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Highlights of the October 26 poll petitions

By Luke Anami | November 11th 2017
Kithure Mutua (Left) and IEBC lawyer Wambua Kilonzo (Right), during presentation of Form 34 As and Bs at Supreme court on November 10 2017. Photo: Edward Kiplimo/Standard

A constant theme running through three petitions filed at the Supreme Court to nullify President Uhuru Kenyatta’s election are malpractices allegedly committed by the electoral commission.

The petitions by former Kilome MP Harun Mwau and two human rights leaders Njonjo Mue — the chairman of International Commission of Jurists (ICJ) Kenya Chapter — and Khelef Khalifa, the chairman the Muslims for Human Rights (Muhuri), fault how the Independent Electoral and Boundaries Commission (IEBC) conducted the October 26 polls.

IEBC is listed as the first respondent, the commission’s chairman Wafula Chebukati as the second and President Uhuru Kenyatta as the third.

Although the trio have listed separate other grounds, their common grievance is IEBC’s failure to withdraw the name of NASA presidential candidate Raila Odinga from the ballot paper. Mue and Khalifa aver that IEBC should have called off the exercise after Raila withdrew his candidature.

Constitutional test

“What they did cannot pass the constitutional test of a free, fair and credible election. Everything was done unlawfully, from including candidates who should have not been in the ballot to inflating the voter turnout and using illegal polling centres,” said Julie Soweto, a lawyer to the activists.

The two petitioners say Raila and his NASA running mate Kalonzo Musyoka’s withdrawal automatically rendered the repeat election null and void, and the commission should have called off the exercise.

“The fresh presidential election was already dead based on the withdrawal,” said Soweto.

They also argue that the NASA leaders did not require to formally withdraw by filing form 24A, as there were no nominations, and that the IEBC went ahead to use defective ballot papers having names of candidates who legally withdrew from the contest.

Mwau has petitioned the Supreme Court to invalidate the October 26 repeat presidential election because IEBC “did not comply with the Constitution”.

“The Supreme Court ordered that the fresh elections must be done in accordance with the Constitution and election laws, but IEBC has not complied with that order,” said his lawyer Nicholas Musyoki.

Mwau also pointed out irregularities and illegalities in the October polls, saying none of the presidential candidates qualified due to IEBC’s failure to conduct nominations.

“As a matter of fact, there was no legally recognised presidential candidate for the fresh election. There was no nomination at least 21 days before the election,” he says.

Widespread violence

The petitions  by the activists list the violence that marred the repeat poll as one of the grounds upon which the election of President Kenyatta should be nullified.

“Whereas the Constitution demands that the election be free from violence, intimidation, improper influence and corruption; the repeat poll was characterised by intimidation of electoral officials which could not allow them to conduct a credible exercise,” said Soweto.

They also point at internal wrangles at the IEBC and President Kenyatta’s alleged threats to the Supreme Court.

The wearing of military uniforms by some Jubilee leaders feature in the petition as does the transmission of results and failure of KIEMS kits.

Friday, IEBC submitted to the Supreme Court 266 forms 34B and 37,187 forms 34A. Its lawyers Wambua Kilonzo and Kimani Muhoro also supplied crucial documents containing replies to the applications.

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