Key issues that could determine Uhuru's fate as Supreme Court judges retreat to make a decision

President Uhuru Kenyatta's lawyers Fred Ngatia (left), Ahmednasir Abdullahi (centre) and Ken Ogetto during the hearing of the presidential election petition at the Supreme Court on Friday. [Boniface Okendo, Standard]

New election laws passed by Parliament will form a key part of consideration for the Supreme Court judges.

This is as they head for a three-day retreat to consider whether to uphold or invalidate President Uhuru Kenyatta’s re-election.

Failure to conduct fresh nomination of candidates, withdrawal of National Super Alliance (NASA) candidates, failure to conduct polls in 25 constituencies, low voter turnout and violence during the October 26 election are the other questions the judges will answer when they give a verdict on Monday.

Most of the issues have been addressed in the Election Laws (Amendment) Act 2017, which could prove to be the key determinant of the contest, with the judges being put between a rock and hard place based on provisions of the new law.

It is the reason all parties in the presidential election petition put a lot of weight in their arguments, either to oppose or back the use of the new law in determining the cases.

Human Rights activists Njonjo Mue and Khalef Khalif, through their lawyers, argued that the Act is illegal, unconstitutional and cannot be applied in their case given that it came into effect on November 2, after the election had been held on October 26.

“The amendment was a deliberate attempt to curtail the court’s power in determining election disputes and we urge the court to find that it is unconstitutional.

Not applicable

"In the alternative, the court should find that it came into force after the election and is not applicable in determining this case,” said Waikwa Wanyoike.

But President Uhuru Kenyatta and Attorney General Githu Muigai defended the new law, insisting it is the one to be applied by the judges in determining whether to uphold or nullify the October 26 election.

Lawyer Fred Ngatia, representing the President, submitted the law was validly passed through public participation and should be the guiding foundation for the judges when deciding on the petitions.

“At the time they filed their petitions, the Act had already been gazetted and it became law.

"I don’t understand why it should not be used in this case when any statute is assumed to be constitutional unless declared otherwise,” said Ngatia.

Prof Muigai added Parliament was justified to make the changes in election laws to protect the integrity of the vote and cannot be faulted for doing its job.

The controversy over the new law drew the judges' attention, and on several instances interrupted proceedings to ask the lawyers to clarify the exact time they think the law should come into force.

Under Section 9 of the Act, the court shall not declare an election void for non-compliance with any written laws if it appears the poll was conducted in accordance with principles laid down in the Constitution and if non-compliance did not substantially affect the results.

That provision, the petitioners claimed, was intended to curtail the judges in invalidating the presidency, but was defended as necessary to protect the integrity of election.

The second issue the judges will answer is the effect of the withdrawal of Raila and Kalonzo and whether the Independent Electoral and Boundaries Commission (IEBC) should have cancelled the contest.

Whereas the petitioners submitted the withdrawal should have made the poll agency call off the exercise, both the commission and Uhuru’s lawyers argued that NASA candidates did not legally withdraw from the race and only boycotted the exercise.

Two candidates

The judges, however, kept asking what should have happened, given that NASA withdrew from the race when they were only two candidates, and the other candidates had not been added in the race.

“It would have been a different scenario if they were only two candidates and one withdrew.

"But in this case, the High Court had ruled that all candidates be included, which made NASA's withdrawal inconsequential,” said Ngatia.

But lawyer Julie Soweto, for the petitioners, argued Raila and Kalonzo withdrew on October 10 when they were only two candidates, and IEBC should have acted at that time to call off the elections.

The next issue the Supreme Court judges will grapple with is whether IEBC should have conducted fresh nomination of presidential candidates before the repeat election.

According to former Kilome MP Harun Mwau, the August 8 election was invalidated in its entirety and the electoral body should have allowed political parties to nominate their candidates before election.

But IEBC and Uhuru dismissed the allegations, saying only the August 8 outcome was invalidated, and all other processes in conducting presidential election, including nominations, were deemed to have taken place.

The next core issue the judges will answer is the failure to conduct election in all the 290 constituencies.

The petitioner’s case was that this was unconstitutional since the law demands that a presidential election be done in all constituencies.

But the other parties defended the IEBC chairman for cancelling elections in those constituencies, arguing the circumstances would not allow for an election.

In any event, they argued, total votes in those areas could not affect the final outcome.

[email protected]