NAIROBI; KENYA: History is in the making on Saturday as Kenya’s most powerful Bench prepares to rule on three petitions over the March 4 presidential election.
The six judges will decide whether to uphold or invalidate the outcome of the election, sending President-elect Uhuru Kenyatta to State House or back to the ballot box.
Millions of Kenyans, Africans and others in the international community, will today be watching the Supreme Court as it makes this landmark decision. This is the first presidential petition in Kenya’s history to be heard and determined on issues and evidence. Previous ones were dismissed on technicalities.
The six Supreme Court judges on Friday heard final remarks from petitioners and respondents on a partial re-tallying carried out this week. The check found ten of 18,000 Forms 34 requested were missing. There were also errors in tallies on some Forms 34 (presidential election totals from polling streams) and aggregates on Forms 36 (from all polling centres). These issues roused heated debate on whether they prove the election was flawed.
The ruling will be the culmination of a tight week of sittings to hear arguments on the issues in the petitions, two of which seek nullification of the outcome.
CORD candidate Raila Odinga filed the main petition arguing Uhuru, the Jubilee Alliance candidate, was declared winner in an election marred by fraud. The Prime Minister is challenging virtually everything from the purchase of electronic equipment, to registration of voters, actual voting, transmission of results, and tallying at the National Tallying Centre, at Bomas of Kenya.
He wants the entire process invalidated and fresh elections held. He also wants Independent Electoral and Boundaries Commission (IEBC) commissioners held legally accountable for electoral offences.
A second petition by civil society activists linked to Africog also seeks to have the election invalidated over irregularities. A third, by a Jubilee activist and two others, seeks an opinion on whether rejected votes should count in the election.
The IEBC, its chairman Issack Hassan, Uhuru and Deputy President-elect William Ruto have dismissed the petitions as “self-seeking” and urged the court to ignore “clerical errors” and uphold the outcome of the elections.
Phones on
Even as the Six Supreme Court judges closed the proceedings on Friday, they could not estimate when they would deliver the judgement.
“Keep your phones on because you don’t know when we will summon you,” Court president and Chief Justice Willy Mutunga told lawyers for all parties. The court had just five days to hear and determine the consolidated petitions after holding a pre-trial conference on Monday. Due to time constraints, the judges are expected to deliver a brief judgement going straight to their declarations and then issue detailed reasons later as allowed by the law.
On Tuesday, the judges pronounced the only four issues they would be determining today and asked the lawyers to use all means to support or defend their cases on these matters.
One issue is whether Uhuru and Ruto were validly elected and constitutionally declared winners by IEBC. The other issue is whether the presidential election was free, fair and transparent, and whether it was in compliance with the Constitution and all other relevant laws.
The third issue is whether rejected votes should be included in determining the final tally of votes in favour of each candidate and the fourth is which of the orders sought the court can issue.
The judges also set aside 15 hours spread in two days within which to hear all the oral submissions. Lawyers had to keep strictly to allocated timelines watched from two digital clocks in the courtroom. The lawyers opted not to call any of the witnesses who had filed dozens of affidavits either in support of in rebuttal of the petitions.
The court also imitated its own scrutiny of all the Forms 34 and 36 used in the presidential elections and re-tallying of results on 22 out of 33,400 polling stations. Reports of the exercise were submitted in court on Friday.
Petitioners argued that the reports had satisfied their claims that the elections were not free and fair. But the respondents said discrepancies disclosed had been explained in their submissions or were “clerical error”.
The main contention revolves around the voter register, which some petitioners say was inflated by the IEBC in favour of the President-elect.
They claim that more people were registered after the closure of the registration deadline on December 18, last year. The commission, however, argues that it prepared a special register for those whose biometric data could not be captured by the BVR kits for various reasons. This register had over 36,000 persons whose constitutional right to vote could not be breached.
Lawyers were in agreement that if the voter register were defective, the declaration would affect all other elections of county representative, women representative, members of the Senate, National Assembly and the governors.
Constitutional crisis
Lawyers for respondents claimed the orders sought would throw the country into a constitutional crisis. This is because the register was used to conduct elections for all the other candidates for other positions.
On Friday Mutunga said the judges were happy with what had come from the lawyers.
“I can say our Bar is one of the best,” he remarked at the close of the proceedings. “You have really helped us a lot.”