Supreme Court urged to dismiss case seeking to condemn violence principles

Institute for Democratic Governance lawyers at the Supreme Court on Tuesday 14/11/17[Boniface Okendo,Standard]

National Super Alliance (NASA) lawyers yesterday asked the court to dismiss the case filed against Raila Odinga and Kalonzo Musyoka seeking to punish them for election malpractices.

Lawyers Jackson Awele and Ben Sihanya argued the case filed by lawyer Kioko Kilukumi on behalf of the Institute for Democratic Governance (IDG) was a nonstarter and was not properly filed before the court.

According to the two lawyers, the Supreme Court can either hear an appeal, an advisory opinion or a petition challenging the election of a president-elect.

They argued the court would be usurping the powers of the Director of Public Prosecutions Keriako Tobiko and that of other investigative bodies if the judges determine whether the Opposition co-principals should be held culpable for election malpractices.

The judges were asked to strike out the case by the institute and condemn it to pay costs.

At the same time, Jubilee Party asked the court to allow the party to join the case.

According to the ruling party's lawyer, Njoroge Regeru, those who support President Uhuru Kenyatta in NASA zones were affected by violence and intimidation.

“We represent the voters whose right to vote were affected. There was intimidation to our members to dissuade them from voting. Our client was also subjected to character assassination,” submitted Mr Regeru.

Lawyer Kilukumi, while opposing the application to strike out his client’s case, argued that the court could not leave the issue of electoral malpractices to other bodies.

“Do you nullify an election because the respondent deliberately orchestrated the violence then they come to this court by themselves or their proxies?” lawyer Kilukumi asked, adding thus: “You have jurisdiction. I have no slightest doubt in my mind."

In the case, IDG argues that the Opposition was to blame for intimidation of electoral commission officials and fuelling war before the October 26 election.

"The people of Kenya were entitled to participate in a presidential election free from threats, fear, intimidation, violence and interference from their right to vote," the institute, through lawyer Kilukumi, argued.

The institute cites Raila Odinga, Kalonzo Musyoka, Moses Wetang'ula, lawyer James Orengo and Musalia Mudavadi as being culpable for fuelling violence to block voters from casting their votes.

If the petition is allowed, Raila and all the respondents could be barred from holding public office for breaking electoral laws.