Lawyers urge Supreme Court to annul repeat election

Lawyer for various parties at the Supreme Court on November 15, 2017 during proceedings of petitions seeking to nullify the October 26 repeat poll. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Lawyer Kimani Muhoro said Mr Chebukati operated under extremely difficult circumstances.
  • They want the court to determine whether the election was credible without fresh nominations.

Widespread violence, poor voter turnout and failure to adhere to Constitution provisions were yesterday cited as grounds on which Supreme Court judges should annul the re-election of President Uhuru Kenyatta in the October 26 fresh poll.

On the first day of hearing, the three petitioners — Mr Haroun Mwau, Mr Njonjo Mue and Khelef Khalifa — argued that the election was conducted by a partisan electoral body in an environment that did not give all Kenyans the opportunity to exercise their free will.

FRESH POLL

The three petitioners want the court to consider whether the repeat poll met the test of universal suffrage, whether it was conducted by an independent body, and if it was marred by irregularities.

They further want the court to determine the constitutionality of Section 83 of  the amended Elections Act and whether the Independent Electoral and Boundaries Commission (IEBC) should have proceeded with the fresh poll, considering the prevailing circumstances.

Finally, they want the court to determine whether the election was credible without fresh nominations.

Lawyers for the commission, however, countered that the electoral body tightened procedures on the technology side, transferred staff, set up a new project team, involved all stakeholders and adopted a policy of transparency in its bid to avoid the loopholes that resulted in the cancellation of the election.

In his submission, Mr Mwau, through lawyer Benjamin Musyoki, argued that the October 26 election had been undermined by failure by IEBC to order political parties to carry out nominations of their candidates.

NOMINATIONS

“Nominations are an essential part of all elections, without which we cannot deem to have a free, fair and credible election. It is nominations that trigger an election. You can’t start a presidential poll without nominations,” he said.

He argued that elections are not events but processes which could only be triggered by nominations. “In situations where only one candidate is nominated, they are declared winners in an election contest,” he said.

He further said that Article 138 of the Constitution declares that all ballots shall contain names of validly nominated candidates, making the nomination process an “essential election requirement”.

In defence, IEBC lawyer Waweru Gatonye, who was brought in to lead the reconstituted team of lawyers, started off the defence of the Independent Electoral and Boundaries Commission by telling the judges: “There is no perfect election anywhere.”

Mr Karori Kamau, one of IEBC’s lawyers, said that with the violence in 25 constituencies and a November 1 deadline to hold the election, the IEBC was operating in unprecedented circumstances.

“We were operating in very unique circumstances. It is the first time a (presidential) election has been nullified. It is the first time we are operating in a circumstance where such a decision (to postpone an election) has been made,” he said.

CHEBUKATI

Mahat Somane, who explained the process on the day of the election and the technological aspects and the systems put in place to ensure the process is not compromised, said the performance this time was excellent. “In August we got an F. We believe that with the re-sit, we passed with flying colours. We got an A-plus,” he said.

“It is called A stand,” said Chief Justice David Maraga.

Lawyer Kimani Muhoro said Mr Chebukati operated under extremely difficult circumstances but continued “to hang on” until the election was held.

He said in Mr Chebukati’s understanding, the court ordered a re-match of the eight candidates when it nullified the August 8 presidential poll.

But Mr Musyoki further questioned the decision to allow UDP candidate Cyrus Jirongo to contest after the IEBC, in its initial Gazette notice, had omitted his name on grounds of bankruptcy and the fact that the first batch of presidential ballots arrived from the Dubai printer before Mr Jirongo had been cleared by the Court of Appeal.

He cited Article 138 of the Constitution, which he said identifies candidates who should have participated in the fresh poll, and noted that IEBC’s conduct had lowered the threshold required in such elections.

NULL AND VOID

“If the election of either MCA, senator, MP or even governor is nullified by court, we have always gone back to fresh nominations,” he said.
He asked the court to revisit its order of September 1 when it nullified the outcome of the August 8 presidential poll and explain what it meant by fresh poll.

He argued that the September 1 judgment had declared null and void the outcome of the August presidential poll, which created a vacancy in the office of President.

Accordingly, Mr Musyoki noted that the October 26 election was not a continuation of the August 8 election but a fresh process.

Lawyers for Mr Mue and Khalifa, who are designated as second and third petitioners, told the six judges that the country is looking up to them as “the last barrier before we plunge into an abyss”.

Ms Julie Soweto said the people will also be keen to see whether they will uphold the rule of law or whether they will apologise to Kenyans for having invalidated the August 8 presidential election.

Reports by Sam Kiplagat, Maureen Kakah and Ibrahim Oruko