As the deadline for challenging President Uhuru Kenyatta’s win in the repeat presidential election draws near, fresh issues that could form the basis of a petition have emerged.
Unlike in the August 8 petition which nullified Uhuru’s win, a number of key disputes that did not form part of the successful petition by National Super Alliance (NASA) have been brought to the table and are likely to shift the legal discourse in upholding or cancelling the October 26 repeat poll if a petition is filed.
Top on the table in the possibilities will be to determine the meaning of fresh presidential election as ordered by the Supreme Court, and whether the Independent Electoral and Boundaries Commission (IEBC) should have started by nomination of candidates before gazetting the names.
The second issue likely to form the legal battle is the effect of NASA candidates Raila Odinga and Kalonzo Musyoka’s withdrawal from the race. Questions will arise on whether IEBC was justified in including their names on the ballot despite the withdrawal and if the election should have been postponed.
This is likely to raise the issue as to whether Raila formally withdrew from the race as required by the law.
Another issue likely to be contested will revolve around the 25 constituencies which did not participate in the poll, and whether IEBC lawfully declared the results without conducting elections in those constituencies.
Lawyer James Mwamu told Sunday Standard that the issue of what happened prior to and after the October 26 election is likely to be raised.
Former IEBC commissioner Roselyne Akombe resigned eight days before the poll. In her statement, she pointed out that the polls as planned could not meet the basic expectations, adding that IEBC staff were getting last-minute instructions on changes in technology and transmission of results.
IEBC Chairman Wafula Chebukati also said in a statement that he could not guarantee the credibility of the October 26 repeat presidential election.
Mwamu added that one is likely to raise the issue over whether the election was conducted in accordance with the Constitution and point out incidents such as the police using excessive force or intimidation, including the amendment of the election law few days to the poll.
“The High Court judgment by Justice George Odunga on the Returning Officers and the subsequent suspension of his decision by Court of Appeal will feature if a petition is filed,” he added.
Three of the issues were raised in various constitutional petitions at the High Court prior to the October 26 elections, but were dismissed on grounds that the High Court lacked jurisdiction to determine questions relating to presidential elections.
Question on the meaning of fresh election was raised by former Kilome MP Harun Mwau who argued that it was illegal and unconstitutional for the commission to proceed with the elections without conducting nominations.
He said that based on the Supreme Court decision and the High Court clarification on what constitutes a fresh presidential election, the whole presidential election on August 8 had no legal effect and the only thing was for IEBC to start the process afresh.
“It is only after nomination that a candidate qualifies to participate in a presidential election. What the IEBC did by gazetting the candidates was illegal, which makes the October 26 election unconstitutional, null and void,” he said in the petition. Mr Mwau’s line of argument could find its way to the Supreme Court given that the High Court did not pronounce itself on the correct interpretation of fresh election if the petition against Uhuru’s win is challenged.
The effect of Raila and Kalonzo’s withdrawal was brought up by activist Okiya Omtatah who wanted the election stopped and a fresh one called within 90 days. His petition was also dismissed by the High Court on the grounds of jurisdiction.
The activist has, however, filed another petition at the Supreme Court seeking similar orders which is scheduled for hearing on November 10.
The main issues for determination will be whether Chebukati committed electoral illegalities by announcing results attributed to Raila when he had publicly and lawfully pulled out of the race.
The Supreme Court will have to determine whether NASA’s decision to boycott the polls meant that IEBC had to start the exercise afresh by calling for nomination of candidates should a petition challenging validity of the October 26 polls be filed.
The final question for determination would be whether IEBC violated the Constitution without results from all the 290 constituencies. The Constitution says that in a presidential election, the commission must conduct the exercise in all the 290 constituencies.
There have been unconfirmed reports that three NGos are working closely with an observer mission, Kura Yangu Sauti Yangu, to put final touches to a petition before it is filed. These reports have, however, been officially denied by KHRC Executive Director George Kegoro. The issue was validity of the elections was first raised by Pokot South MP David Pkosing through a constitutional petition at the High Court but it was also dismissed for lack of jurisdiction.
The MP has already moved to the Supreme Court to press for the election to be declared valid.
Pkosing’s argument is that it was NASA that prevented IEBC from carrying out elections in Kisumu, Siaya, Migori and Homa Bay, and that the commission cannot be blamed for not meeting the constitutional requirement to have presidential elections held in all 290 constituencies.