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

Business Daily (Kenya) - - FRONT PAGE - Brian Ngugi bn­gugi@ke.na­tion­media.com

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.

JEFF ANGOTE

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.

JEFF ANGOTE

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.

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