President Uhuru Kenyatta has put up a spirited fight to demonstrate to the Supreme Court why it should not invalidate his election for a second time, even as NASA made a last-minute entry into the case.
The Jubilee candidate has filed a total of 13 affidavits sworn by, among others, the National Assembly Aden leader of Majority Aden Duale and chief agents David Chirchir and Winnie Guchu.
The President, in his response to two different petitions challenging his election, tackled the claims of alleged illegality of the October 26 election, and claims that the new election laws were passed to curtail use of technology in elections and alleged control of the electoral commission by his party Jubilee, among other things.
The two cases were filed by former Kilome MP Harun Mwau and activists Njonjo Mue and Khelef Khalifa.
Also pending before the court is another case, which is not an election petition but seeks the formation of a caretaker government.
In the replies, the President contends that Khalifa, being a registered member of ODM, cannot purport to file the case which arises out of the wrongdoing of his own party. It is ODM’s candidate Raila Odinga who withdrew from the last election, in effect sabotaging the exercise and as such his party cannot challenge the results.
According to Chirchir, NASA did not appoint any agents for the October 26 poll as the only ones present were agents of candidates who took part in the election.
On the issue of the Independent Electoral and Boundaries Commission being allegedly controlled by Jubilee Party to give a favourable election date, the court was told that this is a mere rumour.
The President argues that the election date setting was within the period stipulated by the Supreme Court and the IEBC, among other things, considered a suitable date with the form four and class eight national exams timetable in mind because schools are used as polling centers.
As a result the claim that it was being controlled by Jubilee does not even arise, the court was told.
The Supreme Court was also told that the new election laws complained of did not in any way seek to diminish the role of technology in elections.
To the contrary, Duale said, the new law only sought to provide clarity on what would happen in the event that technology fails, with a view to securing the credibility of the election results.
Mue and Khalifa had argued that the decision by Parliament to pass new election laws has an effect of opening the election results to manipulation and signals voters that it would not be possible to successfully challenge the election results, even if they were unconstitutional.
But Duale believes that the two have misunderstood the Constitution and the law on the role of Parliament as lawmakers.
The new laws, he said, aim at remedying one of the key issues that came up at the Supreme Court, touching on lack of clarity in relation to the law on transmission of Presidential results.
Duale said Parliament moved to amend the Election Laws to cure what the Supreme Court had pointed out when it voided Uhuru’s
August 8 victory.
“During the hearing of the Presidential election petition, it was evident that there was lack of clarity in the law relating to the transmission of Presidential results and the complementary system envisioned under Section 44 of the Elections Act,” he says.
He adds: “Consequently, and in view of the above interpretation challenges, Parliament sought to bring clarity to the enabling law and regulation, and secure without doubt the expectations regarding the conduct and management of the election, as well as the parameters for invalidation of an election”.
President Uhuru will be represented by more than 15 lawyers in the legal battle, among them Fred Ngatia, Hannan el Katiri, Ken Ogeto, Kimani Kiragu, Katwa Kigen, Tom Macharia, Gideon Solonka, Mayian Sankale, Hillary Sigei, Carol Githae and Annette Kithu.
On its part NASA is accusing the President and the electoral body of engaging in malpractices.
Consequently, it wants the Supreme Court to take issue with Uhuru’s statements following the nullification of the August 8 polls targetting the judges
who voted to annul his win.
In an affidavit, the party head of presidential campaign, Musalia Mudavadi,
accuses the IEBC, saying it frustrated all efforts made to hold its commissioners accountable for the illegalities and irregularities committed in the August 8 polls.
Had the commission agreed to resolve the issues, Mudavadi says, NASA would have participated in the fresh polls.
“On October 10, 2017, after evaluating the atmosphere of violence and
intimidation that had been created by the 3rd Respondent (Uhuru) and the failure of the 1st and 2nd Respondent, the IEBC and Chairman Wafula Chebukati, to meaningfully engage and implement reforms and changes the 4th Respondents (NASA) had suggested aimed at creating a level playing field for all the Presidential candidates, NASA resolved to withdraw its candidate from the Presidential race,” adds Mudavadi.
Mudavadi further says the decision by Uhuru, through acting Interior CS Fred Matiang’i,
to withdraw the security detail of the two NASA leaders also formed of the basis to withdraw from the repeat race.
“In response thereto, NASA commenced a series of voter education drives to inform its supporters that its candidates were not part of any exercise to be conducted on 26th October, 2017,” he said in the 15-page affidavit.
Upon receiving documents from all he parties yesterday, the apex court is expected to conduct a pre-trial conference on Tuesday to iron out issues that need to be determined and time allocation to each party to argue its case.
The Justice David Maraga-led seven judge Bench will on Wednesday start hearing three cases related to the repeat presidential election.
Khalifa and Mue based their case on grounds that no nominations were carried out for the repeat presidential election, the principle of universal suffrage was violated and the IEBC was not independent, impartial or neutral.
The suit alleges the election was conducted in an environment rife with violence, intimidation and blatant breaches of the law.
“A nomination certificate issued to a candidate under Section 14 of the Elections Act is valid only for the election for which it is issued,” they said.
Mue argues Raila’s withdrawal ought to have automatically triggered vacation of the scheduled election.
The two petitioners accuse the IEBC chairman of making irrational, inconsistent and unpredictable decisions, especially in limiting the election to only two candidates and then amending the ballot to include other names.
Yesterday Thirdway Alliance leader Ekuru Aukot applied to be joined as an interested party in the petition challenging President Uhuru’s
October 26
win.