Kenya’s Supreme Court in the dock again as Nasa files petition

Saturday August 19 2017

By The EastAfrican
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Kenya’s opposition leader Raila Odinga and President Uhuru Kenyatta have for the second time taken their duel to the Supreme Court, which now has 14 days to dispense with a presidential petition filed on Friday.

The National Super Alliance (Nasa) has been working with Kura Yangu Sauti Yangu (my vote my voice), a coalition of civil societies, over the past one week to prepare what it called a water-tight petition challenging the re-election of President Kenyatta after the international community persuaded Mr Odinga against resorting to mass action.

The Kura Yangu Sauti Yangu group is said to have helped the opposition in piecing together evidence to support claims of discrepancies in the presidential election results.

In court documents seen by The EastAfrican, Mr Odinga, asks the Supreme Court to nullify the presidential election and order a fresh one.

Mr Odinga said the August 8 election was fatally compromised.

“It was so badly conducted and marred with such glaring irregularities that it does not matter who won, or who was declared the winner thereof,” Mr Odinga says in court papers filed jointly with his running mate, Kalonzo Musyoka of Wiper Party.

Affidavits

The petition relies on a series of sworn statements by research and information technology experts among others to allege a string of errors in the process. The statements also question the numbers emerging from the presidential election.

They allege that there were numerous instances in which votes were deducted from their ticket and added to President Uhuru Kenyatta, who was declared winner of the State House race.

The chairman of the electoral commission, Wafula Chebukati, said that President Kenyatta had garnered 8,203,290 votes (54.2 per cent) against Mr Odinga’s 6,762,224 votes (44.7 per cent).

An affidavit by Nyangasi Onduwo, who works as an economic advisor for Mombasa Governor Hassan Joho, alleges that he examined over 25,000 vote declaration forms and detected errors in 14,000 of them. The errors ranged from unsigned documents, or the name of one presiding officer being shown as the official in charge of elections in multiple stations at the same time. 

He also says that he found 443 instances of ungazetted polling stations, election results forms that had been filled out in the same handwriting, and forms that have a polling station, names and details of agents as well as their signatures but were blank in spaces meant to show results.

Constitutional threshold

The court will have 14 days to test the veracity of these allegations.

Other documents allege that the votes cast in the presidential election (15,588,038) exceeded those for governors (15,098,646) and Members of the National Assembly (15,008,818) by 482,202 and 567,517 ballots respectively.

The law and the decisions of the courts before the election required a number of things done, including voting, electronic transmission of results, by image and text to tallying centre, and the display of results in a public portal that is accountable, verifiable and accurate.

These are the standards that determine whether or not results meet the constitutional threshold.

Nasa alleges that the IEBC flouted these principles and wants this used to nullify the results of the elections. Most strikingly, by the time of announcing the final results, the commission’s chairman purported his numbers to be final. This suggested he had received all the tallies from all the polling stations. According to Nasa, he had not.

Over 20 lawyers working on the court papers also included in the petition questions about the IEBC declaring results for the presidential election when it did not have documents for 11,883 polling stations.

“How then did the IEBC chair respond to Nasa’s enquiry by saying they have not received 5,015 Forms 34A?” one of the lawyers asked.

The petition alleges that returning and presiding officers were recalled to fill and adjust relevant results forms to ensure documents tallied with the final results announced.

Timeline

Once the papers have been filed, Nasa will have two days to serve the respondents, including the electoral commission and the Jubilee Party. The respondents will in turn have four days to file their responses.

A pre-trial conference will be held on the eighth day after the filing of the petition, after which the case will be heard every day until it is concluded.

However, the Supreme Court must give a ruling within 14 days. If the court upholds President Kenyatta’s victory, that ruling will be final. If it finds the election was flawed, a run-off between the incumbent and Mr Odinga must be held within 60 days.

Justice David Maraga, the Chief Justice and president of the Supreme Court, has said that the Judiciary is ready to hear the case and, if necessary: “I will allow our judicial officers to work outside the official hours — into the night and through weekends — to ensure that we keep to the constitutional timelines without compromising on the quality of rulings.”

Nasa filed the petition late Friday night, just in time to beat the midnight deadline.