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Four court battles set to shape 2022 polls, succession politics

By Kamau Muthoni | Dec 27th 2021 | 5 min read

IEBC Chairman Wafula Chebukati.

Next year’s election is likely to be shaped by five court battles currently before the Judiciary.

It is now emerging that decisions made by courts on whether the Independent Electoral and Boundaries Commission (IEBC) boss Wafula Chebukati should oversee the 2022 elections will significantly shape the presidential race.

Also, the question of whether State officers should resign six months before the polls is a major decision that will steer the contest into a new direction. In addition to these, there is a case challenging the tender to print ballot papers.

Another case will also determine if an option of ‘none of the above’ will be included on ballot papers.

Under the Building Bridges Initiative (BBI) case, the Supreme Court will determine whether the country will hold the elections alongside a referendum to change the Constitution.

The ghosts of failure to open servers during the 2017 elections have also returned to hound Chebukati. There are two cases filed before High Court - one by activist Khelef Khalifa and one by Samwel Clinton Elijah.

The cases stem from the Supreme Court’s annulment of the 2017 presidential election results. The two argue that the buck stopped with Chebukati in IEBC’s indictment by the Supreme Court.

On August 28, 2017, the Supreme Court ordered IEBC to open servers used in streaming presidential election results and allow two independent Information Technology experts who had been appointed by the court to compile a report on the authenticity of President Uhuru Kenyatta’s victory. The servers were, however, not opened. The Supreme Court, by a majority, ordered for a repeat presidential poll following IEBC’s failure to open the servers.

Khalifa has opted to revisit the battle, which pitted Uhuru and his deputy, William Ruto, against NASA principals Raila Odinga and Kalonzo Musyoka.

Khalifa’s lawyer, Willis Otieno, in the case filed before the High Court has named Raila and Kalonzo as interested parties.

“In direct violation of the orders of the honourable court, Wafula Chebukati, the returning officer of the presidential election, has refused and willfully disobeyed the orders of the honourable court and denied the parties and Kenyan people access to the technology, and particularly the servers used in the presidential elections whose results were subject to petition number one of 2017 before the Supreme Court,” he argues.

Meanwhile, Elijah is seeking to have the IEBC chair barred from holding office over the bungled election.

He argues that although the Supreme Court found gaps that affected the process, leading to the nullification of the results of the presidential poll, the commission had not facilitated public participation or taken action to ensure they are sealed.

“The Respondent (Chebukati) failed to adhere to the Constitution and the applicable laws hence steered the 1st interested party (IEBC) in conducting presidential elections that were marred by irregularities and illegalities which were substantial and significant that they affected the integrity of the presidential election of August 8, 2017, the results notwithstanding,” court papers filed by lawyer Denis Seko read.

Elijah wants Chebukati barred from heading the commission until the case is heard and determined.

Critical positions

He says IEBC is ill-prepared for next year’s elections, and that it failed to fill critical positions that were left vacant by former commissioners. He says the commission has an additional staff deficit of 296, including for the position of a chief executive officer.

In his rejoinder, Chebukati sees the cases filed by Khelef and Elijah as a plot to hound him out of office.

He argues that there was no order issued against him in person and neither was he sued by Raila and Kalonzo in his personal capacity.

While urging the court to dismiss the cases, the IEBC chair argues that the High Court has no powers to settle the duel or even bar or suspend him from holding office.

The only avenue available is the National Assembly.  How the court will rule on this will either have Chebukati remain as the electoral referee or set the stage for his removal from office.

Kenyans will also be waiting to see how courts will determine what is the period by which public officers must resign to seek elective positions.

The electoral agency declared that public officers interested in political seats should resign from office by February 9, 2022.

This case is filed by Dr Julius Wainaina, who argues that IEBC’s decision is contrary to the court’s verdict that public officers should resign within 14 days after IEBC has issued a notice for the general election.

“The said action of compelling some public officer to resign six months before the election period does not only threaten the rights of the petitioners but faces conflicting decisions of the High Court,” argues Wainaina.

According to him, IEBC has not issued a notice for next year’s election and parties have not even nominated their candidates.

Also watched keenly is how courts will determine a case challenging procurement of Kenya Integrated Elections Management System (KIEMs) kit and printing of ballot papers. The KIEMs kit and the ballot papers are two integral components of the election, and any delay in procuring them could affect the integrity of the polls set for August 9.

The Kiems kit tender includes the supply, delivery, installation, testing, commissioning and maintenance of software and hardware and accessories for the running of the election.

The cases revolve around the tender to supply Kiems kits by Dutch firm, Smartmatic, and ballots printing tender awarded to a Greek firm, Inform P Lykos Holdings. 

Already, the tender to print ballot papers is being fought at the Court of Appeal by disgruntled suppliers.

Inform P Lykos Holdings had been picked from a pool of 12 firms that bid for the supply of ballot papers.

Yet another hurdle for IEBC to maneuvre is a case filed by Boniface Mwai to have an option of ‘none of the above’ as an option for voters.

Mwai claims the inclusion of the option will enable voters who do not wish to vote for any of the contesting candidates for a seat to exercise their right to reject all without violating the secrecy of their decision.

In his suit, Mwai claims the ‘none of the above’ option will enable voters to express their dissatisfaction with the available options on the ballot.

In the other case, the Supreme Court will be expected to give a verdict on the BBI bid to amend the 2010 Constitution.

Attorney-General Kihara Kariuki and IEBC filed their appeals seeking to overturn a Court of Appeal’s decision stopping the amendment.

 President Kenyatta and ODM leader Raila Odinga support the appeals and are seeking to have the highest court in the land to restart the process. Uhuru said that the amendment will somehow, someday be done while Raila averred that reggae had just been paused.

Court of Appeal president Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott upheld the High Court judgement that declared the Constitution of Kenya (Amendment) Bill, 2020 null and void, prompting the government advisor to seek redress at the highest court.

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