By JILLO KADIDA
Posted Friday, August 20 2010 at 10:36
In Summary
Case against Kenya's new Constitution seeks:
-That all ballots be scrutinised and recounted.
-That results of the referendum as announced by the electoral commission on August 6 be declared null and void.
-That an independent audit be done on the software used in transmitting and tallying the results.
A case was on Friday filed at Kenya's referendum court seeking the nullification of the August 4 poll results, the total recount of votes and an audit of the electronic tallying software.
A polling agent who represented the religious groups during the referendum has gone to the Interim Independent Constitutional Dispute Resolution Court to have the results declared null and void.
The agent, Ms Mary Ariviza, had on Thursday filed a different suit at the High Court claiming the elections body, the Interim Independent Electoral Commission, had not published the referendum results in the format required by law. The High Court case was lined up for hearing on Friday, but was pushed to Monday to give time for the IIEC and the Attorney General to respond to the suit.
However, the dispute resolution court has exclusive jurisdiction on all matters touching on Kenya's new Constitution.
The new Constitution was expected to take effect from next Friday, August 27, in a public promulgation ceremony at Uhuru Park in Nairobi. The day has been set aside as a public holiday.
President Kibaki, all Cabinet ministers, Members of Parliament and other senior government officials are expected to take a fresh oath to respect and protect the new law.
On Thursday, however, Ms Ariviza had sought to block the plans to bring into effect the new Constitution, which the High Court certified as urgent.
Promulgation put on hold
And, if the referendum court allows the second case filed on Friday to continue, the Government will have to put on hold the promulgation until the case is determined according to the Constitution of Kenya Review Act, 2008.
The Act says that the petitioner should give notice of the petition to the Attorney-General and the Interim Independent Electoral Commission within seven days after the petition is made. They are also required to within the same period deposit two million shillings with the court as security against costs.
If security is not given, the Act adds, the petition shall be dismissed.
The hearing of a petition shall not commence until after the expiry of seven days after the publication by the Attorney-General of the notice, the review Act says.
In her case at the resolution court, Ms Ariviza is seeking three key orders:
That all ballots be scrutinised and recounted.
That results of the referendum as announced by the IIEC on August 6 be declared null and void.
That an independent audit be done on the software that the IIEC used in transmitting and tallying the results.
Ms Ariviza raises several grounds to back her quest to have the court grant the orders, one of which is the claim that the referendum process was flawed and marred with irregularities.
She claims the IIEC failed to train polling agents on time and that the polls body failed to facilitate the agents of the 'No' camp to be present at the constituency level to ensure that there is transparent counting of ballots.
The IIEC and the Attorney-General Amos Wako are also blamed for failing to advise the Government not to begin campaigns before civic education was over; and for discriminating against the 'No' team.
In a sworn affidavit in support of her case, Ms Ariviza claimed that administration police helped count votes with polling agents from the 'Yes' team and that the IIEC staff at her polling station were “Yes proponents.”
Additional reporting by Oliver Mathenge
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