When the six Supreme Court judges emerge on Monday to deliver their judgment on the presidential election petition, they will be expected to give answers to at least five key constitutional and political contentions, which formed the basis of the case.
Monday is the constitutional deadline for the court to deliver its judgment on the petition by civil society activists Njonjo Mue and Khelef Khalifa, and a second one by former Kilome MP Harun Mwau, both of which are seeking to have the October 26 rerun nullified.
“We will deliver judgment on November 20. The exact time, you will be informed by the registrar,” Chief Justice David Maraga said as he adjourned the proceedings on Thursday.
NOMINATIONS
The petition was also heard by Deputy Chief Justice Philomena Mwilu, judges Smokin Wanjala, Jackton Ojwang’, Njoki Ndung’u and Isaac Lenaola.
The petition was also heard by Deputy Chief Justice Philomena Mwilu, judges Smokin Wanjala, Jackton Ojwang’, Njoki Ndung’u and Isaac Lenaola.
Justice Mohamed Ibrahim remains unwell and has not returned from overseas where he was taken during the hearing of the successful election petition by Nasa.
The first contention, and which the six judges will have to pronounce themselves on, is whether there was a constitutional requirement allowing the Independent Electoral and Boundaries Commission (IEBC) to conduct fresh nominations before the repeat poll.
According to the petitioners, given that this was a fresh election and not a continuation of the August 8 election, IEBC was required by law to conduct fresh nominations.
ILLEGAL
In their petition, Mr Mue and Mr Khalifa contend that the IEBC “did not conduct any nominations of presidential candidates in accordance with the Constitution and the law; the third respondent (President Uhuru Kenyatta) was not validly, procedurally and/or lawfully nominated as a presidential candidate”.
In their petition, Mr Mue and Mr Khalifa contend that the IEBC “did not conduct any nominations of presidential candidates in accordance with the Constitution and the law; the third respondent (President Uhuru Kenyatta) was not validly, procedurally and/or lawfully nominated as a presidential candidate”.
“The centrality of nomination of candidates in the election process or cycles is underscored by the fact that under Article 88 (4) (k) of the Constitution, it is one of the key responsibilities of the first respondent (IEBC).
“Without conducting a nomination, there was no basis for the fresh election on October 26, 2017, because the process for the election had not been initiated.
“The second respondent was operating outside the law and, therefore, the election was rendered invalid ab initio (from the start),” they argued.
CERTIFICATES
The issue of nomination was also the main argument of Mr Mwau’s petition, with his lawyers saying nominations are specific to elections and that the nomination certificate that was issued to candidates before the August 8 General expired with that election.
The issue of nomination was also the main argument of Mr Mwau’s petition, with his lawyers saying nominations are specific to elections and that the nomination certificate that was issued to candidates before the August 8 General expired with that election.
“Such nominations, being expired and spent, were and are not valid for the election held on October 26, 2017 or any other election,” Mr Mwau said in the petition.
During the proceedings, a lawyer for Mr Mwau, Macmillan Ouma, went further to protest that President Kenyatta needed a nomination certificate before the August 8 election even though he had participated in and been issued with a similar certificate before the March 2013 election.
His conclusion was that nomination certificates are specific to elections and could not be used in any other election other than the one they were issued for.
CONSTITUTION
On the other side, lawyers for President Kenyatta and those of IEBC held that there was no need for the latter to conduct fresh nominations after the nullification of the August 8 presidential election.
On the other side, lawyers for President Kenyatta and those of IEBC held that there was no need for the latter to conduct fresh nominations after the nullification of the August 8 presidential election.
IEBC stated that the fresh presidential election was unique “and for which there was no requirement for fresh nominations”.
Similarly, in his response to the question of nominations, President Kenyatta said “there is not a single constitutional or statutory provision, which requires that fresh nominations be conducted during a fresh election under Article 140 (3) of the Constitution.
“On the contrary, there are constitutional, statutory and judicial pronouncements that leave no shadow of doubt that nominations are not required during a fresh presidential election.”
JIRONGO
Closely related to the issue of nominations is whether Mr Cyrus Jirongo of United Democratic Party was properly nominated and gazetted as required by law.
Although IEBC had initially left out Mr Jirongo’s name from the list of candidates in the fresh presidential election, the decision was reversed on October 24 through Special Gazette Notice No 10562.
