Kenyan lobby to file petition against Kenyatta win

Monday November 6 2017

President Uhuru Kenyatta winner repeat presidential election at the Bomas of Kenya

President Uhuru Kenyatta holds his certificate after he was announced winner of the repeat presidential election at the Bomas of Kenya in Nairobi October 30, 2017. PHOTO | RAPHAEL NJOROGE | NATION MEDIA GROUP 

By DAILY NATION
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A Kenyan lobby is expected to file a petition at the Supreme Court challenging the validity of the October 26 presidential poll.

The country's President Kenyatta was on Monday last week declared the winner of the poll that was ordered by the court on September 1.

The election was boycotted by opposition National Super Alliance’s Raila Odinga.

However, We-the-People, a group that styles itself as a citizens’ alliance, has argued that the poll was neither credible nor legitimate and will this morning petition the Supreme Court over the outcome.

“Rather than using the historic Supreme Court judgment to reform and raise electoral standards, the five-year cycle of electoral instability has been further entrenched. This is horribly costly in ways the nation cannot afford and continues to create uncertainty and fear,” the group says in one of the pleadings to be filed in court Monday morning.

The decision to file the petition has been a highly guarded secret, owing to what Mr Wainaina Ndung’u, a member of the lobby, said is fear of possible attacks from State-sponsored goons.

“Our fear has been vindicated after the State issued summons to some NGOs on suspicion of drafting the petition,” he told the Nation on Sunday.

To avoid being scuttled, the Nation learnt that a scheme had been hatched that multiple petitions by individuals be filed so as to make it difficult for the state to target the groups.

However, the proposal ran into headwinds because of the Ksh1.5 million ($14,464) deposit required before filing and then the astronomical legal cost of litigating a matter of this impact.

Credibility

The Nation was informed that among the grounds for the petitions is whether Mr Odinga’s non-participation affected the credibility of the poll.

The lobby will also be asking the Supreme Court to determine whether the October 26 poll was conducted within the provisions of the Constitution, the existing laws and regulations and in accordance with the September 1 judgment when it nullified the outcome of the August 8 presidential poll.

The group argues that the management of the electoral process, as well as results transmission and announcement, did not conform to the requirements of the Constitution and the high standards set by the Court of Appeal in the Maina Kiai case and the September 1 Supreme Court judgment, which required the IEBC to conduct the polls as per the letter of the electoral laws and the Constitution.

In the Maina Kiai case, the court directed that the presidential election results be tallied by the constituency returning officers, who would fill in forms 34B, transmit it electronically to the national tallying centre, where the presidential returning officer would generate form 34C then declare the winner from the 290 constituencies.

“The October 26 poll mirrors the issues raised in the petition to the Supreme Court, which annulled the results of the August 8 presidential election,” reads an excerpt of the pleadings the Nation has seen.

According to the pleadings, the petition follows along the qualitative lines of the previous successful petition.

Forms

For example, the group said it will present evidence of multiple Forms 34A from the same polling stations with different results, changing numbers in the voter register, forms 34B which do not have serial numbers, forms 34B printed in non-standards formats, notes and data missing from the hand-over and take-over sections and pages missing from published forms 34B.

The group will further be calling upon the Supreme Court to determine whether the low turnout and boycott in some parts of the country affected the outcome of the election conferred mandate on the winner and whether it consisted an expression of consent to be governed.

They also want the court to revisit its own earlier decision and determine what it meant by ordering for a fresh election.

Fresh elections

They argue that in their understanding, fresh elections meant that IEBC should have opened the door for other interested contestants who didn’t participate in the August 8 poll and fresh nominations conducted by political parties.

The group says that failure to observe this constitutional requirement disenfranchised a section of the population and violated their rights to contest the presidency.

The group further argues that the election was not conducted by an independent electoral management body.

It hopes to use the statement by IEBC chairman Wafula Chebukati that he did not have confidence the commission could conduct a credible poll.

Reported by Ibrahim Oruko.