Eyes on Supreme Court as Uhuru and Raila close case
Seven judges now expected to retire into considering arguments and evidence presented before announcing their verdict Friday
Parties to the petition challenging the election of President Uhuru Kenyatta at the Supreme Court yesterday finished their submissions, leaving Kenyans waiting on the decision of the five men and two women who make the Bench in the highest court in the land.
Chief Justice David Maraga and his team of six judges were this morning expected to retire into private sessions to consider the arguments and documents presented in court, and make a decision on former Prime Minister Raila Odinga’s petition challenging the declaration of Mr Kenyatta as winner of the August 8, 2017 presidential election by the Independent Electoral and Boundaries Commission (IEBC). Justice Maraga and his team have until Friday
to peruse more than 50,000 pages of documents filed by the parties to the petition and deliver a judgment that will determine whether Mr Kenyatta shall be sworn in for a second term as president, or order a fresh election.
The closing arguments yesterday marked the end of 11 days of intense hearings and applications featuring close to 20 lawyers.
Attorney-general Githu Muigai and the Law Society of Kenya (LSK) were enjoined in the suit as Amicus Curiae (friends of the court) while two contestants in the presidential polls — Michael Wainaina and Ekuru Aukot — were granted appearance as interested parties.
Mr Odinga and his running mate, Kalonzo Musyoka, filed a 25,000-page petition on August 18 alleging gross violation of election procedures and manipulation of figures in favour of the incumbent, Mr Kenyatta.
The petition came as relief to millions of people whose businesses had come to a standstill for close to seven days after IEBC chairman Wafula Chebukati announced the disputed results, with many trying to figure out Mr Odinga’s next move.
Mr Odinga’s lawyers have poked holes into the validity of the forms 34A — which contain presidential election results from polling stations — he was supplied with after the polls and what the electoral agency showed in the public portal insisting the results were manipulated to favour Mr Kenyatta using a mathematical formula. Under the law, forms
34A are used to compile form 34B, which contains tallies from constituencies. Form 34C contains the final presidential results as declared by the IEBC chairman at the national tallying centre.
Mr Odinga argued that the IEBC compiled forms 34B and 34C without the primary document — form 34A — leaving Mr Kenyatta’s victory without a material basis and short of the constitutional requirement that any results be verified before announcement.
The IEBC on Monday claimed that forms 34A were inconsequential in the final tally of the presidential ballots and that Mr Kenyatta was validly declared the winner with 8.2 million votes with Mr
Odinga coming in second with 6.7 million votes. Only forms 34B are required for purposes of determining and declaring the winner of a presidential election, the IEBC argued, even as Mr Odinga’s lawyers replied that it could not be generated without forms 34A.
The IEBC and Mr Kenyatta offered a vigorous rebuttal to Mr Odinga’s petition insisting there were no violations of electoral laws to the extent that could warrant invalidation of the results that the IEBC chairman declared on August 11, describing Mr Odinga’s case as lacking in concrete evidence.
Mr Kenyatta and the IEBC also denied the existence of any predetermined mathematical formula or manipulation of results at the Bomas of Kenya national tallying centre.
There was a tense moment in court when the Supreme Court judges asked Mr Kenyatta’s lawyers to explain what happens in the event a voter who has been provided with six ballot papers chooses to only vote for one position.
One of Mr Kenyatta’s lawyers initially told the court that such ballot papers would fall under stray votes, but appeared to stumble on being pushed further.
Kamau Karori, one of the IEBC’S lawyers, stepped in to explain that such ballot papers are considered rejected votes.
“If you elect to vote for only one position, the other ballot papers that do not indicate who you’ve chosen to vote for — if they are still put in the box at the point of counting because you have not indicated who you are voting for — are classified as rejected votes,” he said.
Mr Kenyatta, through his lawyers, pleaded with the Supreme Court to ignore calls by Mr Odinga to include rejected votes in the final tally, adding that the numbers Mr Odinga has questioned are too insignificant to affect the overall outcome of the election.
DECISION TIME From left: Supreme Court judges Njoki Ndung’u, Smokin Wanjala, Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang’ and Isaac Lenaola at the court in Nairobi yesterday. Justice Mohamed Ibrahim was not present after he was taken ill. The judges are set to deliver their ruling on the presidential petition on Friday.
HOW I SEE IT Attorney-general Githu Muigai makes his submissions at the Supreme Court, as President Uhuru Kenyatta’s lawyer, Fred Ngatia, looks on yesterday.