Nairobi — A petitioner wants the Supreme Court to void the August 9 presidential election on the grounds that Independent Electoral and Boundaries Commission chairman Wafula Chebukati tallied results outside the 290 constituencies envisaged in the constitution.
David Kariuki Ngare through his counsel Ndegwa Njiru argued that according to Article 4 and 89 of the constitution the Diaspora is not recognized as constituency within the confines of the law.
Article 89(1) of the constitution provides that there shall be two hundred and ninety constituencies for the purposes of the election.
"We have averment that the elections took place in 291 constituencies, the fundamental question is where did this extra constituency come from and this extra constituency a constitutional constituency defined by the armpits of the constitution under article 89," he stated.
"How can an election that infiltrated by an alien constituency be regarded as a constitutional election?"
The counsel argued that the constitution did not vest any powers whatsoever to any individual even the IEBC Chair to add constituencies at will.
"An individual cannot create a constituency, if it was in the interest of Kenyans while promulgating this constitution and adopting this constitution and giving this constitution unto themselves an extra constituency, there was nothing as easy as saying as such," Ndegwa stated.
Ndegwa indicated that even though Kenyans in the Diaspora have a right to vote, the constitution doesn't recognize them as a constituency on itself under Article 97 of the constitution.
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"To the extent that election in an extra constituency not defined in article 89 of the constitution took place, that contaminated the elections," he said.
The counsel argued that the Diaspora being regarded as a constituency was in contravention of the constitution given that Chebukati tallied the Diaspora vote when checking the 50+1 threshold attainment for the presidential elect as envisaged in Article 138(4).
Ndegwa contended that the computation of the Diaspora vote count for the presidential election in compliance with that threshold was in contravention of the Constitution and the Election Act.
"We are submitting that these elections conducted in alien constituencies contributed to the computation of 50+1 percent," he stated.
"An election can be voided if it didn't comply with the constitution or any other written law. A constituency as defined in article 89 must be within the territory of Kenya," he argued.
