Great expectations lie on the shoulders of Kenya's Supreme Court

Saturday November 18 2017

Supreme Court of Kenya judges

Supreme Court of Kenya judges during the presidential petition proceedings on November 16, 2017. PHOTO | JEFF ANGOTE | NMG 

By The EastAfrican
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Kenyans are, once again, on edge as they await the ruling of the Supreme Court on two petitions challenging the election of President Uhuru Kenyatta in the repeat poll of October 26 that was boycotted by the main opposition National Super Alliance (Nasa).

The ruling on the petitions is keenly awaited by both the ruling Jubilee Party and the opposition, as they were brought to court after a repeat election that followed the historic annulment by the same court of the August 8 election in which President Kenyatta had been declared winner.

Should one or both be allowed, it would send Kenyans back to the ballot box for a third time.

The first petition, filed by businessman and former legislator Harun Mwau contended that the Independent Electoral and Boundaries Commission (IEBC) erred in conducting the presidential elections without nominations by the political parties.

He argues that the term “fresh elections” as ordered by the Supreme Court when it nullified the August 8 poll meant that the process of elections would have had to be taken back to the starting blocks of the presidential elections: That is, by the parties conducting nominations of candidates and submitting the nominees for inclusion in the ballot.

The second petition, filed by representatives of two civil society organisations, Njonjo Mue and Khelef Khalifa, raised a number of grounds seeking annulment of the second round of the presidential election.

Violence and tension

Among them were that firstly, the IEBC had failed to remedy the systemic and systematic failures in management of elections that resulted in the annulment. They brought evidence to the effect that the polls could not have been free fair and credible as required by the Constitution.

They argued that the elections had been held under a cloud of violence and tension across the country that, they claimed, must have scared many voters away from turning up to vote.

They claimed that the atmosphere of violence and the resultant fear had been specifically created by the executive arm of government so as to influence the results in favour of the incumbent.

This claim was denied by the IEBC, its chairperson and the president (who were respondents in both petitions).

They countered that the fear resulted from the violent groups who were opposed to the fresh elections who wanted to dissuade voters from voting.

Inability to deliver election

Mr Mue and Mr Khalifa also sought to impugn the repeat elections saying that the IEBC was incapable of conducting a free, fair and credible elections to the standards required by the Constitution.

They trained their guns on the whole IEBC and its commissioners’ conduct in pressing this point. Citing the resignation of one of the commissioners of the IEBC just 10 days to the October 26 polls, they relied on some admissions and statement by Commissioner Roselyn Akombe that the infighting and political partisanship of the commissioners had led to a dysfunctional IEBC, rendering it incapable of conducting free and fair elections.

The also referred to the IEBC chairperson’s public statement in which he appeared to agree with the sentiments and that he was unsure that the IEBC was capable to conducting a free and fair poll.

In further argument on the inability of the IEBC to deliver a credible election, the petitioner contended that the IEBC had always demonstrated affinity with the positions of the executive contrary to its obligation of independence showing that it was partisan and, therefore, incapable of credibility.

They argued that following violent protests, the IEBC was initially compelled to postpone the repeat election but subsequently called off voting in 27 constituencies within six counties.

The petitioners said that this failure disenfranchised the over 1.7 million voters in these constituencies and also discriminated against them in affording other counties a choice they were deprived of.

Universal suffrage

In their rejoinder, the respondents contended that the IEBC had made reasonable efforts to the ensure voting in these areas but was unable to do so because of the violence and threats of physical harm to the IEBC officials.

Of importance here is what the court will make of the constitutional requirement that presidential elections must be conducted within all the constituencies.

In further support of this ground, the petitioners argued that the decision by the IEBC to declare a president-elect without the vote of these 27 constituencies constituted a failure to ensure the right of universal suffrage, especially bearing in mind that the presidency is declared by the Constitution to be an office symbolic of national unity.

This petition shadowed the first petition of 2017 which resulted in the annulment of the August 8 elections in terms of the challenges to the IEBC’s competence and management of the elections.

It also raised a number of novel issues such as the essence of universal suffrage and whether the failure of a section of the country to vote can and should be a basis of holding that they exercised their right not to vote.

The Supreme Court judges led by Chief Justice David Maraga retreated to an undisclosed place to draft their ruling to be delivered on November 20.