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Mwau is a busy body out to waste Supreme Court's time, says Uhuru

By Paul Ogemba and Kamau Muthoni | Published Tue, November 14th 2017 at 08:25, Updated November 14th 2017 at 08:33 GMT +3
Harun Mwau's lawyer, Benjamin Musyoki, presents documents at the Supreme Court in Nairobi challenging the validity of the October 26 presidential election. [Photo: File, Standard]

IN SUMMARY

  • Mwau is seeking to nullify the October 26 repeat presidential election on grounds that the IEBC did not conduct fresh nominations
  • Uhuru submits the petition is misconceived, has no merit and cannot succeed given that the Supreme Court did not order IEBC to carry out another nomination of candidates
  • Chebukati accuses the petitioner of failing to recognise the guiding principles of a fresh presidential election

President Uhuru Kenyatta has dismissed former Kilome MP Harun Mwau's poll petition as a waste of the Supreme Court’s time.

Mr Mwau is seeking to nullify the October 26 repeat presidential election on grounds that the IEBC did not conduct fresh nominations for candidates before gazetting the names and proceeding with the poll.

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Uhuru and Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati in their separate affidavits argue all presidential candidates for the October 26 presidential election were validly nominated and that Mwau’s case is based on misunderstanding of the law.

“The petitioner’s allegations are just hot-air and misunderstanding of what constitutes a fresh presidential election. Even in the unlikely event that his allegations were to be proved, they cannot justify nullification of a presidential election,” says Uhuru.

He states it would be unfair to him to have his re-election nullified a second time on such flimsy grounds of IEBC’s failure to conduct nominations, and would occasion injustice to Kenyan taxpayers who have already spent Sh14 billion in the repeat poll.

No merit

According to the former MP, IEBC was supposed to conduct fresh nomination of candidates after the Supreme Court nullified the August 8 polls. Mwau accuses the commission of sleeping on the job.

But Uhuru submits the petition is misconceived, has no merit and cannot succeed given that the Supreme Court did not order IEBC to carry out another nomination of candidates but to proceed with those who participated in the August 8 polls.

“There was only one legal nomination of presidential candidates, which happened in May, and I was among those who met the requirement and subsequently participated in the August 8 election. There was no other nomination which was required,” says Uhuru.

In his affidavit, IEBC Chairman Wafula Chebukati also states the August 8 election was invalidated due to irregularities and illegalities during the election exercise and did not include the process of nominating presidential candidates.

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As such, the IEBC chairman swears that all candidates who participated in August 8 polls were assumed to have been validly nominated and justified to participate in the repeat polls.

“It is not accurate that nomination of candidates was to happen 21 days before the election as the situation is different. The fresh presidential election was a special case that required no nomination due to the strict timeline of 60 days given by the Supreme Court,” says Chebukati.

He further denies allegations that he discriminated against other presidential candidates when he failed to gazette their names immediately after the court ordered a repeat poll, waiting for a court order to include their names.

Chebukati accuses the petitioner of failing to recognise the guiding principles of a fresh presidential election, where the commission is only required to build on the existing foundation of the previous election.

According to the IEBC chairman, it would have been practically impossible to have a nomination exercise within the 60 days it had to conduct the August 26 election, and that they were not under any obligation to demand Sh200,000 nomination fees from the candidates.

“The commission did due diligence in carrying out the fresh presidential election. All processes were transparent, with all candidates being invited to give their views and none of them ever raised the issue of nominations,” says Chebukati.

Uhuru and Chebukati want the Supreme Court to dismiss Mwau’s petition and declare that there is no requirement for nomination of candidates in a fresh election.

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Nomination certificate

The President further states that the nomination certificate issued to him on May 29 ahead of the August 8 poll was still valid and has never been challenged in court, and this qualified him to contest in the repeat election.

“I believe the fact that no nomination was conducted did not cause any prejudice to any person who would have desired to be a candidate in the fresh election as such person affected would have filed a case in court to be included,” says Uhuru.

In any event, the President says, the High Court had ruled that it would serve public interest if all candidates were allowed to participate without subjecting them to fresh nomination.

He adds that the former MP would have approached the Supreme Court before the election if he had issues with nominations, and wonders why he had to wait until the election was over to come up with the petition.

“Mwau’s petition is manifestly wanting in fact, gravely misconceived and irredeemably lacking any merit. The only available option is for the Supreme Court to dismiss it and order him to pay costs for filing the frivolous case,” says Uhuru.

He also defends IEBC, stating that the commission did its best to ensure the October 26 election was done in accordance with the Supreme Court orders issued on September 1 which annulled the August 8 presidential results.


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