Will Kenya go for a third presidential poll? Ball in the Supreme Court’s court

Selfie time: Lawyers outside the Supreme  Court on Thursday. [Boniface Okendo,Standard]

Submissions in the second petition against the election of President Uhuru Kenyatta closed Thursday without high-octane presentations that characterised the first petition that annulled the August 8 presidential poll.

The six-judge bench of Chief Justice David Maraga, his Deputy Philomena Mwilu, Justices Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u, and Isaac Lenaola will deliver their judgment on Monday November 20.

Justice Mohammed Ibrahim is unwell and did not participate in the hearing.

Attorney General Githu Muigai and Thirdway Alliance presidential candidate Ekuru Aukot defended the Independent Electoral and Boundaries Commission’s conduct of the repeat presidential election and asked the court to dismiss the cases challenging the election.

Prof Muigai argued that withdrawal of National Super Alliance candidates Raila Odinga and Kalonzo Musyoka and failure to conduct election in 25 constituencies had no legal effect on the validity of the October 26 election.

“There was no legal effect of failure to conduct elections in 25 constituencies; the only requirement is that the winner must get majority votes in the counties and not constituencies. The constitution is very clear on that,” said Muigai.

According to the AG, the electoral commission made every reasonable effort to conduct elections in the 25 constituencies and have those who wanted to vote exercise their rights but were frustrated by opposition leaders who said they didn’t want elections in their regions.

The AG told the judges that Raila and Kalonzo did not legally withdraw from the race by failing to fill the statutory Form 24, and asked the judges not to allow parties who sabotage the constitution to benefit from their decision.

“If we allow the petitions then we will be rewarding those people who are sabotaging the constitution. We will have no answer to tell millions of people who turned up on October 26 to vote. We cannot tell them that the election was nullified because of a person who is sabotaging the constitution,” said Muigai.

Prof Muigai stated that the petitioners had not discharged the burden of proving violence, intimidation and corruption during the election, and accused them of just throwing accusations without providing evidence.

On the issue of nominating the candidates before the fresh election, the AG stated that it was practically impossible with the strict timeline of 60 days the commission was given to conduct the election.

Dr Aukot, through lawyer Elias Mutuma argued that the petitioners did not file the case in good faith, and did not disclose to the court they had previously attempted to scuttle the October 26 election through a petition to stop the exercise.

“The issue of nomination of candidates before the election is water under the bridge, it was settled by the High Court that no nomination is necessary for a fresh presidential election. In any case, nomination is not the only requirement in a presidential election,” said Mutuma.

On the issue of some voters missing in the electronic register, Mr Mutuma argued that it was not a strange thing given that Dr Aukot also missed his name at the polling centre but was allowed to vote after it was verified that he is in the manual register.