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Another restless moment as poll ruling due tomorrow

By Kamau Muthoni and Nzau Musau | November 19th 2017
Lawyers at the Supreme Court during hearing of the petitions on November 14. (Photo: Edward Kiplimo/Standard)

Two months after turning the tables on President Uhuru Kenyatta and upsetting the system, all eyes are back on Chief Justice David Maraga tomorrow as he delivers yet another decisive poll verdict.

On September 1, he pushed the country back to another presidential election with an ominous warning on the Independent Electoral and Boundaries Commission (IEBC) to strictly observe the law or face the same music.

For this unprecedented move, Maraga and his bench of Justices Philomena Mwilu, Isaac Lenaola, Smokin Wanjala, Njoki Ndung’u and Jackton Ojwang’ endured months of public ridicule and praise - all in equal measure.

Throughout the experience, the judges maintained a studious silence while their leader established himself as a no-nonsense religious man wholly sold to the law and its obedience, oblivious of power stature but also stoic to the core.

Tomorrow, with the fresh poll having been conducted on October 26 and a fresh petition argued before them raising concerns over violations of electoral law, the judges find themselves at a crossroads with the destiny of the country in focus.

When they walk inside the hallowed courtroom tomorrow, they will be walking with them the hopes of millions of Kenyans whose lives have stagnated since the electoral cycle peaked in the year.

The decision they deliver will either crush or give hope to either of the two parallel forces whose battle to attain or reclaim top political power has captured the national psyche and held it at ransom.

While President Uhuru Kenyatta is sorely baying for a chance to run his second and final term, his nemesis and NASA leader Raila Odinga is crossing his fingers on the court to give him another chance to fire his last political bullet.

Raila’s hopes are bound on the strength of the petitioners’ case as argued by activists Khelef Khalifa and Njonjo Mue as well as former Kilome MP Harun Mwau. Neither Raila nor his NASA coalition directly participated in the petition.

Second time

If the petitioners convinced the judges to invalidate the case, Raila will be smiling for a second time in two months.

In contrast, Uhuru is hoping that his lawyers who crept out of Maraga’s court on September 1 in humiliation will shatter the petitioner’s case. If they did, only one thing stands between him and a second term - Maraga’s announcement.

For Article 141 of the Constitution demands that he ought to be sworn in on the seventh day following the date on which the court renders a decision declaring the election valid, that is November 28.

“The oath or affirmation under sub-section (1) shall be administered to the President-elect by the Chief Registrar before the Chief Justice, or, in the absence of the Chief Justice, the Deputy Chief Justice, not earlier than 10am and not later than 2pm, save that the Deputy Chief Justice shall undertake the task only in circumstances where the Chief Justice is incapacitated,” the law reads.

 If the petitioners carry the day, the country will be plunged into yet another 60 days of high voltage political season stretching up to end of January next year.  The core of the petitioner’s case is that IEBC refused or failed to conduct presidential nominations in accordance to the law, that the election was not conducted in each constituency in accordance with the law and that violence characterised the conduct of the exercise. Adding fuel to their arguments is the question of low voter turnout (38.8 per cent) - the lowest since the first multi-party elections of 1992, according to the petitioners.

 In the September 1 Supreme Court majority decision by the CJ, his deputy Mwilu, Justices Wanjala and Lenaola, they ruled that numbers did not matter as long as the process was flawed.

The majority judges reiterated that the procedure through which the president is elected is what matters and that elections are not events but processes.

“One, that elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe.”

“Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution,” they ruled.

In sticking out for their client, Uhuru’s lawyers argued that although the number of voters dropped during the repeat election, Kenyatta’s popularity remained constant in all counties that cast ballots.

Brandishing the card of voluntarism of vote, the lawyers argued that all the 19 million voters have a right to vote and that failure to vote presupposes a voluntary abdication of that right.

“The allegation on low voter turnout at the fresh presidential election is misplaced and borne out of ignorance or deliberate intention to mislead this honorable court,” they told the court.

Repeat poll

“There is a consistent trend nationally and internationally for turnout at by-elections or repeat elections to be lower than those of the general elections,” Jubilee Party lawyers argued.

At the hearings, IEBC defended its conduct, saying it made the best of the circumstances, that there was no prescribed number of voters that can be used to measure up the validity of an election and that all voters need not participate in the poll for it to be valid.

Attorney General Githu Muigai argued that the purpose for numerous litigations in court over the election was meant to stall the process. He urged Maraga’s court to uphold the election.

 According to the AG, the court cannot order for a fresh election as it will have indirectly rewarded those who wanted to stall it in the first place.

“We have been in the courts in three cycles. The first one was about IEBC must go, then we went to another on the procurement of election materials then a new one that the election must be postponed,” the AG argued.

 He cautioned that the country will plunge into a constitutional crisis if the court will order that there should be a third election.

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