Judgement Day: Supreme Court delivers verdict on Raila petition

Seven Supreme Court judges will today decide whether to uphold President Uhuru Kenyatta’s re-election or order a fresh election within 60 days.

The landmark decision on the petition by NASA presidential candidate Raila Odinga will not only change the country’s political destiny, but will also be a precedence setter in determining election disputes filed over the August 8 General Election.

Chief Justice David Maraga, his deputy Philomena Mwilu, Judges Jackton Ojwang’, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola have for the past two days retreated to a secluded hideout to consider the tonnes of documents presented in court.

This will be in addition to transcripts of the long hours’ oral submission made by the parties which the judges and their team of legal researchers and clerks have to comb through to justify the outcome.

From the weight of the submissions and strength of the evidence submitted, the judges will have two options; invalidate or uphold President Kenyatta’s re-election. Uhuru, the Jubilee candidate, was declared winner of the presidential vote after he garnered 8,203,290 (54.27 per cent) votes against Mr Raila’s 6,762, 224 (44.74 per cent).

The first option will happen if the judges agree with Raila that the presidential election was not free and fair, and direct the Independent Electoral and Boundaries Commission to conduct fresh election within 60 days.

The second option will happen if the judges find the election was done in accordance with the Constitution and dismiss NASA’s petition. IEBC’s declaration of Uhuru as the duly elected president will therefore stand.

In making their final determination, the judges will be guided by five key issues raised by NASA’s legal team as forming the backbone of challenging Uhuru’s re-election. NASA’s case against President Kenyatta seemed to be only one while the remaining targeted IEBC.

The first question would be whether IEBC Chairman Wafula Chebukati announced the final result without 11,000 Forms 34A and whether some of the Forms 34A and 34B submitted were fake.

According to the Opposition, the missing forms accounted for over seven million votes, while those submitted by IEBC had no security features, others were not from the manufacturing company while others were not properly marked.

“The scenario was similar to that of Bermuda Triangle where no one knows how ships disappear. It is like the Forms 34A came and disappeared and were being held unlawfully to facilitate altering of the results,” said lawyer Pheroze Nowrojee.

But IEBC through lawyer Paul Muite maintained that the election was free and fair, and expressed the will of the people.

He submitted that Mr Chebukati never altered anything he got from the constituencies and polling stations and that the Forms 34A and 34B NASA was complaining about were provisional, and were posted in the public portal to help voters follow the results.

The IEBC legal team cited the report by the registrar of the Supreme Court Esther Nyaiyaki following an inquiry ordered by the judges which showed IEBC presented 41,451 forms 34A for scrutiny. The commission, during the audit, also presented 291 forms 34B and one form 34C which was used by Chebukati to announce the incumbent as the winner.

President Kenyatta through lawyer Fred Ngatia submitted that NASA’s evidence was false. He said that a tabulation of all the discrepancies cited by Raila would show that Uhuru would lose only 800.

 Final question

“Mr Kenyatta garnered majority votes in 39 counties. They gave him more than 25 per cent of votes as required by the law, we have presented to court evidence that forms 34A and 34B which had been presented as defective were correct and did not have any error,” said Mr Ngatia.

The second issue will be whether the presidential election was conducted in accordance with the law. It is not clear what time the Supreme Court will issue its judgement.

The final question which could influence the judges is whether IEBC complied with provisions of Election (Technology) Regulation 10 of 2017, and if the elections were fully electronic.

NASA argued that IEBC servers were manipulated and the election was not purely electronic as envisioned by the Election (Technology) Regulation Act. As a result, transmission of results to the National Tallying Centre was interfered with. But IEBC said they had the option of using either a purely electronic system or delivering results manually.

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