Kenyans go to a fresh presidential election today after the Supreme Court failed to raise a quorum to decide on an application by three voters who were seeking to have the poll postponed.
Chief Justice David Maraga said only he and Justice Isaac Lenaola were available to hear the application, saying Lady Justice Njoki Ndung’u was out of Nairobi and could not find a return flight in time while Justices Smokin Wanjala and Jackton Ojwang were unable to attend court. Deputy Chief Justice Philomena Mwilu also chose to stay away, probably after the shooting of her bodyguard on Tuesday evening, while Justice Mohammed Ibrahim is out of the country for treatment.
Yesterday’s happenings added to the intrigues that have dogged one of the most contentious political periods in the country’s history. Besides the historic nullification of a presidential results on September 1 by the Justice Maraga-led, Bench, the petitioner and main opponent of President Uhuru Kenyatta, Nasa leader Raila Odinga, has since withdrawn from the subsequent re-run citing inability by the Independent Electoral and Boundaries Commission (IEBC) to undertake a credible process.
This followed IEBC’s failure to meet some of the “irreducible demands” the Opposition laid before it and which “were necessary to cure illegalities and irregularities” but which both Jubilee and the electoral agency termed impossible to implement.
The Wafula Chebukati-led commission, unfazed, has moved on with the process, procuring ballot papers and training polling staff irrespective of street protests and hostile reception in some areas.
And on Tuesday, the government took the unprecedented decision to declare two consecutive days as public holidays to allow Kenyans to travel and take part in the election.
However, Maraga took the decision to allow courts that were hearing matters relating to today’s election to sit and make determinations on the same. The first to make a ruling was High Court Judge John Mativo who dismissed an application by Kandara MP Alice Wahome, saying the right to vote and the right to demonstrate are guaranteed by the Constitution and must be balanced.
Second was High Court Judge George Odunga who provided a leeway for any aggrieved party to challenge the outcome of the re-run when he ruled that the gazettement of IEBC Returning Officers and their deputies by IEBC on October 12 was illegal.
He said the electoral agency did not provide a list of proposed persons to political parties and independent candidates at least 14 days prior to the proposed day of appointment to enable them make any representation, which was in violation of Regulation 3(2). Opinion was, however, divided on the immediate impact of the verdict.
While IEBC lawyer Paul Muite was clear that Justice Odunga affirmed that the election will proceed as scheduled, Nasa’s James Orengo said the decision effectively meant that there will be no officers to legitimately oversee thel process. IEBC, however, insisted the officers will conduct the fresh election.
“The order sought before Justice Odunga was for the cancellation of the appointment of returning officers and their deputies, which has been declined,” the commisssion tweeted. But all eyes were on the Supreme Court where International Commission of Jurists (ICJ) executive director Samwel Mohochi, Muslim for Human Rights (Muhuri) and Nahashon Kamau, through lawyer Haroun Ndubi, were seeking to have the fresh election put off, arguing IEBC and its chairman were unprepared to conduct a free, fair and credible election.
The application further exposed divisions within the electoral agency as Chebukati, who had been listed as the second respondent, failed to file a response. Instead, it was vice chairperson Connie Maina who formally opposed the application.
There were indications that Chebukati was mulling filing an affidavit supporting the application after majority commissioners overruled his earlier bid to seek a Supreme Court advisory opinion following Raila’s withdrawal from the race.
The commissioners argued Raila had not formally withdrawn as he had not filed the requisite Form 24A. Chebukati was also seeking to have President Uhuru and Raila dialogue to create a smooth environment for the conduct of the fresh election but his efforts failed.
Instead, he met the two separately and they stuck to their hardline positions. It still remains to be seen if the chairman will see the process through following his veiled threat to resign during a press conference last week after commissioner Roselyn Akombe quit citing political interference and security threats.
Since he met President Uhuru on Monday, Chebukati has been operating as a lone ranger leaving observers confused on his next move. Raila was also set to announce the way forward at a rally at Uhuru Park, Nairobi, though on Tuesday, he told the BBC he had asked his supporters not to take to the streets on Election Day.