Election 2017: Second presidential petition gets lawyers burning midnight oil

Supreme Court judges during the hearing of presidential petition.

Caledonia along State House road, IKM Centre along Ngong Road and Mirage Plaza in Westlands, Nairobi, are the nerve centres for the legal teams working overnight on behalf of parties in the presidential election petition.

Lawyers for President Kenyatta, the electoral agency and Opposition leader Raila Odinga have set up bases there to put together their responses to two petitions challenging the October 26 presidential election to beat Sunday's Supreme Court deadline.

The lawyers, most of them retained from the teams that battled it out during the August 8 presidential election petition, have split tasks with each assigned a specific area of the petition for speed and in-depth research in readiness for the battle of wits with public hearings set to begin on Tuesday.

Assigned roles

Caledonia is a key operational base for President Kenyatta’s team of over 10 lawyers although other activities are also carried out at the offices of the individual lawyers on a need-to basis.

The Jubilee Party team is still being led by senior lawyer Fred Ngatia. Also in the team are lawyers Ahmednassir Abdullahi, Ken Ogetto, Kiragu Kimani, Kipchumba Murkomen, Melissa Ng’ania and Tom Macharia.

A source in the ruling coalition told The Standard that were are yet to decide which lawyers will take up the responsibility of dealing with the three cases.

“We are a team and it does not matter which law firm you come from. Each lawyer has been assigned different roles. We have not yet decided which law firm will take what case,” the source said.

The IKM Centre, the offices for the law firm Iseme, Kamau and Maema Advocates, is central to preparations for the defence of the Independent Electoral and Boundaries Commission (IEBC).

After IEBC dropped senior lawyers Paul Muite and Prof PLO Lumumba, the commission nominated Waweru Gatonye to lead a team of eight lawyers. Those in the legal team are Kamau Karori, Kimani Muhoro, Mahat Somane, Fredrick Sisule, Erick Gumbo, Wambua Kilonzo and Lucy Kambuni.  

NASA is mainly represented by Murumba Awele advocates of Mirage Plaza.

Siaya Senator James Orengo will lead the team and he will be assisted by Jackson Awele, Otiende Amollo, Pheroze Nowrojee, Paul Mwangi, Peter Kaluma and Ben Sihanya.

 “We are the same team that participated in the August 8 election petition,” said Mr Awele.

Awele said the NASA team had more than 10 lawyers who doubled up as legal researchers. Asked if they had prepared enough for a second win, he stated that they were not the petitioners and were only concentrating on their responses.

“We have been sued by the petitioners. Our participation and expectations shall accordingly be limited to the issues raised against us and not more. We of course wish the petitioners well in their suit and will respect the decision of the court,” he said.

Third round

The three cases present another opportunity for a spectacular rematch between senior lawyers who represented Uhuru, Raila and his running mate Kalonzo Musyoka, IEBC and its chairman Wafula Chebukati in the August 8 petition.

Stakes are even higher this time given the fight could either result in a validation of Uhuru’s win - and with it, a stamp of legitimacy - or herald a third round of the presidential election, which Raila's team is hoping for.

According to lawyer Peter Munge, defending a presidential election petition, besides requiring massive resources- both in manpower and finances- for the lawyers to succeed, they must behave like soldiers in a battle field.

“First you must have a team leader who coordinates all the activities. The work is then devolved to senior lawyers, each given a specific task of responding to a specific issue, then you must have legal researchers and support staff to act as foot soldiers,” explained Mr Munge.

Lawyer Henry Kurauka added both Jubilee and IEBC needed to have between 10 and 20 lawyers for them to successfully defend the October 26 polls.

According to Mr Kurauka, the complexity, importance and public interest involved means that they need more manpower and resources, including other experts to help them unravel difficult questions involving the electoral process.

“Defending a presidential election doesn't require lawyers only; you need other experts in ICT and electoral processes to deconstruct technical issues raised and to explain in simple terms what some terms mean,” said Kurauka.

At the same time, details emerged of behind-the-scene activities that led to the filing of the petition by two human rights activists.

According to sources within the team, preparation by a group of civil society groups to challenge the October 26 repeat presidential election started way before the voting day, with several teams put in place to monitor preparations and events before and during the elections.

“We started preparations early to gather all materials and evidence for our case,” said the source.

The petition against the repeat election and the declaration of Uhuru as winner was planned to be filed by some civil society organisations but that changed in the last minute and they opted to use Njonjo Mue and Khalef Khalifa as petitioners.

Electoral malpractices

Mr Mue is the International Commission of Jurists Kenya Chapter Chairman while Mr Khalifa is the Muslims for Human Rights Chairman.

On Election Day, the civil society dispatched teams to several polling centres across the country to monitor and record electoral malpractices, which were to form part of their arguments on illegalities and irregularities committed by electoral officials.

“As soon as the exercise concluded, there was another team of experts who studied the evidence and were satisfied that there was sufficient evidence of electoral malpractices to mount a challenge on the outcome,” said the source.

The team claims there was use of ungazetted polling stations and officials.

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