Supreme Petition: LSK seeks to join election case as 'friend of the court'

The society made the application in the petition filed by Azimio la Umoja presidential candidate Raila Odinga and his running mate Martha Karua challenging the final presidential results announced by the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati on August 15.

LSK wants to help the court with three issues concerning the meaning of the standard of proof in an election petition, the value of rejected votes in the presidential election, and the role of the IEBC commission in tallying, verification, and declaration of results.

On the question of the balance of proof of electoral malpractices, Kililo stated that the LSK position would be that the court adopts a balance of probabilities for each side to prove its case.

"Our position would be that the petitioners must discharge the initial burden of proof to show electoral malpractices before the burden shifts to IEBC," said Kililo.

On the question of rejected and valid votes cast, LSK argued that rejected votes should be factored in when computing the 50 per cent plus one vote threshold.

According to LSK, rejected votes should be considered legally cast votes even if it does not add any numerical advantage to any candidate.

"The LSK position is that an election involves everyone who turns up at the polling station and participates in the process. Although a certain number may fail to express a view of any candidate, their choice of rejected votes must be factored as constituting the total votes," said Kililo.

LSK said the Supreme Court should clarify what roles commissioners should play in the presidential election process after the disagreement witnessed at the national tallying centre when four commissioners disowned and distanced themselves from the results announced by Chebukati.

According to the society, its position is that the work of the IEBC is a joint duty where the entire seven commissioners tally and verify the results before the chairman declares the winner.

"We are asking the court to rely on its own judgment where it stated that the IEBC chairperson as an individual person cannot act alone to correct, vary, confirm, alter, modify or adjust results transmitted to the national tallying centre without other commissioners," said Kililo.

Kililo added that once the LSK is joined as amicus curiae, it will not take sides but only supply relevant materials.