Presidential petition: Loopholes that worked against Raila Odinga's case

Azimio one Kenya Coalition Leaders presents Petition Documents at the Supreme Court. [Samson Wire standard] When Azimio leaders Raila Odinga and Martha Karua filed their petition challenging the presidential election on August 22, their volumes of documents promised a bombshell. Raila and Karua were not alone. They had on their side six other petitioners and four commissioners from the Independent Electoral and Boundaries Commission (IEBC), who had also brought tonnes of evidence on the alleged irregularities that compromised the integrity of the presidential polls. However, their lack of strategy and insufficient evidence cost them the Supreme Court battle. The court found that the bulk of the evidence they provided was mere hot air fraudulently obtained from third parties and could not lead to nullification of the presidential election. Unlike in 2017 when Raila and his then-running mate Kalonzo Musyoka had a clear-cut game plan that convinced the Supreme Court to nullify the election of President Uhuru Kenyatta, their case this time lacked the power and convincing evidence to sway the judges. As Justices Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko summed it up, the evidence turned out to be no more than hot air and akin to taking them on a wild goose chase that yielded nothing of probative value. Just like any other case Raila and the other petitioners; John Njoroge, Youth Advocacy Africa, Khelef Khalifa, David Ngari, Okiya Omtatah and Julia Nyokabi had the burden of proving their cases which the judges said they failed to do. "The constitution provides that for an outright win in the Presidential election petition, the party bearing the legal burden of proof must discharge it beyond any reasonable doubt. We find that the petitioners did not discharge the burden of proof as claimed in their petitions," ruled the court. As opposed to the petitioners, IEBC and president-elect Dr William Ruto had a clear rebuttal strategy to buttress any allegation that made their case appear weak and unsustainable. The petitioners' further dented their case by spending too much time trying to prove that IEBC chairman Wafula Chebukati committed electoral fraud and should be barred from holding public office instead of addressing the core issues. At the close of their submissions when the judges took time to ask the petitioners' 26 questions, it appeared that the court had already noted the gaps in their petitions and sought answers that they could not satisfactorily explain. Raila and Karua had anchored their case on discrepancies in transmitted results, infiltration of the electoral commission system to disunity at the commission. Their main argument was that what happened is not just a conspiracy theory or any other ordinary event, but a pattern of constitutional violation to undermine people's authority given that the election was not free, fair, accountable and verifiable. They also argued on the question of 50% plus one threshold, arguing that Dr Ruto's total votes of 7,176,141 did not equate to 50.49% as declared by IEBC Chairman Wafula Chebukati since he based the calculation on wrong voter turnout. They also explained to the court through simulation how some Forms 34A were altered at the polling station and that the IEBC systems had the footprints of a Venezuelan national who had access to the servers. Human rights activists Khelef Khalifa, George Osewe, Ruth Mumbi and Grace Kamau concentrated their arguments on the voter register and that the presidential election was so badly managed that you could not tell the winner. Omtatah, in his case, argued on the point that Dr Ruto did not meet the 50% plus one vote and presented a PowerPoint presentation of his tabulation to show that none of the presidential candidates achieved the threshold. John Njoroge Kamau through Zehrabanu Janmohamed argued that Chebukati committed an electoral offence by failing to ensure that the presidential results were correctly tallied and verified to reflect the people's will. Youth Advocacy Africa and Peter Kirika through lawyer Tom Macharia argued on the issues of voter registration, electronic identification of voters, and the integrity of the technology employed by IEBC while lawyer Kibe Mungai argued that the commission failed to take into consideration, critical workers. The petitioners further banked on the commission's Vice-chairperson Juliana Cherera, commissioners Justus Nyangaya, Francis Wanderi and Irene Masit to support their case of disunity at IEBC and prove that the election was not done in accordance with the constitution. But the judges' verdict on each of the issues they raised showed that they had no clear strategy to convince the court and prove their claims beyond any reasonable doubt. "In the circumstances, we find no reason to believe the evidence provided by the petitioners since all were satisfactorily explained by the respondents and where there was prove, we found that the evidence did not affect the integrity of the presidential election," ruled the judges. The judges argued evidence provided by the petitioners was based on hearsay and third-party evidence, which were inadmissible in court.

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