The Supreme Court will once again be the theatre where the legal battle over the presidential election standoff between President Uhuru Kenyatta and Opposition leader Raila Odinga plays out.
Thursday, Jubilee Party filed a pre-emptive petition seeking a declaration to uphold Uhuru's election in the October 26 repeat election. Uhuru got 7.4 million votes (98 per cent) in the vote boycotted by Raila, the National Super Alliance (NASA) presidential candidate.
The petition filed by Jubilee's Pokot South MP David Pkosing aims to address the legitimacy concerns raised by Raila by asking the judges to rule that Uhuru was validly elected despite the NASA boycott and the failure to conduct elections in 25 constituencies considered NASA strongholds.
Given the application does not dispute the election results, it would run parallel to the expected presidential election petition challenging Uhuru's re-election, possibly from NASA or civil society groups critical of the repeat vote, which will add to the drama in the court.
Mr Pkosing's petition has opened a fresh legal battle with NASA leaders Raila and his running mate Kalonzo Musyoka, who the MP accuses of masterminding the boycott and making it impossible for the Independent Electoral and Boundaries Commission (IEBC) to conduct elections in Kisumu, Siaya, Migori and Homa Bay counties.
“Their wilful decision to subvert and ensure that fresh elections were not held in some constituencies amounted to treason and they should be punished for the offence. They were obliged to obey the Supreme Court, which ordered the fresh election,” said Pkosing.
He filed the case amid talks of another petition challenging Uhuru's re-election being prepared by some civil society groups and that could be filed before the seven-day deadline expires on Sunday.
According to sources privy to the ongoing preparations for the petition, their main argument is that the repeat presidential election was not done in accordance with the Constitution and election laws after IEBC failed to conduct nominations following Raila’s withdrawal from the race.
The Supreme Court battle will be a continuation of a feud ignited after the judges nullified Uhuru's August 8 win and ordered a repeat. On the eve of the October 26 vote, a petition that had sought to block the poll aborted when the Supreme Court lacked quorum.
In his petition, Pkosing argues that his fear was as a result of the possibility of questioning the validity of Uhuru’s win based on the 25 constituencies that did not participate in the election and the low voter turnout occasioned by NASA’s withdrawal from the race.
His lawyer, Kibe Mungai, argues that Raila and his NASA co-principal’s intentions were to trigger a political crisis to force the formation of another government not envisioned by the supreme law.
It is the reason why the MP wants the Supreme Court to act fast and declare that NASA’s boycott and sabotage of the repeat election was inconsequential and had no bearing on Uhuru's re-election.
He also wants Raila punished for violating the rights of many voters who wanted to exercise their democratic right on October 26, but were prevented from doing so because of fear and threats of violence by his backers.
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“It will be immoral for NASA to claim the elections were not free and fair when their actions constituted real threats to free and fair elections," said Mr Mungai.
"They went against the laws that prohibit political parties from engaging in violence and intimidation."
According to the lawyer, the only legal means through which a constitutional government could be formed was the October 26 election, and that Uhuru, having been declared the winner, should be allowed to assume office without threats from the Opposition.
He accused NASA leaders of coming up with “irreducible minimum” demands a few days before the election in a calculated move aimed at scuttling the repeat election to create a constitutional crisis and get power through illegal means.
He submitted that NASA’s demands before the poll, coupled with the sabotage, boycott and subversion of the people’s will, constituted an attempt to establish a government not recognised by the Constitution and which must be rejected by the Supreme Court.
“It is important for the court to uphold the law and prevent a crisis by ensuring that the legality, legitimacy and validity of Mr Kenyatta’s win is upheld notwithstanding the acts of sabotage, subversion, violence and intimidation by NASA leaders and their supporters that resulted into low voter turnout and no election in 25 constituencies,” argued Mungai.
The MP has 10 issues he wants the Supreme Court to determine, including whether Raila’s action to call his supporters to boycott the ballot amounted to treason and if he should be held accountable through a criminal process.
He further wants the court to determine whether the partially successful boycott of the presidential election could affect the legality and legitimacy of IEBC’s declaration of Uhuru as the winner of the repeat poll.
“We also want the court to determine that IEBC was justified in declaring Mr Kenyatta the winner without results from the constituencies that did not vote and diminished voter turnout given that their total votes would have not affected the final outcome,” said Mungai.
He further wants the court to stop calls by the Opposition for another election within 90 days, arguing that the IEBC had already complied with the Supreme Court to conduct another poll within 60 days.
Pkosing, in his affidavit to support the petition, stated he would suffer prejudice alongside millions of people who participated in the repeat poll and voted for Uhuru should the court fail to validate the election.
“I am convinced that failure to validate Mr Kenyatta’s win will be fatal given that the presidential election has created a political climate for revolutionary political change and assault on the integrity and competence of IEBC based on misinterpretation of facts,” he said.
Meanwhile, former Ethics permanent secretary, John Githongo, has written to Supreme Court judges demanding an explanation of their whereabouts last week, when the hearing of a petition to block the October 26 vote aborted.
In his letter to all Supreme Court judges, including Chief Justice David Maraga, Mr Githongo wants to know why the court could lack a quorum a day to the repeat election.
“There was a lack of quorum at the Supreme Court despite that court being critical to the rule of law in the country,” he said. “The judges owe Kenyans an explanation of their whereabouts."
The Standard has established that the former PS has given the top court until Monday to respond but has not disclosed what his next course of action is if his concern is not addressed.
Justice Maraga informed lawyers that the court would not sit as it lacked quorum, which indirectly cleared the electoral commission to continue with the election.
The law requires that the court should have at least five judges to conduct its business.
Maraga said only he and Justice Isaac Lenaola were available and so the court would not sit.
“Regrettably and with due apology to the parties, this court cannot proceed today,” he said.
According to the CJ, his deputy Justice Philomena Mwilu was absent from court as she was shaken by the shooting of her security guard, he added.
Justice Ibrahim Mohamed was out of the country while Justice Njoki Ndung’u was caught up in a flight delay.
Pkosing had previously sought the High Court's intervention to force Raila and Kalonzo to participate in the repeat presidential poll on grounds that if the two succeeded in influencing their supporters to boycott the poll, then there would be a constitutional crisis.
He had also asked the High Court to declare that the outcome of the presidential election would be valid even if NASA went ahead and made some of the 290 constituencies and 47 counties boycott the vote.
But Justice Chacha Mwita dismissed the petition on grounds that the High Court had no jurisdiction to determine a matter touching on the poll.