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Hearings devoid of vigour as was case in August

By Paul Ogemba | November 16th 2017
Chief Justice David Maraga during hearing of fresh presidential petition at Supreme Court on 14th November 2017. [Edward Kiplimo,Standard]

Round two of the cases challenging the re-election of President Uhuru Kenyatta lacked the vigour and fanfare witnessed during the previous sitting due to the absence of top politicians and lawyers.

Coming less than three months after Raila Odinga and Kalonzo Musyoka’s case, the petitions by Harun Mwau, Njonjo Mue and Khelef Khalifa are neither politically charged nor characterised by the passion, hope, excitement and tension both inside and outside the Supreme Court.

A lawyer on the Independent Electoral and Boundaries Commission (IEBC) team noted the difference between the current and previous case, and admitted they were not under as much pressure as before.

“The petitioners’ legal teams are not as formidable as the ones we encountered in August, although we do take their petitions seriously and have done our best to defend each and every allegation they have made,” said the lawyer.

Algorithm matrix

As the hearings began, the sittings missed the eloquence and grit of lawyer Otiende Amolo and his algorithm matrix, not forgetting the heavily accented metaphorical language of PLO Lumumba and his famous quote, “IEBC has delivered a baby, you cannot strangle it on the table.”

Also missed were the keen eyes of senior counsel Paul Muite, the wit and cunning way with words of Siaya Senator and senior counsel James Orengo, and the humble resilience and pedagogy of senior counsel Pheroze Nowrojee.

The court however encountered an unusual and light moment when a voter from Nakuru County confronted the judges and demanded to know why they had refused to enjoin him in the suits.

Stephen Owoko did not take it lightly when the judges dismissed his application on grounds that he hadn’t proved how the cases affected him.

“You have been cruel to me. I am feeling discriminated against and will go home a disappointed person. The IEBC violated my rights on October 26, and you are violating my rights again when I thought you could help to protect my rights,” he told the judges.

It took the intervention of Chief Justice David Maraga to cool Mr Owoko down. Mr Maraga said it would be impossible to have all 19 million voters coming to court to be enjoined unless they wanted the case to take a year to conclude.

Outside the court, police officers who cordoned off the Supreme Court had an easy time as people passed by displaying little interest in what was happening inside the courtroom.

This was unlike the August petition, where police had a hectic time controlling hundreds of National Super Alliance (NASA) supporters who thronged the court’s periphery, dancing and singing from morning to evening.

The two petitioners have also not mobilised large legal teams; Mr Mwau has only three lawyers and the human rights crusaders have six.

During the August petition, NASA mobilised a huge legal team comprising 25 lawyers, which were divided into smaller teams, each dealing with a specific issue raised for determination.

Legal team

President Uhuru Kenyatta has largely retained the legal team that defended him in August while IEBC replaced two of its top lawyers, Mr Muite and Prof Lumumba, with Kimani Muhoro and Waweru Gatonye.

The IEBC delivered a shocker to the petitioners challenging the October 26 repeat presidential election when they presented a Sh80 million bill for photocopying the voter register.

The Supreme Court had granted Mue and Khalifa a request to have certified copies of the register, as well as access to original forms 34A, 34B and 34C, which they claimed would help them prove claims of irregularities and illegalities committed during the election.

After the afternoon break, IEBC wrote to the activists asking them to deposit the Sh80 million before they could start the process of photocopying the registers.

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