President Uhuru Kenyatta’s bid for a second term faces a first major hurdle as a fresh petition challenging his October 26 victory is filed at the Supreme Court today.
The Star has established that the petition will be filed by a coterie of civil society organisations, setting the stage for yet another major legal duel at the apex court.
The new suit will essentially bring to a halt the swearing-in preparations for Uhuru and his deputy William Ruto that was set for November 14.
The petition is likely to pose a major challenge for the Judiciary that has been under intense pressure after the David Maraga-led team historically voided Uhuru’s win on September 1.
An unshaken Maraga however swore his team was prepared to pay the ultimate price to protect the Constitution, despite threats from Uhuru to “fix” the court. Yesterday Maraga sat on the same pew as President Kenyatta when the two attended the ACK centenary celebrations.
Opposition leader Raila Odinga was also present.
The Supreme Court judges warned on September 1 that they will not hesitate to nullify another presidential petition if the letter and spirit of the Constitution are violated again.
“It [the judgment] ought to lead the IEBC to a soul-searching and to go back to the drawing board. If not, this Court, whenever called upon to adjudicate on a similar dispute will reach the same decision if the anomalies remain the same, irrespective of who the aspirants may be,” Maraga warned
Critics claim the civil society organisations heading to court are associates of opposition chief Raila Odinga.
Raila is not taking court action and has rolled out a series of plans, including product boycotts, as part of his battle against Uhuru. Yesterday Siaya Senator James Orengo said they will swear in Raila as President in two weeks. The ex-Premier will jet off to the US on Tuesday for a series of high-profile engagements, seen as part of ASA’s wider fight-back plan against Jubilee.
Names of the specific organisations that will file the petition remain a closely guarded secret. Interviews pieced together from multiple sources said there are fears of a State raid – akin to the assault on the NASA tallying centre on August 4 that nearly grounded the opposition.
“I want to assure you that there would be individuals who will be walking to court tomorrow,” Ndung’u Wainaina, Executive Director, International Centre for Policy and Conflict, told the Star, without details.
Already, the NGO Coordination Board has summoned officials of three organisations in what is seen as a fresh onslaught on those planning to file the petition.
Inuka Trust headed by anti-graft czar John Githogo, the Katiba Insitute, associated with Prof Yash Pal Ghai, and Muslims for Human Rights (Muhuri) headed by Khelef Khalifa, are among organisations that were summoned. In a press statement on November 1, Kura Yangu Sauti Yangu, a coalition of NGOs, lifted the lid on what could be part of the lobby’s submissions in court.
The group said, for instance, that the IEBC voter register had changed four times since it was gazetted in June. During the August 8 polls, the Wafula Chebukati-led IEBC said there were a total of 19,637,061 registered voters. This changed to 19,611,366 in the October 26 vote.
“The number of registered voters announced by Chebukati differed from the gazetted number of the Register of Voters, both at the national and county levels. In fact, Chebukati’s announced numbers match what is in the gazetted register in only 4 of the 48 counties,” the group stated.
The rights group also claimed Chebukati got his own math wrong from statistics in respect to three presidential candidates, including Uhuru.
According to the team, Uhuru’s aggregate tally of votes from constituencies comes to 7,583,895 and not the 7,483,895 declared by the Commission, a difference of 100,000 votes.
KYSY has also identified what it claims are blatant doctoring of the results, especially in Garissa county.
For instance, in Bulla Mzuri Market Centre, Garissa Township Constituency, Form 34A records total valid votes as 96, but Form 34B records total valid votes as 496 for this station.
The lobby also raised questions on the validity of constituency results where only a handful of polling station results were obtained.
For instance, in West Mugirango, Form 34B indicates that the returning officer received only 1 out of 147 Forms 34A.
This was also the case in Kisumu West, where the RO received only 9 out of 142 Forms 34A.
Wainaina said the Supreme Court has no option but to nullify Uhuru’s victory because the vote falls way below the constitutional threshold.
“If you go to Kakamega county, for instance, it has 726,000 registered voters. Only about 40,000 voted. Which means even with 265 constituencies having voted, we have close to 113 constituencies or more where voting was less than 20 per cent. In fact, most of them were between 0.1 per cent to about 0.7 per cent,” Wainaina told the Star.
“Does that election become constitutional? Can that person who got those votes claim the legitimacy, the mandate and consent to govern? Does that person exercise the sovereignty of the people?”
But it would be difficult to invalidate Uhuru’s reelection after the radical election amendments became law on Thursday.
The Jubilee-championed changes makes it mandatory that a petitioner must prove in court that violations to the Constitution or any electoral law significantly alter the presidential outcome as declared by the IEBC.
“A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that the non-compliance did not substantially affect the result of the election,” Section 83 of the new Election Act states.
However, the laws have been challenged in the High Court as unconstitutional by the Katiba Institute.