Supreme Court to give detailed ruling on presidential repeat poll petition

Supreme Court judges Njoki Ndungu, Philomena Mwilu (Deputy Chief Justice), David Maraga (Chief justice), Jackton Ojwang and Isaac Lenaola. (Photo: George Njunge)

The Supreme Court will tomorrow release its detailed determination of the October 26 election presidential election petition.

Chief Justice David Maraga, his deputy Philomena Mwilu and Justices Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola will tell the nation if National Super Alliance leader Raila Odinga validly abandoned the re- run.

The decision will also address the heated issue on effect on elections when voters from 25 Constituencies failed to vote. The law requires that for an election of a President to be valid, all 290 constituencies ought to participate.

Independent Electoral and Boundaries Commission (IEBC) told the judges that it postponed the election to a later date in the affected constituencies because of violence.

Kenyans will know whether the court will reprimand or condemn the Opposition over running battles between its supporters and the police in areas where voting did not take place.

The Supreme Court will address the issue of low voter turnout and its implication on the legitimacy of the incumbent. IEBC indicated there was a 38 per cent turnout, with Opposition declaring that 62 per cent of the voters who stayed away were Raila supporters.

Legal battle

There were two cases filed to challenge President Uhuru’s win. The first case was by Njonjo Mue and Khelef Khalifa while the second was by former law maker Harun Mwau.

In the Mwau case, there were five issues for determination. One was whether another electoral cycle kicked off after the nullification of the August 8 election. At the heart of the Khalifa and Mue’s case are eight critical issues.

Among them is whether the October 26 election and its results were legitimate and credible.

The court was also asked to determine whether IEBC’s failure to conduct fresh nominations illegitimised the process.

The court will determine whether IEBC would have been in contempt of its orders if it pushed the repeat election to a date beyond the 60 days set by the law. Khalifa and Mue put up a spirited legal battle, arguing the October 26 election was a sham.

The two activists built their argument on the internal wrangles between IEBC commissioners and officials. According to the two, the resignation by former commissioner Roselyne Akombe and admission by the chairman Wafula Chebukati that there were factions allied to political parties within the commission indicated it was ill-prepared to conduct a re-run.

Fresh nominations

Through lawyer Julie Soweto and Waikwa Wanyoike, the two also argued that NASA’s walkout from the repeat contest meant IEBC should have called it off for at least 90 days to allow parties carry out fresh nominations. Mwau argued nominations ought to have been called within 21 days after the nullification of the August 8 presidential election. Through his lawyer, Ben Musyoki, he stated that the nomination certificates that had been issued to the candidates by IEBC expired immediately the Supreme Court pronounced itself. He accused IEBC of hiding behind the strict timeline of 60 days, which made it impossible to carry out nominations.

“IEBC went on a fishing expedition of other laws to justify its decision while forgetting that the Constitution, which demands nominations before a fresh election, is the supreme law,” said Musyoki.

During the hearing, Chebukati defended the October 26 repeat election, saying it was above board. Through lawyers Waweru Gatonye, Kamau Karori and Mahat Semane, he argued that the repeat election was done in accordance with the law and the judgement by the Supreme Court on September 1.

According to Mr Chebukati, it was impossible for the parties to hold fresh nominations and for IEBC to gazette the newly nominated candidates and conduct the election within 60 days.

On the issue of withdrawal of NASA candidates Raila Odinga and Kalonzo Musyoka, Chebukati said the two would have validly pulled out if they had submitted Form 24A.

President Kenyatta on the other hand argued he won the election by a majority and thus the court should throw out the cases. Through lawyer Fred Ngatia, the Head of State told the court the Opposition was using the activists to put up a fight.