, NAIROBI, Kenya, Aug 20 – The promulgation of the new Constitution was on Friday thrown into doubt after a case was filed seeking to nullify the results.
Two voters 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 August 4 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 Interim Independent Electoral Commission (IIEC) flouted the law governing the referendum campaigns by failing to restrain the Yes proponents.
President Mwai Kibaki is scheduled to lead the celebration to promulgate the new Constitution on Friday next week.
According to the law, the court must first dispose of such a case before the Interim Independent Electoral Commission can gazette the final results which would allow for the promulgation of the Constitution.
“If a petition is made under section 39 challenging the conduct or result of the referendum within the time limit for making petitions, the result of the referendum shall not be final until all such petitions are finally disposed of,” the Constitution of Kenya Review Act 2008 states.
The applicants have seven days to deposit Sh2 million in the court as security against the costs.
Ms Ariviza has seven days to deposit Sh2 million in the court as security against the costs.
In her application, she wants the court to nullify the referendum results, order a total recount of votes and audit of the electronic tallying software.
A similar application that she lodged at the High Court on Wednesday is challenging a gazette notice published by IIEC saying it purports to be a certificate of results of the referendum yet it does not conform to Schedule 2 of the referendum regulations.
“The notice was not valid as it went ultra vires the form set out in Schedule 2 and did not give the results of the referendum as provided by the law,” her lawyer Judy Madahana had told the High Court on Thursday.
The case before Justice Aggrey Muchelule was supposed to be heard on Friday but it did not proceed after the Attorney General and the IIEC indicated that they were not ready. It has been pushed to Monday.
Ms Ariviza claims that the certificate of the results of the referendum states that the Proposed New Constitution has either been “ratified or not ratified.” The form also has the words results of the referendum and provides space for inserting the figures and words of the results.
She also claims that there was a deliberate attempt by the Interim Independent Electoral Commission (IIEC) and the Attorney General who she has cited as respondents in the case to confuse the public by referring to the new law as the Proposed Constitution under the Constitution of Kenya Review Act 2010 yet the Constitution of Kenya Referendum Regulation 36(1) refers to the Proposed New Constitution.
“This confusion by the respondents raises the question as to which document was put to referendum and therefore which document can be validly promulgated under the published gazette notice 9360,” she said.
“The purported gazette notice is erroneous, contrary to the law and null and void.”
She further says that there have been press reports quoting the chairman of the Committee of Experts, Nzamba Gitonga as having stated that there has been no publication of a valid gazette notice on the final results of the Referendum.