NAIROBI, Kenya, Aug 25 – The Attorney General and the Interim Independent Electoral Commission (IIEC) want the Interim Independent Constitutional Dispute Resolution Court to dismiss a petition that seeks to stop the promulgation of the new Constitution on Friday for lack of valid grounds upon which scrutiny or recount of the nine million votes cast during the referendum exercise should be ordered.
The five judge bench will on Thursday determine whether the historic event should be temporarily put on hold pending the determination of the petition by two people challenging the conduct and results of the Constitution referendum held on August 4.
Mary Ariviza and Okotch Mondoh moved to the Interim Independent Constitutional Dispute Resolution Court seeking a recount and scrutiny of all vote cast in the referendum.
They also want an independent audit of software that was used to transmit and tally the results claiming they may have been interfered with.
Ms Ariviza and Mr Mondoh claim that the IIEC flouted the law governing the referendum campaigns by failing to restrain the Yes proponents.
The IIEC and AG through lawyers Pheroze Nowrojee and Wanjiku Mbiu respectively asked the court to strike the suit arguing the latter has been overtaken by events following the publication of the final results in the Kenya Gazette on Monday.
“Certificate of the final results having been published, the period of automatic promulgation has begun and this petition has been overtaken by events of the petitioners own making,\’\’ they submitted.
They added: “We urge the court to find this as total mischief and bad faith on part of the applicant,\’\’ they argued.
The advocates contended that there is no law that enables the promulgation period to be halted or suspended.
They accused Ms Ariviza through lawyer Judy Madahana of using the court for extraneous purposes to stop promulgation of the new laws because on Tuesday, a similar application was dismissed by the High Court for lack of jurisdiction.
They claimed there is no petition that should be heard as the petitioner was yet to deposit Sh2 million by yesterday as security against costs of the suit.
It was their argument further that the petitioner failed to serve them with the petition within 14 days which lapsed on Friday upon which an aggrieved party ought to file and serve notice of the case.
However Madahana urged the court to find that her client has an arguable case claiming there was an attempt to serve the IIEC last Friday but officials who were to receive the petition were in Mombasa.
She claimed the IIEC did not wait for the14 day period to lapse before publishing the final results of the referendum on Monday.
“The 14 day period lapsed on Monday so the IIEC ought to have published the referendum results on Tuesday,\’\’ she said.
She added: “I urge this court to fast track this matter as it is urgent. It should therefore do justice by granting the prayers the petitioner is seeking as this is the final court.\’\’