Elections 2017

President Uhuru Kenyatta's three-faced strategy to dismantle Raila's petition

Lawyer Fred Ngatia for jubilee submits at the supreme court during the presidential petition . PHOTO BY GEORGE NJUNGE

President Uhuru Kenyatta on Tuesday set out to demolish the petition by his rival, Raila Odinga, as he tried to convince the Supreme Court that he fairly and convincingly won the presidential election.

Maintaining that he had won the election with a big margin, President Kenyatta, through his lawyers, said the Supreme Court has no powers to overturn the will of the people.

Kenyatta adopted a three-phase approach to dismantle Raila's case, at the same time insisting that the General Election was conducted in a free and fair manner.

The incumbent, in his reply presented by lawyers Ahmednasir Abdullahi, Fred Ngatia, and Tom Macharia, relied on the evidence given by Raila, the law, and statistics to buttress his assertion that he won a clean sweep.

Lawyer Abdullahi opened the submissions with an argument that the Supreme Court should stick to the 2013 judgment, which validated President Kenyatta as legitimately elected.

He argued that the former Prime Minister's case was not about a political contest but would determine whether the 15 million votes cast will be rendered useless on account of an individual's right to seek power.

ALSO READ: Raila wins first hurdle to prove IEBC system hacking

The senior lawyer termed the opposition leader's case as "science fiction that would only interest Hollywood directors".

According to him, the numbers presented to the court plus the evidence by the National Super Alliance (NASA) presidential candidate were woven lies that no one would admit, even without a defence.

"For the court to agree with the petitioner, it will decide that the votes cast by Kenyans do not count," he submitted. Even if you expunge our documents, this petition will still be dismissed. These are allegations without any evidence. It is a piece of science fiction that only Hollywood directors would be interested in,"said Abdullahi.

Solid substance

According to the lawyer, Opposition leaders Raila and Kalonzo Musyoka had not provided any solid substance to back their claims of electoral irregularities.

In any event, he argued, the elections were carried out in accordance with Raila and Mr Musyoka's will, the two having instigated electoral reforms in 2016 leading to disbandment of the Isaack Hassan-led electoral commission.

Mr Abdullahi added that NASA then went on a 'litigation spree' to contest every decision made by the electoral commission to get what they demanded, and should not turn around to claim that what they had demanded was not complied with.

ALSO READ: Raila wins first hurdle to prove IEBC system hacking

"The election was done in accordance with the law, invalidating it will mean deconstructing Article 140 of the Constitution and telling Kenyans that what they did was invalid and that they violated their own rights by voting for President Kenyatta," he said.

He revisited the Supreme Court case of 2013 between Raila and Kenyatta, arguing that it was a concrete decision and that the current judges cannot depart from what was ruled.

He submitted that the decision settled the historical questions regarding disputed presidential elections, and that unless there was evidence of ineligible voters being allowed to vote, then any other evidence cannot justify cancelling the elections.

"The court can only invalidate the election if it is confirmed that an area like Mandera had 20,000 unregistered voters casting their votes of 30,000 people being imported from Uganda to vote in Busia," said Abdullahi.

He argued that even in developed countries, no presidential election has ever been invalidated based on simple technicalities unless it is proved that there was interference with the people's rights to elect their leaders.

He added that although the judges may not entirely agree with the 2013 decision to uphold President Kenyatta's win, they should use the findings on the conduct of elections to lay a foundation in determining that the August 8 polls were free, fair, and in compliance with the Constitution.

Lawyer Ngatia took the mantle from Abdullahi and dealt with the evidence presented by Raila and statistics tabulated by the Jubilee Party to show that the President painted the country red with a resounding a win.

ALSO READ: What Raila can obtain from IEBC servers

"The third respondent had garnered majority votes in 39 counties. They gave him more than 25 per cent of votes as required by the law," lawyer Ngatia submitted.

According to the lawyer, in a tabulation of all the discrepancies cited by Raila in court, Kenyatta would only lose 800 votes and his opponent would gain 900 votes.

He presented to court evidence that forms 34A and 34 B which had been presented as defective were correct and did not have any error.

"The petitioner is seeking to invalidate a process that was otherwise a valid election. The two candidates had agents across the country and they signed the forms," he argued.

Results streaming

The incumbent Head of State also depended on reports from the international community observers who gave the election a clean bill of health.

He quoted ELOG, the Commonwealth representatives, and former US Secretary of State John Kerry, who unanimously endorsed the process after visiting various polling stations in the country.

On the formula used Monday by the Opposition leader to justify that the results streaming were cooked, the lawyer explained that it could not apply as there were polling stations which had as low as 10 voters and others one.

ALSO READ: NASA granted access to IEBC servers

The judges heard that in some of the polling stations which had few voters, Raila beat the incumbent with six votes.

He explained that if the Y=MX+C formula was applied, it meant that President Kenyatta ought to have received more than 180,000 votes, but that was not the case.

Dozens of voters

Ngatia told judges that the theory by the Opposition that all polling stations had 700 voters was also invalidated by those stations which had dozens of voters.

The judges were also told that the allegation that Cabinet secretaries (CSs) were being used to campaign for the incumbent was not backed by law.

He explained that they are political appointees and not public officers.

"Those allegations against the CSs are without any foundation," he argued.