How IEBC, Uhuru Kenyatta won big battle

Supreme Court judges during the hearing of petitions challenging President Uhuru Kenyatta's win. [File, Standard]

Excellent strategies, top-notch lawyers, grit and detailed response to every allegation raised is what helped the electoral commission and President Uhuru Kenyatta win the Supreme Court battle over the October 26 repeat presidential election.

From the time the petitions by former MP Harun Mwau and human rights activists Njonjo Mue and Khelef Khalifa were filed, it was clear the Independent Electoral and Boundaries Commission and President Kenyatta would go all out to defend the outcome.

In the end, it was their side of the story that convinced Chief Justice David Maraga, his deputy Philomena Mwilu, judges Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola to reach a unanimous decision that the fresh election was done in accordance with the law.

Haunted by being the first commission to have a presidential election annulled on September 1, IEBC went beyond limits to protect its integrity and legacy to ensure there would be no repeat of what happened in the previous petition.

Key issues

It started by restructuring its legal team, where lead lawyers who acted for the commission in August, senior counsel Paul Muite and PLO Lumumba, were replaced with Waweru Gatonye and Kimani Muhoro.

An analysis of the two consolidated petitions showed they revolved around four key issues, which were later expanded to 10 by the Supreme Court judges.

The petitioners prioritised the question of fresh nominations, effect of withdrawal of a presidential candidate, legal consequences of not holding election in all 290 constituencies and whether election was done in accordance with the law. The commission did not leave anything to chance, and brought a massive 27 affidavits sworn by different officials to disapprove and answer each and every question raised by the petitioners regarding credibility of the fresh election.

On holding fresh nominations, the commission satisfactorily convinced the judges that only the outcome of the August 8 presidential election was nullified, and all other processes including nomination of candidates were not cancelled.

Failure to conduct election in 25 constituencies was another big issue the commission navigated successfully and outwitted the petitioners in their claim that it rendered the outcome null and void.

To prove they tried everything possible to have election in those areas, the commission brought in 25 returning officers to explain how the circumstances would not allow them to preside over the election.

Elaborate strategy

“IEBC did not cancel election in those areas but postponed to allow the situation to calm down. In any event, the total votes in those areas could not affect the final outcome announced by the chairman,” said lawyer Kamau Karori.

President Kenyatta on the other hand had an elaborate strategy, with his lawyers carefully dividing roles and each handling different sections of the petitions to answer the allegations raised.

Their response was backed by 13 affidavits sworn by different individuals, including experts in various categories and ordinary voters who were blocked from voting by opposition supporters on October 26.

The President’s legal team was prepared from the beginning, and set out to stop the petitioners from relying on materials filed out of time and inclusion of other parties which would have strengthened the petitioners’ case.

They succeeded in locking out National Super Alliance and frustrated the human rights activists request to audit IEBC election materials, including forms 34A and 34B.

On withdrawal of Raila Odinga and Kalonzo Musyoka from the contest, Uhuru’s lead lawyer Fred Ngatia convinced the judges the NASA candidates did not legally withdraw from the race and only boycotted the exercise.

The final key question was whether the election was done in accordance with the Constitution and applicable electoral laws. Both IEBC and Uhuru convinced the judges that the repeat presidential polls was free, fair, credible and was a true reflection of the people’s will despite the low turnout witnessed during voting.

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