By FRED OLUOCH

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All eyes were last week once again on Kenya’s apex court — the Supreme Court — as civil society burnt the midnight oil working on another presidential petition, with President Uhuru Kenyatta opting to disengage until the petition is filed or he is sworn in.

The civil society and opposition are considering a multipronged approach to protest the outcome of the October 26 repeat elections that handed President Kenyatta victory with 98 per cent of the vote cast.

Options on the table for the opposition and civil society, working differently, are another battle in the Supreme Court, push for constitutional reforms to an economic boycott and the Peoples’ Assembly to force fresh elections within a year.

Civil Society working under Kura Yangu Sauti Yangu (My vote my voice) — a coalition of civil society groups — was until Friday evening knitting together a presidential petition that seeks to invalidate the presidential election results.

However, the group kept its game plan close to its chest for fear of a crackdown that the government mounted on its leaders after the August poll, but sources revealed that the petition was to be filed any time from Friday evening, ahead of the deadline on Monday.

President Kenyatta and his Jubilee brigade have opted to disengage from any post-election activity until the petition is filed or the president is sworn in should civil society abandon the court option.

READ: Kenyatta declared winner of Kenya's divisive poll

“We are monitoring if the petition is filed; we were told it will be filed on Friday,” said a source working at the president campaign team.

Kura Yangu Sauti Yangu working with trade unions, religious leaders, the business community and academics under the aegis We-the-People, dismissed the repeat polls, warning that another round of legal battle was looming in the Supreme Court.

“We-the-People are concerned that a legal challenge is again probable, and far from resolving the failure of the August 8 election, it raises the prospect of yet another election being held within the 60 days as required by the Constitution; or, at the very least, an ongoing political crisis with a protracted legal contest,” the group said last week.

Civil disobedience

The opposition coalition —  National Super Alliance (Nasa) — on the other hand has vowed to keep away the courtroom and concentrate on civil disobedience, economic boycott and the Peoples’ Assembly to push for reforms and consequent fresh elections.

READ: Kenya opposition calls for boycott of firms 'affiliated' to govt

Also of concern to Nasa is the Election Laws (Amendment) Act 2017, sponsored by the ruling Jubilee Party and which came into effect on October 28, and makes it difficult for the Supreme Court to nullify the presidential elections.

Still, should the civil society seek legal redress, the Supreme court will have to deal with three cases following the declaration of President Uhuru Kenyatta as the winner in the October 26 poll.

The Supreme Court is also expected to deal with a pre-emptive case filed by a Jubilee MP, David Pkosing asking it to uphold the president’s election despite the Nasa having boycotted. Twenty five constituencies did not vote.

Also in court is a case filed by human rights activist Okiya Omtata. His prayer is that the pullout by Nasa has created a crisis, which requires the Supreme Court to clarify the law and pronounce itself on the validity of the fresh presidential election.

The judges

However, there are concerns over the independence of the bench following complaints in mid-September by Chief Justice David Maraga that the Judiciary is facing constant threats since the Supreme Court annulled President Kenyatta’s re-election on September 1.

Justice Maraga said the increasing incidents of attacks by various groups of people on the Judiciary are denigrating, demeaning and degrading and are meant to intimidate, threaten and cow the institution and individual judges.

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President Kenyatta is on record as threatening “to cut it down to size’ and “fix” the judges of the Supreme Court due to what he termed a judicial coup.

The concerns are based on what happened on October 25 when a case filed by three petitioners to stop the repeat elections aborted because the Supreme Court lacked a quorum. Only two of five judges — Chief Justices Maraga and Justice Isaac Lenaola — were present.

Many Kenyans were surprised by the lack of quorum, and the European Union Observer team described it as “highly unusual for a Supreme Court hearing.” 

“The lack of a quorum has raised serious questions among Kenyan stakeholders, including possible political interference,” reads their statement.

READ: Kenya Supreme Court fails to hear election case

The executive director of the Society for International Development, Houghton Irungu, said that there have been signs that Supreme Court judges were being intimidated when five of them failed to appear in court. He however believes the judges have long experiences and would not want to go back to the 1980s and 90s when the judiciary was under the thumb of the executive.

“While the situation has become more hostile since September 1, the Supreme Court is not a lost cause and they are still capable of discharging their duties professionally should another petition come before them. It is up to Kenyans who are interested in democracy, rule of law and separation of powers to protect the judiciary from threats and intimidation,” said Mr Irungu.