Supreme battle: Azimio readies arsenal against William Ruto's win

Former Attorney General Amos Wako, Wiper party leader Kalonzo Musyoka and then Nasa flag bearer Raila Odinga converse before at Supreme court during the presidential petition in 2017. [Edward Kiplimo,Standard] As the clock ticks towards the deadline of filing a presidential election petition, the focus is shifting to the Supreme Court which will be the centre of battle for the next fourteen days. Azimio la Umoja One Kenya has promised a bruising battle to overturn the declaration of President-elect William Ruto arguing that they have evidence to prove the Independent Electoral and Boundaries Commission (IEBC) manipulated the votes to deny Raila Odinga victory. Raila, while rejecting Ruto's victory as declared by IEBC chairman Wafula Chebukati, said they will petition the Supreme Court to challenge the results arguing that the election was marred by irregularities. "What we saw being announced by Wafula Chebukati was a travesty of the laws of Kenya. The figures announced by Chebukati were null and void and must be quashed by a court of law. In our view there was no legally declared president-elect," Raila said. Chebukati declared Ruto the winner with 7,176,141 votes representing 50.49 per cent of the total votes cast against Raila's 6,942,930 votes representing 48.85 per cent. Legal analysts argue that the presidential election petition once filed will provide a new dimension on how elections should be conducted based on the acrimony witnessed during the final tallying and the dissenting opinions of four IEBC commissioners. "It is likely to raise several issues on whether it complied with the Constitution and electoral laws especially on the arithmetic flows, tallying and verification. Failure of IEBC commissioners to take collective responsibility will also be a major issue," said lawyer Henry Kurauka. Raila has already cited the split by the four commissioners and irregularities in the tallying process as some of the grounds they will use to challenge Ruto's win while his legal team, which has been working in secrecy, is putting the evidence together. Prof Makau Mutua, Raila's presidential campaign spokesperson, has also intimated they will raise the issue of discrepancy in total votes cast for the presidential and other elective seats, stating that some counties had 200,000 cumulative votes for other seats but 300,000 for presidential. Constitutional lawyer and political commentator Duncan Okatch said there are likely to be five core issues at the heart of the presidential election petition based on the pronouncements and the spilt in IEBC. "There will be aspects of whether the elections were transparent and verifiable from the point the results were being transmitted and the final tabulation of the results. The integrity of the IEBC system will also come into question and whether there was room for interference," said Okatch. Okatch added that the other issue likely to be contested are the Forms 34A, 34B and 34C after there were indications that there were discrepancies is some of the entries made. According to the lawyer, the petitioners are likely to raise questions on whether IEBC chairman could declare the final presidential results before verification from some constituencies as alleged by the four commissioners who refused to approve the final tally. "The role of the four commissioners will definitely come into play and we hope they will be given a voice to tell us the reasons they dissented and disputed the results announced by the chairman," said Okatch. He explained further that the chaotic environment witnessed at Bomas of Kenya during the declaration of Ruto as president-elect might also form a basis of challenging the election and whether he reached the threshold of being declared the winner. Some legal analysts argue that the anticipated petition challenging Ruto's victory could be made strong by the evidence of four IEBC commissioners who rejected the final tally over what they termed opaqueness of the process. Commissioners Juliana Cherera, who is the IEBC vice-chairperson, Francis Wanderi, Justus Nyangaya and Irene Masit disowned the results stating that the process was opaque. They accused Chebukati of keeping them in the dark during the final tallying process. According to the commissioners, the aggregate percentage of the number of votes garnered by the presidential candidates exceeded 100 per cent which made them refuse to take ownership of the results. They also alleged that the final declaration by the IEBC chairman lacked a critical ingredient of the total number of registered voters, the total number of votes cast, or the number of rejected ballots. "In the absence of a credible and verifiable explanation, we concluded that the process that went into the generation of Form 34c, which Chebukati used to declare results of the presidential election, was opaque and incapable of earning our ownership and confidence," they said. As happened five years ago after the controversial re-election of President Uhuru Kenyatta in 2017 when the National Super Alliance (NASA) waited until the last minute to file their petition, it is happening again. Nasa successfully challenged the re-election of President Kenyatta by raising 10 issues that the Supreme Court agreed undermined the credibility of the election. Their first contention was the relay and transmission of results which they argued was compromised from polling stations, the 290 constituencies and the national tallying centre on account that the process was not simple, accurate and verifiable. Nasa argued that IEBC selectively manipulated, engineered and deliberately distorted the presidential votes cast and counted, and that the commission lacked operational transparency. They also raised issues with unverifiable Forms 34A from the polling stations which were not consistent with tallied results in Forms 34B from the constituencies and that the presidential election was marred and with massive irregularities that you could not tell the winner. The coalition further accused IEBC of allowing 14,000 defective returns from polling stations which caused the total presidential votes casts to exceed those of other elective positions of Governor, Senators and Members of National Assembly by more than 500,000 votes. On the issue of rejected votes, Nasa argued that a total of 395,510 votes were deliberately declared as rejected votes in Raila's perceived strongholds which significantly reduced his national tally and denied him victory. In the end, the coalition persuaded the apex court to find that the irregularities, illegalities and non-compliance with the constitution and electoral laws affected and grossly undermined the integrity of the presidential election and rendered the results a nullity. It is the evidence that convinced majority judges, then Chief Justice David Maraga, Justices Philomena Mwilu, Smokin Wanjala and Isaac Lenaola to nullify the presidential election. "Having analysed the evidence on record, we are satisfied that IEBC failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution and the Elections Act," the judges ruled. According to the judges, the commission committed irregularities and illegalities in the conduct of the 2017 presidential election which affected the integrity of the election. Just like in 2017, Azimio la Umoja- One Kenya Coalition is raising same issues of electoral fraud and irregularities that they claimed denied Raila victory. According to sources within the coalition, they will also be challenging the total number of votes garnered by Ruto and try to prove to court that he did not meet the 50 per cent plus one vote threshold to be declared the president. Since Tuesday when Raila said they will be moving to the Supreme Court, the Azimio team has remained tight-lipped on what strategy they will use to convince the apex court as happened in 2017. "We are putting the evidence together and cite the specific areas of electoral irregularities committed by Chebukati. Once we are done, the country will know that the election was illegitimate and does not represent the will of the people," said a lawyer who is part of the drafting team. It is speculated that the Azimio Coalition will maintain Raila winning legal team of 2017 with addition of other senior counsels including his running mate Martha Karua and Kisumu Senator-elect Tom Ojienda. The former Prime Minister's team in 2017 was led by senior counsel James Orengo, Pheroze Nowrojee, Okongo Omogeni, Otiende Amollo and Prof Ben Sihanya. Others were Odinga's legal advisor Paul Mwangi, Anthony Oluoch, Tom Kajwang', Jackson Awele and Arnold Oginga. According to some lawyers, the petition once filed will present a litmus test for Attorney General Kihara Kariuki as his role will come into focus on which side he supports. As the legal advisor to the government, the AG is always included as a party in any petition challenging the actions of a State organ or an independent institution and which involves people's rights. Known to be a close ally of President Uhuru Kenyatta who is the chairman of Azimio la Umoja -One Kenya council, Kariuki sits on a precarious position on which side he will support once the petition to challenge Ruto's victory in filed. In the 2013 and 2017 presidential election petitions, the then AG Prof Githu Muigai was on the side of IEBC and the winning candidate as he opposed the petition by Raila.

Supreme battle: Azimio readies arsenal against William Ruto's win

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