three argue that at present, the country is divided.
“That in as much as the second respondent might technically, logistically and operationally be prepared for the fresh elections in terms of logistics and operations, the political environment and confidence by Kenyans are key,” the papers read.
“There are serious concerns about the respondents' (IEBC and Chairman Wafula Chebukati) preparedness to conduct free and fair elections. The content of the following documents from the respondents indicate the existence of an imminent threat to their ability to conduct a free and fair presidential election.”
The three backed their argument on IEBC's unpreparedness with the commission's internal memos and former commissioner Rosleyn Akombe’s statements on why she resigned.
They claim she was first threatened by a colleague during a plenary meeting.
The court papers also read that Ms Akombe’s demands for changes before a fresh election could be conducted landed on deaf ears.
“Her resignation has been occasioned by lack of independence among the commissioners,” read the court papers.
They also supported Raila’s argument that his withdrawal meant that fresh nominations should be conducted before a new election is held.
The court papers also said IEBC had not made any reforms as demanded by the NASA leader. But the commission maintains that Raila never followed the law as he did not sign Form 24A alongside his withdrawal letter and so it went ahead to include him on the ballot.
The three petitioners argue: “The petitioners aver that the withdrawal by the ODM candidate Rt Honourable Raila Odinga and his running mate Stephen Kalonzo Musyoka on October 10, 2017, triggered the vacation of the fresh Presidential Election on October 26, 2017, by operation of law.”
The petitioners are also of the view that IEBC's failure to include Cyrus Jirongo in the election amounts to discrimination.
However, this stand contradicts Raila’s position in the case filed in the Court of Appeal on Monday, in which he argues that the race should be between him and Uhuru.
Raila initially supported the inclusion of the other candidates but he rescinded his stand after High Court judge John Mativo ruled in favour of Thirdway Alliance candidate Ekuru Aukot.
They say Raila cannot be ignored as he has six million voters behind him.
“The dilemma of risking disenfranchising more than six million voters of a leading candidate that has withdrawn from the race and consequential crisis,” the court papers read.
Another case was filed in the High Court by former Kilome MP Harun Mwau, who cited similar grounds as the basis for stopping the election.
Jubilee filed a contempt of court case against Raila in the Supreme Court for boycotting the election.