Paul Muhoho @PeopleDailyKe The Supreme Court has set the threshold for challenging presidential elections high, by rejecting all the key points raised by petitioners who challenged the October 26 election of President Uhuru Kenyatta in a repeat poll.
Uhuru’s re-election was conducted in a free, fair and transparent manner and the outcome was legitimate and credible, the Supreme Court ruled yesterday, negating all the arguments raised by the petitioners.
The ruling is bound to raise the bar high for petitioners who may in future want to challenge a presidential election, given the clear dissection by the judges who isolated prayers made by the petitioners and explained why they could not be granted.
Even the main bones of contention, that the repeat election did not happen in all the 290 constituencies and that fresh nominations should have been conducted for all candidates, were stripped bare of substance by the judges.
Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and justices Njoki Ndung’u, Jacton Ojwang, Smoking Wanjala and Isaac Lenaola had all been in agreement in their verdict and read the joint full judgment alternately.
Justice Mohamed Ibrahim who has been indisposed did not take part in the petition. The repeat poll, which was marked by low voter turn-out and widespread violence in some parts of the country, met the constitutional threshold under Article 81 of the Constitution, the epic bench said in their full reasoned judgment.
The court emphasised that the purported withdrawal of National Super Alliance (Nasa) flag-bearer, Raila Odinga and his running-mate Kalonzo Musyoka from the polls on October 10 was of no legal effect since they did not fulfill the requisite procedure for pulling out. The judges also affirmed that fresh nomination of candidates was not required for the polls.
The voluntary boycott by the two could not trigger a fresh election since the race was open to other previous contestants, the court said. The Constitution and the Elections Act do not contemplate boycotts and the only leeway for an aggrieved contestant to quit the race is by formally informing the Independent Election and Boundaries Commission (IEBC) in the prescribed form (24A) three days after the nominations, the court held.
The formal protest letter sent by Raila to the IEBC merely signaled his intention not to participate in the repeat election, citing massive irregularities, since there was no room for any of the candidates to skip the poll, the court said.
The court had nullified the presidential election conducted on August 8 and directed the national elections agency to repeat the exercise within 90 days. The seven candidates whose candidature had been sanctioned by the IEBC between May 18 and 19 automatically qualified to contest in the October 26 repeat election.
The court threw out assertions by three petitioners, businessman-cum-politician John Harun Mwau and civil rights activists Njonjo Mue and Khelef Khalifa, that the IEBC should have conducted fresh nominations for the repeat poll.
Those who had participated in the August 8 election qualified for the October 26 poll, including former Lugari Member of Parliament, Cyrus Jirongo, who survived a bankruptcy order. The court dismissed accusations by the petitioners that IEBC was not impartial, independent and competent to handle the presidential poll.
The nullification of the August 8 election was based on irregularities involving the transmission of the electronic results and the agency was required to comply with the court’s direction to handle the repeat exercise in a responsible manner, the judges observed.
They observed that the opposition coalition’s decision to boycott the poll resulted in violent demonstrations in Nasa strongholds, making it impossible for the IEBC officials to conduct elections in 25 constituencies.
However, the overall outcome of the election was not adversely affected by the number of registered voters in the affected areas, the court said. The court, presided over by Justice Maraga, poured cold water on claims by the petitioners that Jubilee Party mandarins had intimidated top judicial officers through inflammatory political statements.
It was also futile to make unsubstantiated claims that Jubilee Party had recruited political fanatics in military gear to unleash terror on anyone who did not support its presidential candidate, the court found. Further, the court dismissed claims that the poll was a sham on account of irregularities following the unlawful appointment of returning officers and their deputies.
The decision by High Court Judge George Odunga to that effect, on the eve of the repeat election, had been suspended by the Court of Appeal later the same day and is yet to b determined.
The court said the IEBC officials legitimately undertook their mandate and there was no validity in claims by the petitioners that they lacked authority to preside over the election. There was no evidence tendered that dead and unqualified persons were deemed to have voted or that voters had been denied an opportunity to exercise their democratic rights, the Judges said.
The court trashed assertions by the petitioners that the national voter register was tampered with and reiterated that an international audit firm, KPMG had conducted a forensic inspection shortly before the August 8 elections.
Further, the voters roll was subjected to periodic clean-up by IEBC staffers to ensure its systems were available for public scrutiny. The Judges said they were satisfied that the petitioners had failed to discharge their burden of proof on all the serious allegations they had raised against the IEBC and chairman Wafula Chebukati.
In an interesting twist, Justice Njoki once again gave a dissenting opinion on the validity of the new regulations contained in the Election Laws (Amendment) Act, 2017 that were recently passed by Parliament during the heated campaign period.
She said the regulations applied in the petition challenging the October 26 presidential election petition. However, Maraga, Mwilu and Ojwang’, Wanjala and Lenaola were categorical that the applicable law is the Elections Act 2011.