“The court has unanimously determined that the petitions are not merited”/MOSES MUOKI
NAIROBI, Kenya, Nov 20 – The Supreme Court has upheld President Uhuru Kenyatta’s victory in the October 26 presidential poll, paving way for his swearing-in for a second term on Tuesday next week.
In a ruling delivered by a six-member bench, the judges declined to grant prayers by two petitioners seeking the nullification of the election on grounds that it was not conducted in accordance with the Constitution.
“The court has unanimously determined that the petitions are not merited and the final orders are that the petition by John Harun Mwau versus the Independent Electoral and Boundaries Commission and two others as consolidated is hereby dismissed.
“The petition by Njonjo Mue and another versus the Chairperson of the Independent Electoral and Boundaries Commission and three others as consolidated is also hereby dismissed. As a consequence, the presidential election of October 26 is hereby upheld as is the election of Uhuru Kenyatta.”
On September 1, the apex court rendered a historical ruling in which it invalidated the initial August 8 presidential election – a first of its kind on the African continent – that was won by President Kenyatta following a petition filed by Kenyatta’s main challenger Raila Odinga and his running mate Kalonzo Musyoka.
Odinga and Musyoka told the court at the time that the entire electoral process was fatally compromised stating that unauthorised persons accessed the Independent Electoral and Boundaries Commission’s (IEBC) results processing servers and altered results.
The court, under the leadership of Chief Justice David Maraga, found illegalities and irregularities during the conduct of the election ordering for a fresh exercise within 60 days in accordance to Article 140(3) of the Constitution.
Following the ruling, President Kenyatta reverted back to campaigns even as he protested the outcome accusing the Supreme Court of discarding the will of the people on account of technicalities in electronic transmission of results.
The IEBC initially gazetted Kenyatta and Odinga to be the only candidates for a fresh election which was initially scheduled for October 17 but later moved to October 26 to allow more time to prepare for the poll.
IEBC was later compelled to issue an addendum to its initial notice following a High Court ruling on October 11 in which Justice John Mativo allowed Ekuru Aukot, the Thirdway Alliance presidential candidate in the annulled election to be enjoined in the fresh poll.
Justice Mativo’s ruling was equally interpreted to wit that all the other candidates who contested in the August election had a right to be included on the ballot.
The electoral agency retained its addendum including all the eight presidential candidates in the annulled poll despite Odinga’s announced withdrawal from the election a day before the Mativo judgment on October 10.
But the failure by IEBC to conduct fresh nominations before last month’s poll formed the basis of arguments in court as petitioners told the judges that none of the candidates who took part in the election would have been qualified to be declared the winner since none of them had been duly nominated for the election.
IEBC and President Kenyatta’s legal counsels, however, refuted the assertions arguing that there was no provision for fresh nominations and in fact, the only aspect of the August election the court had invalidated was the election and not the primaries.
Fred Ngatia, President Kenyatta’s lead counsel submitted before the court that last month’s election, having been ordered and conducted under Article 140(3) of the Constitution, required no fresh nominations to be conducted as stated by the petitioners.
Ngatia also pleaded with the court to resist an invitation to invalidate the election on account of violence sponsored by a political prayer (Odinga) and his National Super Alliance (NASA) which made it impossible for IEBC to proceed with the election in 25 constituencies in Nyanza arguing that doing so would be tantamount to giving an incentive – a perverse incentive for that matter – to NASA.
The end result, Ngatia said, was to delegitimise a democratic process ordered by the Supreme Court when it nullified the August 8 presidential election.
“Regrettably, through localised insurgency, a state of unprecedented insecurity was experienced in the region and those who didn’t want to vote (NASA) became the beneficiaries of that mayhem,” Ngatia submitted before the top court in the land on Thursday ahead of the closure of hearing of the two consolidated petitions.
“Can our apex court allow localised insurgencies to be grounds for invalidation of a contest?” he asked.
Ngatia argued that an annulment of the election would encourage those unwilling to respect the democratic outcome of an election to wreak havoc during polling in an effort to have the election invalidated by a court of law.
“Could a Member of the County Assembly, for example, ensure that in certain areas in a ward no elections take place and then approach the court and say there were pockets where an election was not held?” Ngatia posed.
Lawyer Ahmednasir Abdullahi added his voice into Ngatia’s submission by telling the court that the petitions before the court lacked locus standi having to warrant nullification.
Abdullahi wondered if petitioners who in their own admissions before the court contend that there was no election can purport to challenge the outcome of the very election they do not recognise and did not take part in.
In its submissions, IEBC defended its inability to hold the election in 25 constituencies saying violence occasioned by NASA protests which saw roads blockaded made it impossible to manage the election in the region.
Through lead counsel Kamau Karori, the Commission distanced itself from claims it had unilaterally cancelled the election in the 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.
“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 25 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 first 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.
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).
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