Njonjo Kihuria @PeopleDailyKe
The promulgation of the 2010 constitution opened a litigation deluge that saw Kenyans rushing to court at the slightest excuse. So many were the cases that at one stage in September 2014, former Chief Justice Willy Mutunga called for alternative dispute resolution means saying “there are too many disputes that do not require litigation clogging up the courts”.
But never has the right to legal interpretation been taken up as it has in the run-up to the August 8 General Election, and the fresh presidential election slated for today. Various parties have brought a plethora of cases to the High Court and Supreme Court with the express aim of dogging down the preparation of both elections. Political players have decided to play their game in the courts.
So when the curtain falls on the year 2017, many ‘learned friends’, will have made names and millions of shillings, too. These are the men and women who have had the opportunity to represent various litigants in election-related court cases since the beginning of the year.
The litany of the cases filed on different aspects of the elections of August 8, and the repeat presidential poll initially expected on October 17, but later postponed to October 26, is mind-boggl
ing. Activist Maina Kiai was one of the first to set the ball rolling when he filed a case against the IEBC for allegedly flouting procurement rules in the importation of Biometric Voter Identification (BVR) devices. High Court judge John Mativo dismissed the case. Following in the steps of Maina Kiai, the Bado Mapambano movement went to the High Court seeking to block the use of a back-up system to the electronic alternative by the IEBC.
The movement wanted Section 44 A of the Elections Act declared unconstitutional. Lawyer Willis Otieno also brought a case to the High Court against the IEBC and the Kenya Bureau of Standards (Kebs) claiming that the BVR kits had not been subjected to pre-export verification standards and could therefore, contain ghost voters and aid rigging.
Later National Super Alliance (Nasa) brought a case against the IEBC seeking to have the August 8 General Election postponed, claiming the commission had not installed a back-up to its electronic systems.
The Opposition outfit also filed a case against the printing of ballot papers tender. It lost both cases. Following the declaration of Uhuru Kenyatta as the winner of the August 8 elections, Nasa announced it would not contest the matter in court. However, at the last minute, Raila Odinga and his running mate Kalonzo Musyoka did a flip-flop and petitioned the Supreme Court to overturn Uhuru’s win.
Ultimately, the court declared the poll null and void, citing “irregularities and illegalities” by the IEBC and ordered a fresh presidential election in 60 days. Hot on the heels of this, a voter went to the High Court seeking to have the IEBC barred from transmitting election results electronically during the fresh poll, asserting that such results in the nullified polls could not be verified independently.
Buoyed by the decision of the Supreme Court, Nasa started calling for the prosecution of some IEBC officials, forcing a group of voters from Nakuru to go to court seeking an injunction against the Opposition leaders, who were vocalising calls for criminal litigation of the officials. The Nakuru residents wanted the court to restrain the leaders from interfering with the operations of the electoral body as it planned to conduct a fresh presidential poll on October 17.
The list of cases would not be complete without the one filed by former Kilome MP Harun Mwau seeking to stop IEBC from conducting the October 26 poll, arguing that fresh nominations should be conducted before a fresh election is held. Earlier activist Okiya Omtata had rushed to the High Court seeking the formation of a caretaker government.
Judge John Mativo dismissed the matter, saying he did not have jurisdiction. Then there was a petition filed by Pokot South MP David Pkosing urging the court to force Raila to take part in the October 26 poll, which was also dismissed.
Two days to the poll, three voters went to the Supreme Court seeking the postponement of the fresh presidential poll, claiming the atmosphere is not conducive.
Yesterday (today), the president of the Supreme Court Justice David Maraga put off the case to a date to be announced by the registrar, saying the court did not have quorum. Only Justice Isaac Lenaola and Maraga himself were available.
Earlier yesterday, Justice Odunga, presiding over a case brought by a civil society organisation, said the appointment of returning officers was illegal as the IEBC did not follow regulation 3 of the Election Act. The High Court, however, declined to quash their gazettement.