Issues in past cases likely to feature in Azimio's Supreme Court petition

A repeat presidential election held on October 26, 2017, and boycotted by Raila, yielded to a third petition in which the court upheld the outcome of the poll, paving the way for the swearing in of Uhuru for his second and final term in office.

With the ODM leader out, the third petition was filed by civil society organisations, which were dissatisfied with the manner in which IEBC conducted the poll.

However, despite the Supreme Court's effort to settle contentious issues related to conduct of presidential elections in the last 10 years, two things have remained constant in these petitions: Raila as a petitioner, and the issues that are canvassed at every election cycle.

The content of the petition Azimio is planning to file remains scanty, but one can readily guess the issues it will canvass and the prayers it will seek in its push to overturn the decision by IEBC Chairman Wafula Chebukati to declare Ruto as the winner of the poll.

Issues that have been canvassed at the court in the last three petitions range from agents being denied access to polling stations and tallying centres despite having letters of appointments, fake statutory result transmission forms, inflated and even questionable voter turnout in some areas, discrepancies of votes cast in the presidential vote compared to the other five elective seats and the authenticity of some result declaration forms uploaded on the IEBC portal.

Others issues are hacking of IEBC systems, unrealistic voter turnout and unstamped ballots and statutory results declaration forms.

Serious indictment

Nairobi-based lawyer Joram Omufwoko, argues that the fact that the Supreme Court is called upon to adjudicate the same issues is a serious indictment to the conduct of the electoral commission, whose mandate is to conduct free and fair polls.

"IEBC has never complied with the diktats of the Supreme Court or any other election court," says the lawyer, pointing out that the commission has never enforced the recommendations of the Kriegler Commission that investigated the disputed 2007 presidential election.

"The commission never enforces law or the decisions of the court to the satisfaction of all the parties. Allegations of corruption in the procurement of election materials are common in the commission, it operates under a cloud of opaqueness to the extent that its communication strategy is dead," says Mr Omufwoko.

Similar concerns were expressed by Evans Lempaa, an advocate of the High Court, pointing out that the commission has miserably failed Kenyans.

"In its history of existence, IEBC has never managed an election that can be adjudged fair. The story of the commission is about lethargy, laxity and lack of adherence to the basic tenets of the law," says Lempaa, citing the reigns of the late Samuel Kivuitu, Issack Hassan and Chebukati.

While he insists the challenge bedeviling the commission is part of the larger malaise afflicting Chapter 15 constitutional institutions, IEBC is unique because it appears to create controversy at every election cycle by conducting a poll that does not satisfy or meet the required standards.