7 November 2017

Kenya: Back to Supreme Court as Two Petitions Challenge Kenyatta's Win

Photo: Raphael Njoroge/The Nation
President Uhuru Kenyatta holds his certificate after he was announced winner of the repeat presidential election at the Bomas of Kenya in Nairobi October 30, 2017.

Nairobi — Three petitioners now want the October 26 fresh presidential election invalidated over what they term as the failure by the Independent Electoral and Boundaries Commission (IEBC) to comply with the Constitution and election statutes in the conduct of the poll.

In two separate petitions filed Monday night before the deadline for challenging the October poll lapsed, Former Kilome Member of Parliament Harun Mwau as well as civil lawyers Njonjo Mue and Khelef Khalifa cited constitutional provisions they argue were violated in the fresh poll, sentiments they had expressed in their unsuccessful bids to halt the election through suits filed at the High Court.

Mwau's petition which lists IEBC, its Chairperson and President Uhuru Kenyatta - who was declared the winner of the October 26 poll - contends that IEBC's failure to allow parties to conduct fresh primaries denied those who would have wanted to contest in the fresh election, an opportunity to do so.

Mwau also attached as part of annexure submitted to the court registry, a ruling declaring United Democratic Party presidential candidate Cyrus Jirongo bankrupt hence the argument he was unqualified to run for the presidency.

Also annexed to the petition are documents intended to demonstrate the advocate practicing status of IEBC Chairperson Wafula Chebukati and CEO Ezra Chiloba.

The consolidated petition by Mue and Khalifa, on the other hand, has cited wide-ranging constitutional provisions the duo argue were flouted in the fresh poll including what they say is gazettement of strangers on the ballot paper, citing the inclusion of National Super Alliance candidate Raila Odinga in the presidential race despite his withdrawal from the same.

Speaking to the press while filing the petition, lawyer Harun Ndubi who was holding brief for Mue and Khalifa said the electoral commission was incompetent in the manner in which it handled the election, hence the bid by the petitioners to have the apex court order a fresh presidential election.

"The fresh election held on October 26 was illegal. We hope to demonstrate that notwithstanding that illegality, the entire commission led by the Chairperson was so irredeemably incompetent that what they did was just a fuss and does not pass legal standards," Ndubi told reporters at the Supreme Court.

He argued that the electoral commission was, in fact, partial and could, therefore, have not been able to conduct a credible poll.

"They committed irregularities and illegalities that would serve to invalidate that election. We will demonstrate that the commission was so partial to one side that it was unable to run an election," Ndubi argued.

The petition by Mue and Khalifa also contends that the inclusion of NASA leader Raila Odinga on the ballot despite his withdrawal from the race in writing was inconsistent with the law.

Ndubi told reporters that by including Odinga on the ballot despite his withdrawal, the electoral commission confused the voter.

NASA is among four respondents listed on a petition filed by the two rights activists.

Ndubi explained that the petitioners had decided to list NASA as a respondent owing to the role the alliance played impeding last month's presidential election.

"NASA also precipitated or cause a situation that provided an environment which was not conducive for an election," Ndubi stated saying the petitioners had however made no prayers with regards to the alliance.

"The Directorate of Public Prosecutions and the electoral commission can deal with NASA as they'd wish to according to the law," he added.

Other than NASA, the petitioners have also listed President Uhuru Kenyatta who as well as the IEBC and its Chairperson as respondents.

The petitioners are by law required to serve respondents in the case by close of business Wednesday.

But even as the strict timelines for the petition begin to tick, a petition is pending before the Judicial Service Commission seeking to challenge Supreme Court sessions unless the bench is made up of an odd number of juries.

The petitioner, Kelvin Njihia, argues that since the pronouncement of Justice Mohammed Ibrahim's sickness, the court was rendered ineffective since it only remained with six judges, an even number that threatens to hamper its decisions.

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