Nairobi — The Supreme Court has reassured petitioners in the consolidated presidential election petition of the compliance to an order it issued on scrutiny of the electoral commission's server following claims by the lead petitioner that access to some seven servers had not been granted.
Raila Odinga's lead counsel James Orengo raised the matter of noncompliance as co-petitioners made their submissions on Wednesday saying the Independent Electoral and Boundaries Commission (IEBC) had only opened one server.
"Access has not been granted. Our team has had access to pone server and we've established that IEBC has eight servers. We're running out of time," Orengo, rising on the issue for a second time, lamented.
Responding to Orengo's concerns however, the court assured that two scrutiny processes - one on selected ballots and another on election servers - were ongoing unhindered.
"The two processes are going on well both at Forodha House and at IEBC. Whatever issues are being raised by parties are being addressed by the two teams," Justice Isaac Lenaola told the petitioners.
"I suggest we let them proceed and then again, we can revisit any arising issues tomorrow morning. So far both our teams are saying the process is ongoing we should not trouble ourselves for now," he added.
IEBC also confirmed compliance to the order saying it had granted access as ordered by the court.
Following the Supreme Court order,@IEBCKenya has granted access to the parties to access the servers and the scrutiny exercise is ongoing.
-- IEBC (@IEBCKenya) August 31, 2022
The apex court which commenced hearings on the petition on Wednesday after conducting a status conference on Tuesday responded to the concern on returning from a 15-minute break.
Justices of the court had ordered a recount of ballots form fifteen polling stations listed by one of the petitioners as well as election servers to ascertain claims on system manipulation.
Earlier on, lawyers representing the lead petitioners - Azimio presidential candidate Raila Odinga and his running mate Martha Karua - made their oral submissions challenging William Ruto's declaration as President-Elect saying he failed to attain the 50 per cent plus 1 threshold set out in the constitution.
The legal team led by Senior Counsel Orengo also questioned the discrepancies between votes cast in the presidential election compared to other electoral contests including gubernatorial races held concurrently.
They dismissed reports of stray ballots as well as prison and diaspora votes which are limited to the presidential election -- that could account for the discrepancies -- as improbable.
Lawyer Julie Soweto also alleged manipulation of tallies saying votes cast in favor of Azimio candidate were in some instances deducted.
Lawyers Paul Mwangi and Pheroze Nowrojee completed the lead petitioners' arguments after the court capped the number of lawyers for main parties at four.
Nowrojee faulted IEBC Chairperson Wafula Chebukati accusing him of dangling the August 9 presidential election adding that he should not remain as the head of the electoral agency whatever the outcome of the petition was.
Under guidelines issued by the court on Tuesday, Odinga's team was allocated three hours with six other petitioners in the consolidated suit allotted thirty minutes each with the number of counsel speaking capped at two for each.
Others who addressed the court were lawyers representing Juliana Nyokabi, Simon Mwaura and Joseph Mutua.
The court also heard arguments from lawyers representing four IEBC commissioners -- Juliana Cherera (Vice Chairperson), Francis Wanderi, Justus Nyang'aya, Francis Wanderi and Irene Masit -- who disowned Chebukati's declaration of Ruto as President-Elect following the August 9 presidential election.
The four commissioners were allocated an hour with each having a lawyer to make presentations in support of the petition.
On Thursday, the IEBC and its Chairperson Wafula Chebukati will have three hours and a total of five lawyers - four of whom will represent the commission - to argue their case in opposition to the petition.
The commission's submission will be followed by Ruto's whose team of four lawyers led by Senior Counsel Fred Ngatia who were allocated three hours.
Submissions on Thursday will conclude with presentations from the Attorney General (thirty minutes), and three amicus curiae who will not address the court but instead rely on written briefs.
The three included the Law Society of Kenya (LSK) in whose respect the Koome-led bench said the threshold for admission as amicus curiae had been met with the applicant having demonstrated impartiality, a key requirement for admission as friend of the court.
Justices Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko however noted that as amicus, LSK will only address the court through its written brief and will not be allowed to make oral submissions.
The Koome-led court cited Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others, SC Petition No. 12 of 2013; [2015] eKLR where the Supreme Court held, in a decision rendered on June 17, 2015, that "impartiality is a central tenet in the conduct of judicial proceedings."
"It is now clear that impartiality to a party's cause is one of the conditions for admission to the status of amicus curiae," the court stated in the Mumo Matemu case.
"As counsellor before the Court, an amicus curiae should not exhibit partiality towards any party's cause; otherwise some party would be prejudiced. Given the role of amicus as friend of the Court, impartiality is required of an amicus curiae," Justices Ibrahim and Ndungu stated in the 2015 decision.
The two justices also held that amici should confine themselves to issues of law that may not have been addressed by other litigants in court.
"An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law."
The court held that amici, unless expressly allowed by the court, will not be allowed to participate in interlocutory applications.
In Monday's decision to admit LSK as amicus curiae, the Supreme Court also cited Francis Muruatetu & Another v. Republic and 5 Others, SC Petition No. 15 &16 of 2015 (Consolidated): [2016] eKLR.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
The court will conclude its hearings on Friday with rejoinders from the petitioners and submission on the scrutiny report by the petitioners as well as respondents - Ruto, IEBC and Chebukati - before retreating to make a decision.
The Supreme Court distilled the consolidated presidential election petition into nine issues for determination following Tuesday's status conference.
Issues framed by the court include whether technology deployed by IEBC the standards of integrity, verifiability, security and transparency as set out in election statutes.
The seven-judge court will also determine whether there was interference in uploading and transmission of statutory presidential election result forms (Forms 34A) from the polling stations and whether postponement of 2 gubernatorial elections, four parliamentary races and well as ward elections in Nairobi's Kwa Njenga and Meru's Nyaki County Assembly Ward.
The question of whether the winner of the August 9 presidential election met the constitutional threshold of 50 per cent and an additional vote is also among the nine issues framed by the court.
The Supreme Court will also interrogate whether there were unexplained discrepancies for votes cast for president compared to the other five elective positions namely; Governor, Senator, Member of National Assembly, County Woman Representative and Member of County Assembly.
The judges will also determine whether IEBC carried out verification of statutory result forms in tallying centres in accordance with the law and make a determination whether alleged irregularities and illegalities during the polls were of such a magnitude to affect the election's outcome.
