Petition filed in Kenyan top court to challenge Kenyatta's election victory

Former lawmaker in court over validity of October 26 poll.

A box containing documents of the presidential election petition by Harun Mwau are taken to the Supreme Court on November 6, 2017. Mr Mwau is challenging the election of President Uhuru Kenyatta. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

IN SUMMARY

  • President Uhuru Kenyatta was declared winner after his main challenger Raila Odinga pulled out of the race.
  • The petitioners argue that the election was characterised by violence, intimidation and corruption.

Kenya's Supreme Court has once again being invited to determine the legality of the October 26 presidential election after former Kilome MP Harun Mwau filed a case challenging the outcome.

President Uhuru Kenyatta was declared winner after his main challenger Raila Odinga pulled out of the race.

There were indications that rights groups would file at least four more petitions last evening.

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Nominations

Mr Mwau says the Independent Electoral and Boundaries Commission (IEBC) violated the law by failing to subject candidates to nominations.

“By refusing to conduct fresh nominations, IEBC and its chairman (Wafula) Chebukati violated the Constitution, thereby denying citizens the right to vote or stand for the election,” Mr Mwau says.

The petition was filed when the State and lobbies engaged in a cat-and-mouse game over filing of the cases.

The Nation learnt that among those who were to file petitions before the midnight deadline were rights activists Khelef Khalifa and Njonjo Mue.

Violence

According to the pair, no nominations were carried out for the election, the principle of universal suffrage was violated, the electoral commission was not independent, impartial or neutral and the poll was conducted in an environment of violence and intimidation.

Four of the six sitting Supreme Court judges annulled the August 8, 2017 presidential election, citing illegalities and irregularities in the petition filed by the opposition National Super Alliance's candidate Raila Odinga.

It ordered a new poll within 60 days.

Mr Mue, the chairman of the Kenya section of the International Commission of Jurists, in his affidavit, says IEBC held the election rerun despite Mr Odinga’s withdrawal from the race.

The withdrawal, he argues, automatically triggered a vacation of the scheduled election.

Candidates

Mr Khalifa is the chairman of Muslims for Human Rights and is a former commissioner at the Kenya National Commission for Human Rights.

The petitioners take issue with the decision to arbitrarily add candidates to the ballot, including Mr Shakhalaga Khwa Jirongo, who had been declared bankrupt, an order later lifted by the Court of Appeal.

The petitioners accuse Mr Chebukati of making “irrational, capricious, inconsistent and unpredictable decisions”, especially in limiting the election to two candidates and amending the ballot later to include six others.

“IEBC thinks the law is a nuisance and only follows it when it wants to or when it suits a particular predetermined outcome,” the petitioners say.

They also accuse the electoral commission and its chairman of dishonesty, ignorance of the law and incompetence “in failing to acknowledge and realise that a dead poll could not be revived when it acknowledged Mr Odinga’s withdrawal from the election but failed to act on it”.

“The October 26 election failed to meet the general principle stipulated in the Constitution of universal suffrage, based on the aspiration for fair representation and equality of vote,” the petition adds.

“The law says if two or more candidates for president are nominated, an election shall be held in every constituency.”

According to the petitioners, given the “environment of violence and intimidation”, it was clear some people would be denied the opportunity to take part in the election, which was not held in at least 25 constituencies.

Independence

A supporting affidavit by Mr John Paul Obonyo, an observer in Bangladesh slum, Mombasa, says the polling station at St Mary’s Primary School was full of excrement.

“The decision to hold the election in the face of the difficulties sent the message that votes in some parts of the country did not count,” the petitioners add.

They argue that the election was characterised by violence, intimidation and corruption.

According to them, the divisions in IEBC mean it is not an independent institution.

They insist that the commission did not administer the election in an impartial, neutral, efficient, accurate and accountable manner.

Some of the illegalities cited include the fact that the election was presided over by officials who were illegally and unlawfully appointed, as pointed out by the High Court.

People not gazetted as returning officers reportedly signed a significant number of poll results documents, thereby rendering them invalid.

The petitioners say polling stations were changed arbitrarily.

Mr Chebukati, they argue, gave inconsistent and contradictory statements on the percentage of turnout and on that basis, the petitioners want access to the Kenya Integrated Elections Management System kits and servers to ascertain and verify the total number of votes cast.

KIEMS kits

The petition says IEBC admitted that some result transmissions kits failed, subjecting voters to the complementary identification system.

They also want the court to direct IEBC to produce documents for every voter identified outside the e-register.

The petitioners want IEBC compelled to produce the storage device cards from the Kiems gadgets used, unused or expected to be used in the election, whether deployed or not.

They also want an order for scrutiny of Forms 32A and polling day diaries prepared by returning officers, as well as an audit of the returns of the election.

NASA leaders

The petition is supported by sworn affidavits from field observers and technology experts.

An NGO by the name the Institute of Democratic Governance filed an application in the Supreme Court seeking to have opposition leaders made responsible for violence during the poll.

Through Mr Kioko Kilukumi, the lobby accuses Nasa leaders of engaging in electoral malpractices and irregularities.

Another activist filed a petition to the Judicial Service Commission seeking to have three judges disqualified from hearing the case and sacked for integrity related issues.

It was also a day former Law Society of Kenya boss Apollo Mboya wrote to JSC registrar Anne Amadi seeking information regarding the case in which the Court of Appeal suspended a High Court decision that declared the appointment of returning officers unlawful just a day before the election was held.

Sources within the civil society group told the Nation that up to five petitions had been lined up to delegitimise the election rerun.

On Monday, the NGO Coordination Board ordered Kura Yangu, Sauti Yangu and We-the-People lobbies to cease their political operations, including poll related programmes.

NGOs
The order to suspend the operations came after the NGOs defied summonses by the board over claims of non-disclosure of their financial returns.

Officials of Muhuri, Inuka Kenya and Katiba Institute said the summonses were politically motivated, adding that it was part of a wider scheme to intimidate government critics.

In his petition, Mr Mwau says the electoral commission failed to regulate the nomination of candidates in their parties. 

“This renders the election invalid as it was conducted in an unconstitutional, irregular, illegal manner and in flagrant disobedience of the directions of the court,” Mr Mwau says.

IEBC, Mr Chebukati, Mr Kenyatta and Nasa are expected to file responses to the petition within the week.

Reported by Ibrahim Oruko and Sam Kiplagat.

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