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Raila has earned legal, political dividends

By Joab Apollo | September 2nd 2017

Following the presidential elections conducted on August, 8, the electoral commission declared President Uhuru Kenyatta the winner on August 11, with 54 per cent of the votes against NASA leader Raila Odinga’s 44 per cent.

Raila lodged a petition against the Independent and Boundaries Commission (IEBC) declaration of Uhuru Kenyatta as the duly elected president. The petition’s main issues were that there were specific irregularities including numerous instances where votes for the petitioner were transferred to Kenyatta totals, eviction of NASA agents in polling stations in the Rift Valley and central Kenya regions, use of ungazetted poll officers, errors in the results forms for vote declarations ranging from statutory documents that were not signed by Returning Officers, others not authenticated by official rubber stamp, and yet others that do not have agent names or signatures.

The petition also stated that some forms for result transmission showed one presiding officer’s name in charge of elections in multiple stations at the same time, 443 instances of un-gazetted polling stations, Forms for result transmission that were filled out in the same handwriting, blank forms, and others that have a polling station, names and details of agents as well as their signatures but are in spaces meant to show results.

The Court made a decision to render substantive justice and threw away objections that were demanded by the lawyers of the parties to exclude court papers that were filed after the prescribed time. The hearing of the petition was concluded on Tuesday, August, 29, well after 9pm. The Judges thereafter retreated to deliberate on the following issues for determination as crafted by the court:

(i) Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.

(ii) Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.

(iii) If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?

(iv) What consequential orders, declarations and reliefs, if any, should be granted by the court?

In a majority decision of the six-judge bench delivered on September 1st, with two Judges (Jackton Ojwang and Njoki Ndung’u) dissenting, the court ruled in favour of the petition as follows:

(a) As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles 10, 38, 81 and 86 of the Constitution as well as, Sections 39(1C), 44, 44A and 83 of the Elections Act, the decision of the court is that the IEBC failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.

(b) As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the IEBC committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of Uhuru Kenyatta.

(c) As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.

Consequent upon the above findings, the Court, pursuant to Article 140(2) and (3) of the Constitution and Rule 22 of the Supreme Court (Presidential Election) Rules , issued Declarations and the Orders as follows:

(i) that the Presidential Election held on August 8th was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;

(ii) that Uhuru Kenyatta was not validly declared as the President elect and that the declaration is invalid, null and void;

(iii) That IEBC to organise and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination under Article 140(3) of the Constitution.

(iv) That each party to bear their own costs of the petition.

The Court also indicated that detailed Judgment containing the reasons for its decision and the dissents will be issued within 21 days of the decision in conformity with Rule 23(1) of the Supreme Court (Presidential Elections) Rules, 2017 as it was impossible with the limited time the court has, to do so.

With this decision, Raila earned both political and legal dividends which he must spend in the next few weeks ahead in the run up to another political contest within the next 60 days.

- The writer is a lawyer based in Nairobi

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