Uhuru, Raila lawyers called to set petition rules

By Wahome Thuku and Martin Mutua

Nairobi, Kenya: The Supreme Court which now has only till Saturday to rule on three elections petitions against President-elect Uhuru Kenyatta’s formal assumption of office on Monday convenes a status or pre-trial conference.

This is the legal phase through which all the parties to the petitions agree on how the cases will be heard before the six Supreme Courtjudges led by the President of the court, Chief Justice Willy Mutunga.

Top on the list of petitions are two by Prime Minister Raila Odinga.

The conference is provided for under Rule 9 of the Presidential Election Petition Rules and must be held nine days after the filing of the petition.

Today the court shall deal with preliminary and housekeeping matters before the actual hearing begins. The rules require that the hearing must start within two days after the pre-trial conference and will continue uninterrupted.

The judges have in the past week been holding long private sittings with the Supreme CourtRegistrar, going through all the papers and other material filed in court since Saturday last week.

“By the time the parties are coming to court for hearing, the judges will be knowing what kind of case they have,” said Chief Registrar of the Judiciary Ms Gladys Shollei on Saturday.

The court shall also formerly consolidate the three petitions and give directions on how they shall be heard and determined expeditiously.

It shall frame the contested and uncontested issues in the petitions. Some of the parties have filed their questions, which they want the court to determine and make declarations on. Raila has sought several declarations from the Supreme Court, among them those that could, if granted, force fresh presidential elections through invalidation of the recent poll.

The Coalition for Reforms and Democracy (CORD) presidential candidate in the just concluded race also wants the court to declare the entire voters’ register as well as the election itself flawed. The Prime Minister is also seeking a declaration form the court that it finds no presidential candidate met the threshold of 50 per cent plus one vote to avoid a runoff. This is contrary to the IEBC’s insistence that Uhuru meet the threshold and should be sworn into office. 

Raila is also seeking to have the court, which has the exclusive and original jurisdiction to hear presidential election disputes, reverse IEBC’s declaration of Uhuru as President-elect. At the same time the PM wants the Supreme Court to declare that voters’ constitutional rights were breached and violated by IEBC right from the time of organising the elections up to the end.

Declaration

He is also seeking to have the court find that IEBC committed electoral offences under the Elections Act. If this declaration is granted then it means in the event that the Supreme Court rules in his favour and probably orders for a repeat of the polls then IEBC might be found ineligible to conduct the second round.

Raila has also filed an application in the same court seeking a forensic audit of the entire process. But both the IEBC and Uhuru have since responded to Raila’s application and dismissed it with several arguments.

On its part the IEBC accuses CORD of using incorrect provisional figures to challenge the voters’ register’s accuracy. It dismisses allegations of irregularities and say it declared the Jubilee alliance candidate “properly and constitutionally”.

IEBC argues the petition filed on behalf of CORD’s candidate, challenging the outcome of the elections is riddled with “misrepresentations” and “misconceptions” about the voters’ register, the tallying process and the legal framework guiding the election.

The commission led by its chairman Mr Ahmed Issack Hassan further says electronic technology was meant for transparency and cannot be a substitute to the manual process required by law. The electoral body further argues that Forms 36 (constituency totals) were not manipulated and that they contain no grave errors.

IEBC also says the voter identification results transmissions system was not designed to fail and was not abandoned. They further want the judges to find that the Supreme Court has no jurisdiction to set aside the entire election as CORD wants.

In another petition filed by three voters, the court is being asked to determine whether rejected votes should be included when working out the 50 per cent plus one vote rule. 

Ongoing debate

Another issue likely to be contested is whether the court can issue any other declarations in the petitions other than dismissing the case, validating or invalidating the elections.

There is ongoing debate as to whether or not the judges can order for a run-off between the top two candidates, or whether it can only send the country into another presidential election including all the other presidential contenders.

The parties have filed affidavits and statements by various witnesses whom they will be relying on to strengthen their arguments. Uhuru dismisses Raila’s petition saying it is replete with falsehoods and is a robust effort to exaggerate facts to secure him an unfair advantage.

The President-elect argues that the Constitution does not require IEBC to use electronic election transmission system as Raila argues. He further notes that the petition is an expression of bitterness from Raila’s loss of the poll and that the ultimate objective is to carry out a constitutional coup through the Supreme Court.

Both Uhuru and his designated deputy Mr William Ruto have produced video clips in which Raila and his supporters are captured making statements and comments on the elections before and after filing the petition.