CJ warns that the court will not hesitate to nullify another election marred by the same problems.
All eyes are on Kenya's Chief Justice David Kenani Maraga again as he leads Supreme Court judges in deciding the validity of a repeat presidential election.
This is the second time in three months that the seven-judge bench is being called upon to adjudicate on a presidential poll dispute.
On Wednesday, the CJ gave directions on timelines for the hearing of the three petitions filed at the court, which is set to rule on the matters by November 20.
The country’s top judge won admiration and criticism in equal measure when the Supreme Court nullified the August 8 victory of President Uhuru Kenyatta and ordered a fresh presidential election held within 60 days.
The incumbent had been declared winner, but the court, by a majority decision, nullified it, citing irregularities and illegalities after his main challenger, National Super Alliance (Nasa) leader Raila Odinga, petitioned.
Mr Odinga pulled out of the October 26 fresh election, saying the electoral reforms he had demanded to level the field had not been effected.
The veteran opposition leader described the fresh election — won by Mr Kenyatta — as a sham but refused to challenge it in court. Instead, he has called for street protests and a “People’s Assembly” to resist the Kenyatta administration and pave the way for fresh elections within 90 days.
Two of the three petitions were filed by former Kilome MP Harun Mwau and human rights activists Njonjo Mue and Khelef Khalifa.
Mr Mwau, Mr Mue and Mr Khalifa argue that the withdrawal of Mr Odinga from the race meant that the poll was void. They have also cited numerous irregularities in the vote tallying, as well as violence that prevented voting in 25 constituencies, as grounds for quashing the election result.
The third, by the Institute for Democratic Governance, seeks to find Mr Odinga and his running mate Kalonzo Musyoka and their Nasa co-principal Musalia Mudavadi, as well as senators James Orengo (Siaya) and Moses Wetang’ula (Bungoma), liable for damages and losses ahead of the poll.
In less than a month, the Supreme Court must decide whether to uphold the result or order another election in 90 days and prolong the political crisis that has paralysed the economy and strained ethnic relations. Some Sh12 billion was spent on the repeat election and more money will be needed in case it is nullified.
Justice Maraga on Wednesday directed that all the respondents in the cases file their responses by 5pm on Sunday. They should then file and serve their written submissions by 5pm the following day. The submissions shall be limited to 30 pages.
Any party wishing to join either of the cases has been directed to file and serve their applications and written submissions of not more than five pages by midday on Monday.
If a petitioner has any further responses, they should file and serve them by 5pm on that day.
Will not hesitate to nullify another election
Any party seeking to join the case as an amicus curiae (friend of the court) should file their application by 5pm. The amici’s submissions are limited to five pages.
When ordering IEBC on September 1 to conduct the fresh poll in accordance with the Constitution and applicable electoral laws, the CJ’s assumption was that everyone would be happy and there will be no contestation.
He warned that the court will not hesitate to nullify another election marred by the same problems.
But now, he has to juggle between the law, the evidence adduced before him and the interest of the general public.
Although lawyer Vincent Lempaa said it was difficult to define public interest, Justice Maraga now holds the most difficult job in Kenya because he has to weigh between all these aspects yet the public is divided.
“The issue at hand is a very difficult one,” said Mr Lempaa. “Elections, especially in Africa, are very divisive.
They involve high stakes and, whichever way the court rules, they will be condemned and commended in equal measure.”
The Maraga court has to content with being called names by its critics, depending on the outcome.
After the landmark ruling, the judges were called “wakora” (thugs) and the court branded “korti bandia” (fake court).
“He (Maraga) is faced with one of the most difficult jobs in the history of the country, said lawyer James Mwamu, adding that Maraga’s “is a job I don’t admire at the moment”.
He added: “But other than the hard decision he has to make, he has the opportunity of going down the annals of history by upholding the rule of law and the Constitution.”