Lightning, the saying goes, doesn't strike the same place twice! However, this cliché doesn't, of course, explain why the Supreme Court did not nullify President Uhuru Kenyatta's victory in the October 26 repeat poll.
Indeed, Chief Justice David Maraga had warned that the court would not hesitate to cancel the fresh election if the IEBC didn't conduct it "strictly in conformity with the Constitution and the law".
What was different this second time round?
Was it the IEBC's performance both in the field and in court, or was it because of Nasa candidate Raila Odinga's withdrawal from the repeat, or the incompetence of the petitioners' legal teams, or was it that the Supreme Court that applied itself better in the second round?
I want to submit that all of the above (and more factors), contributed to the different outcome.
But I want to discuss only the Supreme Court's possible contribution because it's perhaps the more difficult to discern.
In the first petition, the court established its own inquiry headed by the registrar, whose 'report' was then admitted into the court proceedings.
The parties were given 15 minutes each to 'comment' on the registrar's report.
This was irregular. The court appeared to enter the arena, not as an arbitrator, but as an active prosecutor and judge of its own backroom inquisition.
It became obvious to any keen observer that whatever logic and specific details of "irregularities and illegalities" the IEBC believed were applied to arrive at the decision to nullify the August 8 presidential election, "were resident, NOT in the pleadings and submissions in the courtroom, but specifically in the backroom report written by the Supreme Court Registrar".
During the hearing on November 15 of the petition against the October 26 election, the Supreme Court declined an invitation to join the petitioners in the IEBC godowns to check on Forms 34A & 34B and "report back". This, to me, represents a critical difference between the first and the second petitions and begins to explain the different outcomes.
The refrain heard from Nasa had been: "There will be no election on October 26".
It intrigued many, including myself, especially because they claimed that they would achieve it within the law. This theme song was repeatedly articulated by Nasa CEO Norman Magaya.
I was inclined to ignore him until Mr Otiende Amollo, an advocate, and a man I respect for his methodical legal mind, entered the debate and confirmed "it can, and will be done, and within the law".
The genesis of Nasa's bravado and legal strategy appears to have been pegged on a faulty and warped interpretation of the Supreme Court ruling in the Raila Odinga petition in 2013.
Then, the Supreme Court, in response to a request from the Attorney-General, acting as amicus curiae, explained that a fresh election built on the foundations of an invalidated one would, in their opinion, only involve those who participated in the original poll and no fresh nominations are necessary.
The court then stated at paragraph 290 (quote):
" Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest (emphasis mine) before the scheduled date: then the provisions of Article 138(1) (b) would become applicable, with fresh nominations ensuing." There are several points to note from this paragraph, quoted verbatim.
First is a typo; they meant provisions of Article 138 (8) (b) There is no sub-section (b) in Article 138 (1). Second is the heading of Article 138 (8), which says: "A Presidential election shall be cancelled and a new one held (remember that is what Nasa wanted!) if;-
(b) a candidate for election as president or deputy president dies on or before the scheduled election date; or
(c)....... ... .
The rewriting of Article 138 (8) (b) of the Constitution by the Supreme Court in 2013, by inserting the words "or abandons the electoral quest" to the article is ridiculous and expressly untenable! It provides for politically instigated cancellations of presidential elections, repeatedly.
It is also patently foolish to equate the consequences of death to that of abandonment of an electoral quest in law.
If this grotesque proposition by (ex-CJ) Dr Willy Mutunga's Supreme Court in 2013 is where Nasa hung their marbles to have the presidential election cancelled under their "tyranny of brains" mantra, then are you surprised that the Maraga Supreme Court saw it differently?
The author is a consultant in public affairs and policy.