Petitioners step up fight to invalidate October 26 presidential re-run

Security guard carrying some petition material on the presidential election petition during the hearing of the presidential petition case at Supreme Court on 15/11/17. [Beverlyne Musili,Standard]

Human rights activists Wednesday asked Supreme Court judges not to fear invalidating the presidential election a second time in three months.

Njonjo Mue and Khalef Khalifa reiterated the irregularities witnessed greatly affected the validity of the poll outcome.

“We know the elephant in the room, with people asking whether you can nullify an election a second time in light of public opinion that the country should not be taken to another circus of election.

"But the court does not work for public opinion, you can go ahead and nullify the election,” said lawyer Waikwa Wanyoike.

Five key issues were at the centre of challenging President Uhuru Kenyatta's re-election as petitioners put up a spirited fight to nullify the October 26 repeat election.

Compromised integrity

Former Kilome MP Harun Mwau's lawyers chose to concentrate on only one issue; failure by the Independent Electoral and Boundaries Commission (IEBC) to conduct fresh nominations, arguing it compromised the integrity of the entire process.

On the other hand, lawyers representing human rights activists Mue and Khalifa drafted four issues they claimed made the exercise flawed, illegal and a mockery of the electoral process.

They raised questions on universal suffrage and failure by the poll agency to conduct the polls in all 290 constituencies, violence and intimidation, lack of independence within the commission and massive illegalities and irregularities witnessed before, during and after the repeat election.

Also forming part of the push to nullify the October 26 election was the effect of Raila Odinga and Kalonzo Musyoka’s withdrawal from the race, failure to conduct the polls in 25 constituencies and the fallout between IEBC commissioners, leading to Roseline Akombe's resignation.

Mwau’s lawyers Ben Musyoki and Mark Ouma argued that their position was simple, clear and to the point in relation to how a fresh presidential election should be conducted.

“The basis is that the election was held in violation of the Constitution.

"When the August 8 presidential election was invalidated, it meant IEBC had to start the process afresh by conducting the nomination exercise,” said Musyoki.

According to the lawyer, the office of the president became vacant on September 1 when the Supreme Court nullified the election and it was assumed no one was holding the office which made it mandatory for the commission to carry out nominations.

He accused electoral body of hiding behind the strict timeline of 60 days which made it impossible to conduct nominations, saying they should have acted as soon as the results were invalidated by calling for primaries at least 21 days before Election Day.

Rocket science

“You don’t need rocket science to understand what fresh election means.

"IEBC went on a fishing expedition of other laws to justify their decision, while forgetting the Constitution which demands nominations before fresh election is the supreme law,” said Musyoki.

He cited other positions of governor, senator, and MPs that IEBC carries nominations whenever their victory is invalidated, adding the presidency was not an exception.

Lawyers Julie Soweto, Waikwa Wanyoike and Eunice Lumallas representing Njonjo and Mue further dug in into the conduct of the fresh presidential poll and laid bare what they believe were illegalities and irregularities warranting nullification of the exercise.

Ms Soweto submitted that the election was not free and fair as it was characterised by violence, intimidation, improper influence and corruption.

“We are saying that the commission was not independent and was being influenced by outside forces that dictated to them what to do and when to do it.

"Even the chairman admitted in several public pronouncements the commission was being held hostage by some people,” said Soweto.

She also cited the violence witnessed before and during the October 26 vote, claiming IEBC should be squarely blamed for not assuring the public of a fair process, leading to resistance from voters who believed the exercise would not be credible.

Soweto accused IEBC Chairman Wafula Chebukati of being dishonest and taking the country for a ride by issuing conflicting statements about the commission’s preparedness and capacity to carry out repeat polls.

On why 25 constituencies failed to go to the ballot, the petitioners argued it was unconstitutional given that the law demands presidential elections be done in all the 290 constituencies.

“Election of a president is a national exercise and must happen in all polling centres. Failing to conduct election because of their own refusal to cultivate trust among the voters cannot justify why they did not carry out election in the 25 constituencies,” said Wanyoike.

Ms Lumallas argued the withdrawal of National Super Alliance contenders invalidated the entire process given the pullout happened when there were only two candidates before the High Court ordered the inclusion of other candidates.

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