Paul Muhoho and George Kebaso @PeopleDailyKe
The battle lines are drawn after President Uhuru Kenyatta, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Wafula Chebukati dismissed as untenable the three election petitions challenging the outcome of the October 26 repeat presidential poll.
The three respondents yesterday filed their responses at the Supreme Court and asked the six-member bench—Justice Mohamed Ibrahim is still indisposed—to dismiss the petitions filed by former Kilome Member of Parliament Harun Mwau and two civil rights activists Khelef Khalif and Njonjo Mue. The National Super Alliance (Nasa) also filed a response in support of the petitioners, but differing with sections that are critical of its presidential candidate Raila Odinga.
President Uhuru’s legal team lodged comprehensive submissions, accompanied by 10 affidavits, explaining that the national elections agency conducted the repeat exercise in strict compliance with directives made by the Supreme Court when it invalidated the August 8 election.
IEBC, through veteran lawyer Waweru Gatonye, explained that it was practically impossible to have conducted fresh nomination of candidates within the 60-day deadline. “The fresh presidential election, under Article 140 (3) of the Constitution, was built on the foundations of the invalidated election,” he says in court papers.
The electoral agency, which called for the dismissal of the petitions, argues that it was neither incompetent nor negligent in its handling of the repeat exercise and none of the candidates was discriminated against or prejudiced by the mechanisms put in place. IEBC and its chairman gave a chronology of events after the court nullified the August 8 poll by a 4/2 majority and said it was satisfied the October 26 exercise was credible and verifiable.
The agency has asked the highest court in the land to uphold President Uhuru’s victory on the basis that he was validly elected in a free, fair and transparent election.
It invites the court to determine three sticking points raised by the petitioners. Whether a presidential election under Article 140 (3) of the Constitution is a process that must start from nominations, who should be eligible candidates for the fresh election and whether the October 26 poll was valid.
On his part, President Uhuru maintains there was no requirement for political parties to conduct fresh nomination of presidential candidates. He had been validly nominated to participate in the August 8 and October 26 polls, the Jubilee Party flag-bearer explains in court papers.
“There are constitutional, statutory and judicial pronouncements that leave no shadow of doubt that nominations are not required during a fresh presidential election,” President Uhuru argues, adding that he was in possession of a valid nomination certificate and his name was formally gazetted by the national elections agency.
Any person who was aggrieved by the manner in which political parties had settled for their presidential candidate was at liberty to seek redress in alternative avenues before the polls were conducted, President Uhuru says. Further, the Supreme Court had no power to adjudicate on party primaries long after the presidential elections had been concluded, he said.
On its part, Nasa through the head of its presidential campaign Musalia Mudavadi has listed issues it wants the Supreme Court to consider to nullify the October 26 repeat presidential election. Nasa, in its response, has stated that it “supports the petition in total save for the specific and particular allegations made against the 4th respondent, its principals or agents.”
In a replying affidavit he filed at the Supreme Court last evening—just before the 5pm deadline for filing responses to a petition seeking to nullify the election—Mudavadi accuses the Jubilee Party presidential candidate, Uhuru of employing illegal electoral tactics to win the election. Mudavadi argues that such tactics could have been the reason Nasa’s presidential candidate Raila Odinga pulled out of the race.