For the petitioners, Mr Jirongo’s inclusion was irregular because the law requires nominations and gazettement of candidates to be done at least 21 days to the election.
The former Kilome MP said IEBC “in a most non-transparent manner and in a manner lacking integrity” listed Mr Jirongo as a candidate 24 hours prior to the election.
RAILA BOYCOTT
Both IEBC and President Kenyatta have dismissed the petitioners’ argument that Mr Jirongo’s inclusion was unlawful and irregular.
Both IEBC and President Kenyatta have dismissed the petitioners’ argument that Mr Jirongo’s inclusion was unlawful and irregular.
It is now up to the judges to determine whether Mr Jirongo’s inclusion infringed any law and whether that should render the fresh presidential election null and void.
The effect of the withdrawal from the race by Nasa candidates Raila Odinga and Kalonzo Musyoka will also be an issue for determination.
Mr Mue and Mr Khalifa stated in their petition that IEBC ignored the withdrawal of Mr Odinga and Mr Musyoka by purporting to invoke the requirement that the candidate ought to have submitted Form 24A when the same was inapplicable because no nomination had been conducted.
MAIN ISSUE
IEBC, they said, was “consistently admitting/acknowledging that the fourth respondent’s candidate had withdrawn from the election, yet failing to act upon it by maintaining his name on the ballot”, which ought to have rendered the repeat poll dead.
IEBC, they said, was “consistently admitting/acknowledging that the fourth respondent’s candidate had withdrawn from the election, yet failing to act upon it by maintaining his name on the ballot”, which ought to have rendered the repeat poll dead.
Consequently, the petitioners said IEBC should have cancelled the poll and called for fresh nominations following the candidates’ withdrawal.
But in response, IEBC argued that although Mr Odinga and Mr Musyoka expressed an intention to withdraw, “the same had no legal effect having not been made in the prescribed format and instrument and within the prescribed time,”
President Kenyatta also said that the Nasa candidates’ withdrawal from the election through a letter “is not a legally recognised mode of withdrawal”.
VOTERS’ REGISTER
Also on the table for determination will be the effect on the October 26 election discrepancies and inconsistencies Mr Mue and Mr Khalifa noted in the result transmission forms, the claims of lack of integrity of the voters’ register, which they said exhibited different numbers at different times as well as the number of voters who were not identified biometrically.
Also on the table for determination will be the effect on the October 26 election discrepancies and inconsistencies Mr Mue and Mr Khalifa noted in the result transmission forms, the claims of lack of integrity of the voters’ register, which they said exhibited different numbers at different times as well as the number of voters who were not identified biometrically.
In the latter case, the petitioners argued that according to the IEBC, some 1.6 million voters could not be identified biometrically and as such, the commission should be able to produce forms 32A, which they signed as required by law.
But, President Kenyatta said only three per cent of the people who turned out to vote, or 229,318, could not be identified biometrically.
He also said the number of registered voters remained the same between June and October contrary to the petitioners’ claims.
VIOLENCE
The other issue for the judges to determine, it is expected, will be the petitioners’ claims of violence and intimidation and whether it was such that it impacted had on the credibility of the election.
The other issue for the judges to determine, it is expected, will be the petitioners’ claims of violence and intimidation and whether it was such that it impacted had on the credibility of the election.
All the parties in their submissions admit that there was violence.
However, the point of departure for the respondents is who initiated it.
But a more political question the judges will be grappling with is whether the court can nullify the presidential election for the second time having done so on September 1.
PUBLIC OPINION
During the hearing of presidential election petition lawyer Waikwa Wanyoike, for the petitioners, urged the judges to confront what they termed the elephant in the room.
During the hearing of presidential election petition lawyer Waikwa Wanyoike, for the petitioners, urged the judges to confront what they termed the elephant in the room.
“This court does not work on public opinion but the law. The Constitution demands it should be nullified if it doesn’t pass the test,” Mr Wanyoike said when he made submissions on the effect of universal suffrage on the conduct of the poll.
But President Kenyatta’s lawyer Fred Ngatia urged the judges to look at the common good of the country.
To him, the common good is dismissing the petition because, “You cannot vitiate an election on account of violence; violence which has been instigated to deny a majority their will to vote.”