, NAIROBI, Kenya, Nov 16 – The Supreme Court has concluded the hearing of presidential petitions challenging the validity of the October 26 presidential election.
The closure of the hearings on Thursday evening followed two days of oral submissions during which petitioners, respondents and interested parties made submissions before the court.
Chief Justice David Maraga said the six-judge bench of the court will convene on Monday to render a ruling and thanked parties in the matter for conducting themselves with decorum.
“We want to thank you for your courtesy to each other and the court except for a few remarks here and there and we want to encourage this kind of conduct to be continued,” Justice Maraga remarked in concluding remarks on behalf of Deputy CJ Philomena Mwilu, Lady Justice Njoki Ndung’u, Justices Jackton Ojwang’, Isaac Lenaola and Smokin Wanjala.
Justice Mohammed Ibrahim has been away on account of ill-health since the court begun hearing the petitions.
Justice Ibrahim fell sick midstream the August 8 presidential election petition which resulted in the nullification of the election and an order that the Independent Electoral and Boundaries Commission organize a fresh poll within 60 days.
The court in a majority ruling of four against two dissenting judges made a finding that the August presidential election was marred by massive illegalities and irregularities.
The court at the time was considering a petition filed by National Super Alliance (NASA) presidential candidate Raila Odinga and his running mate Kalonzo Musyoka who argued the August election had been fatally compromised and infiltrated.
Odinga and Kalonzo did not, however, challenge the October 26 presidential election in court insisting that they could not recognise the election having withdrawn from it on October 10 on account of failure by IEBC to carry account reforms NASA had recommended.
The petitions were filed instead by former Kilome MP Harun Mwau, and activists Njonjo Mue and Khelef Khalifa.
The three petitioners – the former having filed a standalone suit and the latter a joint petition – cited non-adherence to the Constitution as the ground upon which they sought the nullification of President Uhuru Kenyatta’s win in last month’s poll.
Both President Kenyatta and IEBC were listed as respondents in the petitions.
The court enjoined Thirdway Alliance presidential candidate Ekuru Aukot and Attorney General Githu Muigai as interested parties on Tuesday.
During oral submissions at the court on Thursday, President Kenyatta’s lawyers told the bench that violence witnessed in Nyanza during the October 26 presidential election was choreographed by the NASA to intentionally sabotage the poll.
His lead counsel Fred Ngatia told the court the violence was meant to intimidate and scare off potential voters from exercising their democratic right to vote.
The end result, Ngatia said, was to delegitimize a democratic process ordered by the Supreme Court when it nullified the August 8 presidential election.
“Regrettably, through localized 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.
“Can our apex court allow localized 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.
According to Ngatia, nullification of any election on those grounds would be tantamount to giving an incentive – a perverse incentive for that matter.
Ngatia also 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.
He further cited a High Court ruling by Justice John Mativo on October 11 which ordered the inclusion of Thuirway Alliance presidential candidate in the August presidential contest, Ekuru Aukot, and by extension all the other candidates who had taken part in the annulled election.
Despite Odinga’s withdrawal a day before the ruling – October 10 – Ngatia said there could not have been a need for fresh nominations unless President Kenyatta was the only candidate left in the race.
He, however, added that it would have been practically impossible at that time to order for fresh nominations after the only challenger in a presidential race abandons the quest bearing in mind that the electoral commission at the time only had a week to the expiry of the constitutional timeline of sixty days.
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 recognize and did not take part in.
He further submitted that none of the seven candidates challenging President Kenyatta had moved to court to file a complaint on the same.
Elius Mutuma, Aukot’s layers made similar submissions before the court reaffirming the argument that the need for fresh nomination did not arise.
During the session, the Attorney General asked the court to resist an attempt by NASA to subvert the rule of law through political gimmicks.
Githu Muigai said NASA deliberately schemed to stir violence and confusion in Nyanza that affected the conduct of last month’s presidential election despite efforts by the State to guarantee security during the poll.
“If it is alleged that there was violence, we must start with the question who instigated this violence?” he queried.
“It has not been said that the government unleashed police officers to ensure that people do not vote. The opposite is the case,” the AG submitted.
Muigai said NASA was clear that it did not want the election to proceed as planned after which they would challenge the legitimacy of the government through a political process.
He said the electoral body was time bound to conduct the election within sixty days.
The petitioners and IEBC made the oral submission in court on Wednesday.
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 a new leader in accordance with Article 140 (3).