11 December 2017

Kenya: Supreme Court Gives Reasons for Upholding Uhuru Kenyatta's Win

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

The Supreme Court on Monday explained why it dismissed two election petitions challenging the October 26 repeat election.

According to the six judges, there were nine issues for consideration from the two consolidated petitions.

ISSUES

One issue was whether the petitioners had the right to challenge the outcome and whether the case was a public interest litigation.

In a decision read by Justice Isaac Lenaola, the judges ruled that the petitioners had the right to sue.

They said any Kenyan is free to challenge the presidential poll.

The court also ruled that there was no need for fresh nominations for the repeat presidential election after the first poll was voided.

On September 1, the Supreme Court had annulled President Uhuru Kenyatta’s win in the August 8 election.

CANDIDATES

Justice Lenaola also said the inclusion of Mr Cyrus Jirongo in the poll was okay because the Independent Electoral and Boundaries Commission was guided by the law and court decisions.

"We therefore find no fault on the part of the commission to include Mr Jirongo in the repeat poll because they were guided by the court," he said.

The judges also said the IEBC was guided by a court order in including all the parties in the repeat poll. All the presidential candidates in the August 8 election were included in the ballot in the repeat election.

VALIDITY

Although the judges agreed that the public pronouncement by Nasa candidate Raila Odinga on his withdrawal from the race on September 10 and the letter written to the IEBC was substantive and legally effective, the move could not have led to the cancellation of the repeat poll.

They said the withdrawal of a candidate from the presidential election is not contemplated in the Constitution and the Elections Act.

Regulations 52, the court said, requires that a candidate who intends to withdraw must do so within three days of nominations by writing to the national returning officer.

They added that Regulations 52 was, however, not applicable in the current case because nominations had been conducted in May 2017 and the nominations were not among the issues that led to the nullification of the August 8 presidential poll.

When reading the judgment, Justice Smokin Wanjala said the validity of an election cannot be challenged on the basis of whether the election was held in all the 290 constituencies.

This was in response to the question on whether failure to hold elections in all constituencies would void the poll.

INTIMIDATION

The judges said they were not intimidated by President Uhuru Kenyatta's statements that were made after they annulled the August 8 election.

The court also dismissed the claim that the Jubilee Women's Brigade intimidated people by wearing military-style clothes during campaigns.

On claims of irregularities, Justice JB Ojwang said the petitioners made general allegations without proving the claims.

He said the IEBC cannot be faulted for shifting some polling stations in Kibra and Mombasa because, as they noted, there was violence in some parts of the country that made it impossible to hold the poll in some areas.

All claims of irregularities have been effectively rebutted by the respondents, the judge said.

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