11 December 2017

Kenya: This Is Why We Upheld Kenyatta's Win - Supreme Court

Photo: Jeff Angote/The East African
Chief Justice David Maraga, with Deputy Chief Justice Philomena Mwilu at the Supreme Court on November 14.

Nairobi — The Supreme Court has ruled that there was no need for fresh nominations ahead of the October 26 fresh presidential election.

In a detailed judgment of its November 20 verdict upholding President Uhuru Kenyatta's election in the October poll, the apex court on Monday stated that the nominations that took place ahead of the annulled August 8 presidential election had not been voided and hence were intact.

Since the nominations were not faulted, the court observed that fresh nominations were unwarranted.

"The nominations that took place on 28 and 29 May 2017 remained valid and no other nominations were required for the October 26 election," Justice Isaac Lenaola said as he read the ruling in part.

"We affirm therefore that all the candidates in the August 8 election were validly nominated and it was proper for the Independent Electoral and Boundaries Commission (IEBC) to have included them on the ballot paper as presidential candidates," Justice Lenaola proclaimed.

The six-member bench of the apex court comprising Chief Justice David Maraga, Deputy CJ Philomena Mwilu, Lady Justice Njoki Ndung'u, Justices Jackton Ojwang', Smokin Wanjala and Lenaola also dismissed petitioners' arguments that Cyrus Jirongo of the United Democratic Party had arbitrarily been included in the election - having been declared bankrupt - taking note that the bankruptcy order had been stayed, following an application by Jirongo.

The court maintained its November 20 declaration that the petitions - by activists Njonjo Mue and Khelef Khalifa and another by former Kilome MP Harun Mwau - were unmerited, maintaining that President Kenyatta won fair and square.

It was the position of the court that the October 26 presidential election resulted into a legitimate winner who acquired the requisite 50 per cent plus one of the valid votes cast nationwide and 25 per cent in half of the 47 counties.

"The ultimate yardstick of determining a winner in the presidential election as provided by Article 138 (4) was in our consideration mate and hence the election was free and fair," Chief Justice Maraga pronounced.

He also pointed out that the lower voter turnout witnessed in the election was not sufficient to invalidate the poll saying the turnout was affected by voter fatigue and the ensuing political environment as demonstrated in court during the hearing of the petitions.

"An election cannot be tainted solely on grounds of voter turnout. This is because as we have found voter fatigue and the general voter apathy that attends to repeat elections or by-elections," he noted.

In addition, the Supreme Court declined to find President Kenyatta's administration at fault for running advertisements of the government's achievement in the period leading to the October 26 presidential election.

While taking note of a High Court on October 19 that had forbidden the State from running such messages in the media, the apex court explained that the petitioners had failed to adduce any evidence before the court indicating that the government had in the time leading to the election contravened the High Court order.

"The High Court had issued a declaration that the Kenya Government Delivery Portal to advertise achievements undertaken in across the country was unlawful and that it violated Section 14 (2) of the Election Offences Act. The High Court issued an order of permanent injunction forbidding the government from using State resources to advertise during campaign time," Justice Wanjala stated.

"The petitioners do not indicate any specific instance where the government advertised its achievement during the campaign period for the elections of October 26," Justice Wanjala pointed out.

On the October 10 withdrawal of National Super Alliance (NASA) presidential candidate Raila Odinga and his running mate Kalonzo Musyoka from the scheduled election, the Supreme Court said the withdrawal was not a scenario contemplated in Article 138 (8) (b) which required that an election is cancelled when a candidate or running mate dies before Election Day.

The six judges also observed that whereas regulation 52 of General Elections provides for withdrawal of candidates within three days of nomination, a candidate could not be forced into an election if they choose to quit after the three days stipulated in the law.

The court made a determination that Odinga's letter to IEBC on October 10 was fit for the purpose of his withdrawal, however inconsequential his decision was in law.

The court also pronounced itself on the Election Laws Amendment Bill (2017) which petitioners argued was meant to dilute the role of technology in elections saying the said amendments only came into force until November 2.

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