Why civil society leaders want Supreme Court to nullify repeat presidential election

President Uhuru Kenyatta (right) receives certificate from IEBC chairman Wafula Chebukati on 11th August 2017. [Photo:Wilberforce Okwiri/Standard]

Two petitions challenging the re-election of President Uhuru Kenyatta have raised six major questions about validity of the October 26 repeat presidential election.

Supreme Court judges are expected to consolidate the petition by Njonjo Mue, the International Commission of Jurists (ICJ) Kenya Chapter Chairman and Khelef Khalifa, the Muslims for Human Rights (MUHURI) Chairman, as well as another by former Kilome MP Harun Mwau.

Mue and Khalifa argue the repeat presidential election was so shambolic that the outcome is a mockery of a democratic exercise.

Through lawyer Julie Soweto, the activists hold that the Independent Electoral and Boundaries Commission messed up from the beginning of preparing for the repeat polls and ended up being hostages of third parties who dictated to them what to do.

“What they did cannot pass the constitutional test of a free, fair and credible election. Everything was done unlawfully, from including candidates who should have not been in the ballot to inflating the voter turnout and using illegal polling centres,” said Soweto.

They argue that Uhuru Kenyatta was not validly nominated to contest in the repeat polls, IEBC should have called off the exercise after Raila Odinga withdrew his candidature, massive irregularities and failure to meet constitutional thresholds.

Withdrawal of Raila and Kalonzo Musyoka

At the centre of the epic legal battle to stop Mr Uhuru Kenyatta from assuming a second stint at State House will be the withdrawal of the National Super Alliance (NASA) candidates.

The petitioners submitted that Mr Odinga and Mr Musyoka’s withdrawal automatically rendered the fresh election null and void, and the commission should have called off the exercise in accordance with the Supreme Court judgement of 2013.

“IEBC failed to consider the legal effect of a candidate’s withdrawal. The fresh presidential election was already dead based on the withdrawal, they could not revive it without following what is legally provided in the constitution,” said Soweto.

 They argue that since NASA candidates walked out of the race when there were only two candidates and before the re- admission of Third way Alliance candidate Ekuru Aukot, any decision to have more candidates could not have revived the contest.

They also argue that the opposition leaders  did not require  to formally withdraw by filing form 24A, as there were no nominations, and that the IEBC went ahead to use defective ballot papers having names of candidates who legally withdrew from the contest.

That argument has however already been countered in the petition by the Institute for Democratic Governance and Pokot South MP David Pkisong on grounds that the withdrawal did not have any effect on the just concluded repeat election.

According to the Institute and Mr Pkisong in their separate petitions at the Supreme Court, it is NASA to blame for the conflict after they came up with irreducible minimums meant to ensure that there would be no election.

 “Threats to ensure that the fresh election will not be held unless NASA’s irreducible minimums are not met mounted to a grave spectre of plunging the country into a constitutional crisis,” the court papers read.

Whether election failed to meet principle of Article 81 (e) on free and fair elections, the petitioners argued that whereas the constitution demands that the election be free from violence, intimidation, improper influence and corruption; the repeat polls was characterised by intimidation of electoral officials which could allow them to conduct a credible exercise.

They cited incidents where Mr Uhuru Kenyatta threatened Supreme Court judges soon after his August 8 win was invalidated, amendments to election laws spearheaded by Jubilee MPs, some Jubilee leaders wearing military uniforms and influence from the executive.

“On diverse dates leading to the election, persons dressed in police uniforms raided opposition strongholds and beat up the people while there were many instances of militia groups taking oath to intimidate voters,” said Soweto.

She claimed that Interior CS Fred Matiang’i was among senior government officials who threatened to unleash militia on opposition supporters and encouraged violence on Election Day, while also accused the president of using sate resources in his campaigns.

Illegalities and irregularities

According to the petitioners, IEBC used undesignated returning officers and other poll officials not properly gazetted to conduct the elections.

“In a number of constituencies and polling stations, the returning officers did not show up and the commission resorted to use people who were not gazetted. Any results prepared by the officials were therefore illegal and should not be recognized,” said the lawyer.

She also maintained that ballot papers printed for the repeat election were defective, given that it included the names of Raila and Kalonzo when the NASA candidates had legally withdrawn from the race.

In addition, the petitioners accused IEBC of relocating polling centres in some constituencies on the voting day thereby causing some voters not to exercise their rights.

They also raised issues with transmission of results, failure of KIEMS kits, the high number of voters without biometric records and discrepancies in Forms 34As recorded at polling centres which differed with the ones posted on IEBC portal.

“The audit by KPMG on the Voter Register showed only 5,000 voters were registered without biometric records. In the fresh election, IEBC claimed there were 1.6million voters identified without biometrics. This is a huge anomaly which points to existence of fraud,” said Soweto.

Division and infighting at IEBC

The petitioners claimed that the commission was sharply divided and was being influenced by external forces and could have not presided over a free and fair process.

They cited the fallout between IEBC chairman Wafukla Chebukati and Chief Executive Officer Ezra Chiloba, resignation of Commissioner Roseline Akombe, and the fact that some IEBC officials were being investigated as having contributed to the invalidated August 8 election.

The court will also be persuaded to determine whether IEBC could conduct a credible election despite being rocked by internal feuds.

 IEBC chairman, according to the civil society, told the public that the commissioners served the interests of the political parties they were affiliated to.

They argue the storm within the commission was as a result of skewed and vested interests which eroded the confidence gained before the election.

Failure to conduct election in 27 constituencies

The battle has also been drawn to the 27 constituencies that did not participate in the election. According to the civil society, the law requires that all the 290 constituencies should have a day to vote.

However, failure to conduct elections in the 27 constituencies in Kisumu, Siaya, Migori and Homabay is being blamed on NASA for calling on their supporters to boycott the exercise.

The Institute of Democratic Governance argued in their petition that the opposition is to blame for intimidation of the electoral commission officials and fueling war before the October 26 election.

"The people of Kenya were entitled to participate in a presidential election free from threats, fear, intimidation, violence and interference from their right to vote," the institute through lawyer Kioko Kilukumi argue.

Nomination of presidential candidates

The petitioners’ argument is that IEBC misunderstood the meaning of “fresh election” and failed to conduct fresh nomination exercise before gazetting the candidates.

They argue that since the court ordered for a fresh election, political parties ought to have gone back to the drawing board and conduct nominations.

“The commission erred by failing to acknowledge and realize that a dead election i.e. an election that stood vacated could not be revived,” the petition filed on behalf of the civil society by lawyer Julie Soweto also read.

This same issue has been raised by former Kilome MP Harun Mwau, who also wants the repeat election invalidated on account that none of the presidential candidates qualified due to IEBC’s failure to conduct nominations.