Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga and
Justice Mohamed Ibrahim at the Supreme Court on Sunday. The judges are
expected to rule on Nasa presidential candidate Raila Odinga’s petition
on Friday. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP
Kenyans will on Friday be eagerly awaiting the verdict of the
Supreme Court on whether President Uhuru Kenyatta’s win in the August 8
elections was valid.
Although they
did not indicate what time they will deliver their decision, the
justices, led by Chief Justice David Maraga, said they will notify
lawyers and the public on the time.
But
Mr Maraga, as a Seventh-day Adventist adherent and also president of
the court, will ensure that the decision is made before sunset, when
Sabbath starts.
Independent Electoral
and Boundaries Commission chairman Wafula Chebukati declared President
Kenyatta winner of the election on August 11, announcing that the
incumbent had garnered 8,223,163 against his closest rival Raila
Odinga’s 6,822,812.
The judges can
dismiss the petition altogether, meaning that President Kenyatta would
be deemed duly elected, or they can declare the poll invalid, sending
Kenyans back to the ballot in two months.
REJECTED VOTES
The rejected votes will play a key role in deciding whether President Kenyatta met the threshold of 50 per cent plus one vote.
However,
Mr Odinga, of the National Super Alliance, contests the win, arguing
that the poll was marred by massive irregularities and inconsistencies.
He says there were “grave inaccuracies” that were either as a result of negligence by, or the willful intention of, the IEBC.
The
Nasa leader argues that the poll agency adopted “a consistent pattern
of increasing” President Kenyatta’s figures but reducing his votes.
Among
the issues the seven judges will be grappling with are whether there
were irregularities in the poll and, if so, whether they were massive
enough to annul the results.
ATTORNEY GENERAL
In
his submissions in court, Attorney-General Githu Muigai said that “the
threshold required to disturb the election is such that the evidence has
to disclose profound irregularities in the management of the electoral
process”.
Whereas President Kenyatta,
through lawyers Ahmednasir Abdullahi and Fred Ngatia, says that a voter
should not be punished for the mistakes of poll officials, Mr Odinga
argues that the process should have been “clean”.
Mr
Abdullahi said that in 99 per cent of the cases, the court can only
invalidate a presidential election on the transgressions of the voter.
He
added that were the petition to succeed, the court would have to find
that the 15 million Kenyans who voted on August 8 do not count.
OVERTURN JUDGEMENT
The
issue of rejected votes was brought back to court once again as Mr
Odinga pleaded with the court to revisit the matter. During the 2013
election petition, it was argued that a ballot paper once rejected, or
declared void by law, is incapable of expressing any preference for or
against a candidate.
The rejected vote is, therefore, invalid and cannot be introduced into the percentage-vote tallying process.
Arguing
for the dismissal of this prayer, Mr Ngatia said nothing had changed to
convince the court to overturn the 2013 judgment.
“Rejected
votes cannot be taken into account in the final tally. It is a point we
argued in 2013 and nothing has changed to make us depart from it. There
should be uniformity in the judgments of the court,” Mr Ngatia said.
DISPARITIES
Another
matter the judges will be grappling with is the different sets of
results and disparities in votes between presidential, gubernatorial and
senatorial seats
Mr Odinga, through
his lawyers, submitted in court that the IEBC released five sets of
rejected votes, casting doubts on the validity of the final outcome of
the presidential result.
Although the
electoral body termed the numbers “mere statistics”, Mr Otiende Amollo,
for Nasa, said it cannot be true, arguing that the results in all the
platforms should be similar.
CONSTITUTION
The judges will also be deciding whether to depart from the 2013 decision on the interpretation of the Constitution.
Nasa
also claimed that scrutiny of the results forms revealed
irregularities, with a number of them not bearing the commission’s stamp
or watermarks, or were unsigned or missing serial marks.
In
the 2013 presidential petition, the Supreme Court dismissed the case,
saying the evidence brought before them failed to prove the alleged
irregularities.
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