Kenya: President Kenyatta Wants Petitions Against His Victory Dismissed

President Uhuru Kenyatta.
13 November 2017

Nairobi — President Uhuru Kenyatta has asked the Supreme Court to dismiss with costs two petitions seeking the invalidation of his re-election during the October 26 repeat presidential election boycotted by his rival Raila Odinga of the National Super Alliance (NASA)-even though his name was retained on the ballot.

In responses filed by his lawyers on Sunday, President Kenyatta maintained the fresh presidential election was conducted in accordance with the Constitution and the applicable law, and dismissed the petitions filed by former Kilome lawmaker Harun Mwau and activists Njonjo Mue and Khelef Khalifa.

The Head of State said prayers by Mwau that the election should be nullified since there were no fresh nominations conducted following the annulment of the August 8 presidential election by the Supreme Court have no legal basis.

In his affidavit, President Kenyatta quotes paragraph 289 of the 2013 ruling by the apex court on a petition filed by his main challenger National Super Alliance (NASA) - then Coalition for Reforms and Democracy (CORD) - presidential candidate Raila Odinga, in which the court pronounced itself on who the candidates should be in the event the election of a President is voided.

"Since such a fresh election is built on the foundation of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest," the Supreme Court bench at the time rendered.

According to President Kenyatta, a ruling by High Court Judge John Mativo on October 11 allowing Thirdway Alliance presidential candidate Ekuru Aukot to be included in the fresh election was, as a matter of fact, a validation of the position in law.

As a participant in the annulled election, President Kenyatta argues in his affidavit that Aukot had a right to be accorded a chance to contest.

"The High Court further found that it would serve the public interest that those who participated in the invalidated election do qualify to contest in the fresh election," President Kenyatta argues in defence of a decision by the Independent Electoral and Boundaries Commission (IEBC) to gazette through an addendum, Aukot and five other presidential candidates who took part in the August poll.

The President has made similar submissions with regards to the petition filed by Mue and Khalifa which rides on the manner in which the poll was staged, the petitioners arguing that the election did not meet constitutional threshold including the requirement that a presidential election is conducted in all the 290 constituencies countrywide.

The inability by the IEBC to conduct the election in 25 Nyanza constituencies, President Kenyatta said, was triggered by violent protests and intimidation of election officials by NASA.

Jubilee Party Secretary-General Raphael Tuju said after the filing of Kenyatta's response to the petitions that the ruling party was upbeat of a favourable outcome.

"Our arguments are anchored on the inalienable right of every Kenyan to vote and it was abundantly clear that NASA and people acting on their behalf disrupted the election in Nyanza," he argued.

Tuju said Kenyatta demonstrated respect to the rule of law by subjecting himself to the fresh poll as ordered by the court even when he disagreed with the court.

Makueni MP Dan Maanzo also filed responses on NASA's behalf whose key leaders have been named in the Mue and Khalifa petition as well as in a petition by the Institute for Democratic Governance as having played a role in disrupting last month's election in some parts of the country.

Maanzo said Odinga, his running mate Kalonzo Musyoka as well as Senators James Orengo and Moses Wetangula will demonstrate to the court that they committed no crime.

He, however, argued that the two petitions had veered off from the main purposes of an election petition saying they should have strictly been limited to contesting the outcome of the presidential election conducted in October.

The IEBC team also filed its responses ahead of the 5 pm deadline insisting that the October 26 presidential election was held as per the law.

Applicants wishing to be enjoined in the hearing of the three petitions have until midday Monday to make written submissions with responses on the applications expected to be tendered by 5 pm, according to guidelines published Wednesday by Chief Justice David Maraga.

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