How three-day contest between lawyers went down to the wire at Supreme Court

Lawyer James Orengo,Lawyer Julie Soweto and Lawyer Philip Murgor during the presidential petition at the Supreme Court, Nairobi on September 2, 2022 [David Gichuru, Standard] The seven Supreme Court judges have their work cut out to separate wheat from the chaff following strong cases pitched by parties in the presidential election dispute. From the hearings that concluded on Friday, lawyers representing petitioners and respondents tried to outdo each other as they put forth evidence to answer the nine issues at the centre of the dispute the judges set for determination. From the first day of their sitting on Tuesday, Justices Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko took charge of the proceedings by spelling out ground rules and setting the issues for determination. Petitioners' case First on the ball were Azimio presidential candidate Raila Odinga and his running mate Martha Karua who, through their team of lawyers led by senior counsels James Orengo, Pheroze Nowrojee and Philip Murgor, argued that massive electoral fraud denied them victory. The team argued that from the totality of their evidence of discrepancies in transmitted results, infiltration of IEBC's system to disunity at the commission; they had proved that President-elect William Ruto was not validly declared the winner. "What happened is not just a conspiracy theory or any other ordinary event. What happened marked a pattern of constitutional violation to undermine people's authority given that the election was not free, fair, accountable and verifiable," said Orengo. Orengo submitted that Ruto's total votes of 7,176,141 did not equate to 50.49 per cent as declared by IEBC Chairman Wafula Chebukati since he based the calculation on wrong voter turnout. They also explained to the court, through simulation by lawyer Julie Soweto, how some Forms 34A were altered at the polling station and that the IEBC systems had footprints of a Venezuelan national who had access to the servers. "It was not a coincidence that the electronic voting system failed only in Raila's strongholds as well as the postponed elections. This resulted to voter suppression and discouraged his supports from voting," said Soweto. Raila's chief legal advisor Paul Mwangi submitted that IEBC did not carry out the tallying, verification and transmission of presidential results in accordance with the law which led to four commissioners disowning the results. Nowrojee argued that IEBC chairman Wafula Chebukati bungled the election and asked the court to declare him unfit to hold public office while Murgor presented to court the allegations of staging and alteration of Forms 34A. Raila and Karua were supported by six other petitioners led by human rights activists Khelef Khalifa, George Osewe, Ruth Mumbi and Grace Kamau who, through lawyer Willis Otieno, claimed that the presidential election was so badly managed that you could not tell the winner. Busia Senator-elect Okiya Omtatah assisted by Prof Tom Ojienda argued that Ruto did not meet the 50 per cent plus one vote. "A correct tabulation of the voter turnout announced by the chairman showed that he cannot account for 140,138 votes. If this is correctly put in the final tally, it shows that Ruto did not win the election and was irregularly declared as the winner," said Omtatah. John Njoroge Kamau, through Zehrabanu Janmohamed, argued that Chebukati committed an electoral offence by failing to ensure the presidential results were correctly tallied and verified to reflect the people's will. Youth Advocacy Africa and Peter Kirika through lawyer Tom Macharia argued on voter register, electronic identification of voters, integrity of the technology employed by IEBC while lawyer Kibe Mungai argued that the commission failed to take into consideration critical workers. A faction of IEBC led by Vice-chairperson Juliana Cherera, commissioners Justus Nyangaya, Francis Wanderi and Irene Masit supported the petitioners' case to nullify the presidential election. Through lawyers Paul Muite, Issa Mansur, Jotham Arwa, Apollo Mboya, Jeremy Njenga and Gordon Ogola, they asked the Supreme Court to disregard the submission by their chairman and declare that the presidential election was bungled. "We are asking the court to be guided by the position taken by the four commissioners since they are the majority and their position should guide the court in making a just decision. Their position is that the election was not done in accordance with the constitution," said Muite. According to Mansur, the four commissioners made every attempt to have a credible election but Chebukati thwarted all their attempts, prompting their refusal to be part of an opaque process. Mboya argued that the chairman took the other commissioners for a ride when he changed their roles at the last minute to deny them opportunity to take part in the tallying and verification process. Arwa submitted that there was interference with uploading of Forms 34A and that the irregularities affected the results while Njenga argued that the four commissioners decided to disown their chairman and tell the country the truth of what transpired at Bomas of Kenya. Defendants' case IEBC and Mr Chebukati led the defence to prove that the election met the constitutional requirement and that they are unfairly being vilified for doing the correct thing of declaring Dr Ruto as president-elect. Through lawyers Prof Githu Muigai, Kamau Karori, Eric Gumbo, Mahat Somane and Abdikadir Mohamed, they relied on numbers, used video clips, evidence by commission's ICT experts and returning officers in their bid to debunk allegations of bungling the election. Prof Muigai argued that the case by Raila and the other petitioners was a fallacy since they tried to impeach the IEBC's processes but failed to find fault in the numbers Chebukati used to declare Ruto winner of the presidential race. "It is made worse by the fact that the petitions make allegations of criminal nature, fraud, tampering with election materials and conspiracy to unlawfully influence the election without a shred of evidence," said Muigai. Mr Karori told Raila and Karua to accept they lost the August 9 presidential election and defended the chairman arguing that the commission is not about the seven commissioners but a corporate body . Kamau argued the only person who ought to verify, tally and declare the winner is Chebukati and not the commissioners at a plenary. He denied that the IEBC chair appointed himself as a national returning officer. Dr Ruto's team led by Senior Counsel Fred Ngatia, Kioko Kilukumi, Kithure Kindiki and Kiragu Kimani, Dr Ruto and hid deputy Rigathi Gachagua defended his victory claiming that no evidence had been provided to prove the elections were rigged in his favour. "We have painstakingly looked at the petitions and found no evidence of their claims. Their claims are just work of fiction, full of pranks to mislead the court to moderate excesses of the political class and take the role of voters and declare Raila Odinga as president," said Ngatia. Mr Ngatia told the Supreme Court that the petitions challenging the presidential election were nothing other than generalities that cannot lead to nullification of the results. They further claimed that there were senior state officials who were hell bent to ensure that Ruto is not declared the winner including storming the national tallying centre at the Bomas of Kenya to force Chebukati to either announce Raila as the winner or force a run-off. Mr Kilukumi in his submissions claimed that after failing to prevail upon the IEBC chairman to declare Raila as president or force a runoff, they instigated fallout within the commission . "Raila is here telling you to either give him the baby (presidency) or cut the baby into two and order for a rerun. That tells you who owns the baby, the father of the baby is William Ruto. We ask that you dismiss the petitions and give him the presidency," said Kilukumi. Lawyer Katwa Kigen said Raila's complaint that IEBC's system was infiltrated was untrue since no evidence showed unauthorised persons accessed the system. Dr Muthomi Thiankolu termed the petitions challenging the presidential election as nothing but a royal comedy and tragedy with spurious allegations that cannot be substantiated. Prof Kindiki, in his submissions, claimed that August 15, a mob of people including those holding senior positions in government invaded the presidential dais at the Bomas of Kenya in an orchestrated attempt to interfere with powers of IEBC to declare results.

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