New issues for determination in presidential election petitions
This is another crucial week when all eyes will again be trained on the Supreme Court where six judges, led by Justice David Maraga, are expected to decide Kenya’s political path.
Two petitions challenging the October 26 repeat presidential election have raised new grounds, with little similarities to the previous petition that nullified the August 8 polls.
Former Kilome MP Harun Mwau’s main argument is that President Kenyatta was not validly and legally elected given that he was not properly nominated in accordance with the Constitution to contest in the fresh poll.
On the other hand, human rights activists Njonjo Mue and Khelef Khalifa argue that the election was poorly done and mismanaged, and cannot by any standard be deemed to have been a proper and valid poll conducted in strict conformity with the Constitution and applicable laws.
Unlike in the August 8 petition, which nullified Uhuru’s win, five new issues have emerged that did not form part of the successful petition by National Super Alliance (NASA) candidates Raila Odinga and Kalonzo Musyoka.
Top on the table is the question of nominating a presidential candidate before the fresh election, which has been raised by both Mwau and the two civil society activists.
“At the time of going for the election, IEBC knew they had violated the Constitution and were bent on doing an illegal exercise. They slept on their job, only to wake up when it was too late to conduct the election in accordance with the Constitution as had been ordered by the Supreme Court,” says Mwau.
The two petitions are seeking a declaration that the acts of IEBC of failing to properly gazette presidential candidates for the election was unconstitutional and the outcome cannot be legally binding for the president-elect to continue serving.
The second issue is the effect of Raila and Kalonzo’s withdrawal from the race. According to Mue and Khalifa, the NASA candidates’ withdrawal automatically rendered the repeat poll null and void and IEBC should have called off the exercise.
“IEBC failed to consider the legal effect of a candidate’s withdrawal. The fresh election was already dead based on the withdrawal, the commission could not revive it without following what is legally provided in the Constitution,” say the activists.
The civil society members are also questioning the validity of the election after the IEBC failed to conduct the exercise in 27 constituencies when the Constitution demands that a presidential election must be conducted in each of the 290 constituencies.
In addition, they have brought in the infighting within IEBC, which they say affected the commission’s capacity to conduct a credible process in October 26.
The petitioners cited the fallout between IEBC Chairman Wafukla Chebukati and Chief Executive Officer Ezra Chiloba, resignation of Commissioner Roselyn Akombe, and the fact that some IEBC officials were being investigated as having contributed to the invalidated August 8 election.
The other new issue brought by the petition is the violence witnessed before and during the repeat poll, with Mue and Khalifa arguing that it compromised the validity of the election and violated a constitutional requirement that the election must be free from violence and intimidation.
However, the petition by Mue and Khalifa has some striking similarities to the previous one by Raila and Kalonzo.
Just like in the previous petition where NASA tactically abandoned the question of numbers, the petitioners have concentrated on the process that led to Mr Kenyatta getting over seven million votes.
“What they did cannot pass the constitutional test of a free, fair and credible election. Everything was done unlawfully, from including candidates who should not have been in the ballot to inflating the voter turnout and using illegal polling centres,” say the activists.
Both NASA and the activists’ petitions raise questions of illegalities and irregularities in transmission of results, failure of KIEMS kits, and inconsistencies on Forms 34A announced at the polling centres and those captured in the final results declaration.
NASA argued that the IEBC allowed 14,000 defective returns from polling stations and as a result, the total presidential votes cast exceeded those of other elective positions of governor, senators and MP by over 500,000 votes.
Mue and Khalifa have raised similar issues with transmission of results, the high number of voters without biometric records and discrepancies between Forms 34A recorded at polling centres and those posted on IEBC portal.
“The audit by KPMG on the voter register showed only 5,000 voters were registered without biometric records. In the fresh election, IEBC claimed there were 1.6 million voters identified without biometrics. This is a huge anomaly which points to existence of fraud,” they say.
Another similar issue raised in both petitions is the allegation that the IEBC used ungazetted polling stations and unauthorised polling officials to conduct the exercise.