8 November 2017

Kenya: Maraga Issues Guidelines for Presidential Petition

Nairobi — Chief Justice David Maraga has directed that responses to three petitions filed at the Supreme Court against President Uhuru Kenyatta's re-election be made by 5 pm on Sunday.

In a communiqué to newsrooms Wednesday afternoon, the President of the Supreme Court also directed lawyers litigating the Institute for Democratic Governance (IDEG) petition, the joint Njonjo Mue and Khelef Khalifa petition and the Harun Mwau petition to file and serve their written submissions by 5 pm on Monday next week.

Parties with applications relating to the three petitions are to make written submissions limited to five pages by noon, Monday.

"The submissions on the petition and the response shall be limited to 30 pages of at least font 12 double spacing," Justice Maraga guided.

Responses to the applications are to be submitted by 5 pm on the same day.

Those wishing to be enlisted in the hearing of the three petitions as friends of the court have been directed to apply by 5 pm on Monday.

"Any party wishing to be admitted to the petition, as amicus curiae should pursuant to Rule 54 of the Supreme Court Rules, 2012, file and serve its application together with the amicus brief limited to five pages of at least font 12 double spacing," the head of the Supreme Court wrote.

In its petition, IDEG wants the apex court to pronounce itself on alleged electoral offences committed by Opposition National Super Alliance (NASA) leaders Raila Odinga, Kalonzo Musyoka, Musalia Mudavadi, James Orengo and Moses Wetangula whom the petitioner argues planned violence ahead of the October 26 fresh presidential election to intimidate willing voters from exercising their democratic rights to participate in the poll.

"The people of Kenya were entitled to participate in a presidential election free from threats, fear, intimidation, violence, and interference," IDEG states in petition papers.

The Independent Electoral and Boundaries Commission (IEBC) and the Attorney General are listed as interested parties.

In the Njonjo Mue and Khelef Khalifa, a declaration to nullify the October presidential election and have a fresh one conducted is being sought on grounds that IEBC did not conduct the poll in accordance with the Constitution and the election laws.

The duo has listed IEBC and its Chairperson Wafula Chebukati as the second and first respondent respectively.

President Kenyatta and NASA presidential candidate Raila Odinga are listed as third and fourth respondents.

While briefing reporters after the filing of the petition on Monday night, lawyer Harun Ndubi explained that the IEBC failed to comply with orders of the Supreme Court which nullified the August 8 presidential election and ordered a fresh one to be conducted in strict compliance with the Constitution.

"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 stated.

He claimed that IEBC 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.

Maraga and three other justices of the court had in a majority ruling rendered on September 1 followed by a detailed ruling delivered on September 21 found the electoral commission to have committed irregularities and illegalities in the conduct of the August presidential poll, hence invalidating it.

On the inclusion of NASA as a respondent in the petition, Ndubi explained that the alliance had been listed owing to the role it played in 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.

The Mwau petition does not mark a significant shift from applications he made at the High Court prior to the presidential election in which he sought the cancellation of the poll.

Mwau argues in his petition that IEBC failed to order for fresh nominations which he contends should have been the case following Supreme Court orders for a fresh presidential election.

He argues that by doing so, IEBC which he has listed as the first respondent denied interested Kenyans an opportunity to run for the presidency, only limiting the race to those who participated in the initial election.

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 seek the presidency.

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