, NAIROBI, Kenya, Nov 16 – Acts of defiance and obstruction by National Super Alliance (NASA) supporters were at the core of oral submissions by the Independent Electoral and Boundaries Commission (IEBC) as the hearing of two presidential election petitions seeking the invalidation of the October 26 presidential poll got underway on Wednesday.
Through lead counsel Kamau Karori, the Commission distanced itself from claims it had unilaterally cancelled the election in 25 constituencies in Nyanza region maintaining that the poll had only been postponed due to violence instigated by NASA supporters whose presidential candidate Raila Odinga had opted out of the race on October 10.
IEBC told the court that NASA supporters barricaded roads leading to polling centres in the affected region making it increasingly difficult to deliver polling materials to those stations.
“The Constitution commands that an election must be conducted within 60 days and the Supreme Court so ordered when it nullified the August 8 presidential election on September 1. That timeline was to lapse by October 31,” Karori told the six-member bench of the apex court.
He explained that the postponement of the election in the 25 constituencies under Section 55 of the Elections Act was limited to a number of factors including the constitutional timeline of sixty days under Article 140 (3).
The Act, Karori stated, gave IEBC the discretion to proceed with the declaration of the vote’s outcome considering that the leading candidate had achieved the threshold set under Article 138 (4), having garnered more than 50 per cent of votes cast in the election and twenty-five per cent of the vote in at least 24 counties.
“The leading candidate had a total of 7.4 million votes whereas the total number of registered voters in the constituencies where polling could not take place was 1.8 million. This meat that even if all the 1.8 million votes were considered and added to the 1st runner-up, at most one would happen is that the percentage of the leading candidate would have reduced from 98 to 79 per cent,” Karori explained.
The Commission further stated that the validity of the Elections Act was not in doubt having been enacted through a parliamentary process set out in Article 82 of the Constitution.
Further, IEBC noted that the said law was passed by both houses of Parliament following a bipartisan process led by the two main political players – Jubilee Party and NASA (then Coalition for Reforms and Democracy) – in June, months before the August 8 General Election.
The Commission also argued that is as much as Article 138 (2) appreciates that a presidential election shall be held in all the constituencies 138 (4) (b) – which requires the winning candidate to secure 25 per cent of votes cast in at least 24 counties – contemplates that the counties shall be the determining factor in declaring the winner of the election.
With regards to the Commission’s failure to trigger fresh nominations following the invalidation of the August presidential election, IEBC lawyers who included Kimani Muhoro, Mahat Somane, Erick Gumbo ad Lucy Kambuni, argued that the election under Article 140 does not warrant fresh nominations.
The lawyers argued that no segment of the Article (140) makes reference to nominations apart from stating that a fresh poll shall be held within 60 days following the annulment of an election.
On Raila Odinga’s boycott of the election, IEBC submitted that it could not be that the entry of a candidate in a presidential contest is regulated and the exit from the same is unregulated.
The Commission held that Odinga’s withdrawal remained inadmissible until such a time he duly filed the requisite statutory document – Form 24A – officially tendering his withdrawal.
Prior to the IEBC submissions, the Justice David Maraga-led court heard from lawyers litigating in the two petitions; one filed by former Kilome lawmaker Harun Mwau and the other jointly filed by activists Njonjo Mue and Khelef Khalifa.
In their submissions, lawyers representing Mwau argued that the election should be nullified as a result of the electoral agency’s failure to conduct nominations.
Mwau’s lawyer George Ouma stated that election regulations allow nominations to be conducted 21 days to the election hence IEBC had adequate time to permit candidates and parties top tender the same.
“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,” Ouma stated in court.
CJ 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.
Lawyers prosecuting the Mue-Khalifa petition were also put to task by the court 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 Uhuru 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.
The court resumes at 9 am Thursday to hear submissions from President Kenyatta’s lawyers and interested parties.
CJ Maraga, Deputy CJ Philomena Mwilu, Justices Ojwang’, Smokin Wanjala, Isaac Lenaola and Lady Justice Njoki Ndung’u have until Monday to render a verdict on the petitions.
If the election is upheld, President Kenyatta will be sworn in the first Tuesday following seven days of the court’s decision – November 28 – according to Article 141 (2) (b).
If the court invalidates the election, the country will go back to the ballot in 60 days to elect its leader in accordance with Article 140 (3).