, NAIROBI, Kenya, Nov 15 – Failure by the Independent Electoral and Boundaries Commission (IEBC) to allow fresh nominations ahead of last month’s presidential election dominated oral submissions Wednesday by lawyers representing former Kilome MP Harun Mwau in a petition seeking an annulment of the election.
According to Mwau’s legal team, the nominations held before the August 8 presidential election annulled by the Supreme Court on September 1 could not have been relied upon in the conduct of the October 26 presidential election since the court had ordered for a fresh exercise.
The petitioner further argued that IEBC had adequate time to receive fresh nominations having been directed by the court to conduct a fresh poll within 60 days.
The petitioner further submitted in court that it would have been possible to receive fresh nominations since election regulations allow nominations to be submitted 21 days to an election.
“No candidate was nominated for the election on October 26. We’ve looked at the annexures of the third respondent (President Uhuru Kenyatta) and what they have annexed the certificate of nomination for August 8. That nomination expired upon the close of the poll the same day,” one of Mwau’s lawyer George Ouma argued.
Chief Justice David Maraga, however, put the petitioner to task asking him to lay an authority before the court confirming that the pre-August 8 nominations had indeed expired.
“Can you give me an authority to the effect that that (August 8) nomination expired?” Justice Maraga asked.
“I don’t have an authority at hand but the authority we have is that before we can go to the electoral contest, people must be nominated as an express requirement of Article 138 of the Constitution,” Ouma responded.
“The issue here is the candidates who participated in the October 26 election were nominated for election on August 8. You argue that that nomination expired. What I want is an authority for the fact that that nomination expired and that they needed to go for a fresh election,” Justice Maraga pressed.
Ouma conceded his argument after efforts to link it to an authority proved futile.
In the Njonjo Mue and Khelef Khalifa petition, lawyers representing the two activists were put to task to prove the veracity of a letter former IEBC Commissioner Roselyn Akombe wrote following her resignation a week to the election.
Lawyer Julie Soweto asserted that in the said letter, Commissioner Akombe acknowledged that the commission was under siege and therefore unable to operate independently.
“The letter by Commissioner Akombe was a clear statement of the presence of violence affecting the Commission’s mandate,” Soweto submitted.
Justice Jackton Ojwang’ however challenged Soweto to vouch for the statement putting to question the medium through which the said later was relayed.
“Through what medium is this coming because of that media determines veracity? That is the basic law of evidence,” Justice Ojwang’ stated.
“Can you vouch at to the validity and veracity of that statement yourself without the owner itself (the one who pronounced it) speaking on it,” Justice Ojwang’ further asked.
President Kenyatta’s legal team at some point ventilated into the matter with Ahmednasir Abdullahi objecting that whereas the statement by Akombe may not be in dispute, it cannot be admitted in court save through a sworn affidavit or any other proper channel.
Soweto defended her position stating that IEBC Chairperson Wafula Chebukati owned up to the statement during a State of Election Preparedness Address he issued a week to the election.
During the hearing, Lady Justice Njoki Ndung’u also asked the lawyers representing Mue and Khalifa to speak to the rights of those who voted visa vie the right of t6hose who boycotted the election.
Lady Justice Ndung’u noted that the two rights went hand in hand.
The Supreme Court will resume Wednesday evening to hear oral submissions from respondents in the two petitions.
Other judges making up the bench are Deputy CJ Philomena Mwilu, Justices Smokin Wanjala and Isaac Lenaola.