Circumstances requiring fresh nomination of presidential candidates, implication of withdrawal of a candidate before a repeat vote and vote boycott in certain areas are issues Supreme Court judges will settle today to guide future elections.
Six judges led by Chief Justice David Maraga will today give a detailed judgement explaining their unanimous decision to uphold President Uhuru Kenyatta’s win in the October 26 fresh presidential election boycotted by Opposition leader Raila Odinga, Uhuru's main challenger.
In the past 21 days, the six judges have been researching, drafting and refining the detailed judgement on their verdict that cleared the way for President Kenyatta to be sworn into office on November 28 for a second and final term.
The six-judge bench composed of Chgief Justice Maraga, Deputy Chief Justice Philomena Mwilu, Justices Jackton Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola have been working from their homes and offices.
A source within the Judiciary yesterday told The Standard that the final verdict is a shared workload, with each judge given an area to research on, as the six judges had given a unanimous verdict.
“We have been working from our offices and homes. Since we had unanimously agreed to dismiss the two cases before us, it was much easier to draft tomorrow’s (today’s) judgement,” said the judge.
“Since we had 15 questions for determination, we agreed each judge should take an area, even our boss (CJ) who has been busy had a task to do,” added the official.
The judges will either answer the questions touching on electoral process or will leave the duel hanging in the balance.
Low turnout
The first question is whether numbers matter with respect to the October 26 repeat presidential election that critics have claimed the low turnout undermined the legitimacy of Uhuru’s win.
At the same time, they tackle the question whether a nomination process is required in a repeat presidential election.
Another landmark decision is around the question of withdrawal of a candidate and electoral violence.
The three will in turn affect future elections.
“Its important that the court settles these two questions. We did not have a scenario where the presidential election was annulled,” said constitutional expert and university lecturer Anthony Mwangi.
Mr Mwangi added that the country would have a clear picture of the electoral cycle if the court spoke out on if candidates can abandon a contest after nullification and what should happen to constituencies marred with violence.
“The issue of abandoning an election is still grey in the country. If the judges will speak on this we will know whether one can force another election by simply throwing in the towel at any stage of a re-run,” he added.
In the case, the petitioners claimed that Uhuru’s re-election was not valid as there was no fresh nomination of candidates, there was violence, Raila withdrew and there were constituencies that did not vote.
The question of numbers and their importance in an election was also back in corridors of justice for determination.
The petitioners this time queried the low voter turnout during the October 26 repeat presidential election in which Uhuru won with 99 per cent of the vote.
But in their summary judgement on November 20, the Supreme Court dismissed the petitions as lacking merit.
The petitioners, activists Njonjo Mue and Khelef Khalifa, had argued that the incumbent’s legitimacy as a validly elected leader for the whole country was in question as only 38.8 per cent of Kenyans turned out to vote.
They claimed the low turnout in the re-run was a sign the electorate did not want Jubilee’s reign.
According to the petitioners, this year’s presidential vote had the lowest turnout since the asdvent of multi-party democracy in Kenya.
They claimed in 1992, 66.81 per cent voted, while in 1997 there was a 88.86 per cent turnout.
Multi-party democracy
In 2002, the number dropped to 57.18 per cent.
The number again spiked in 2007 with 69.09 per cent and in this year’s August 8 election the number grew to 79.49 per cent.
“The voter turnout in the fresh presidential election held on October 26, 2017 is undoubtedly the lowest ever since the introduction of multi-party democracy in Kenya,” the two claimed.
The Supreme Court in its majority decision had ruled that numbers did not matter as long as the process was flawed when they nullified the August 8 presidential vote of which Uhuru was declared winner with 8.2 million against Raila’s 6.4 million.
The majority judges reiterated that the procedure through which the president is elected is what matters.
“Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution,” they ruled.
