Fate of Raila’s petition lies in judges’ hands
The seven Supreme Court judges are expected to deliver their preliminary rulings on various issues before presiding over a pre-trial conference.
Hearing of the presidential election petition proper is set to start on Tuesday and be concluded by Friday, after which the judges must retire to write a judgment and deliver it on Monday.
Among the issues that the court will rule on today is a plea by President-elect William Ruto to strike out six Independent Electoral and Boundaries Commission (IEBC) commissioners as respondents in the petition filed by Azimio-One Kenya presidential contender Raila Odinga.
Ruto wants the commissioners, including vice-chair Juliana Cherera, struck off from the list of respondents.
The other commissioners named as respondents in the Raila petition are Abdi Guliye, Boya Molu, Justus Nyang’aya, Francis Wanderi and Irene Massit.
Ruto says only the commission as a body corporate and its chairman, Wafula Chebukati, should participate in the petition.
Ruto argued that the commissioners should not be named individually since the election was not conducted by the individuals.
Influence the outcome
The court will also rule on several affidavits, including the two by the Head of Public, Joseph Kinyua and the National Security Advisory Council, both of who have admitted meeting Chebukati but denied that they tried to influence the outcome of the presidential election. The two, as well as senior public officials at the centre of the petitions at the country’s highest court, are seeking to be enjoined in the case.
The proceedings of the case will be televised live to ensure that citizens can follow the arguments without having to attend court in person as part of strategy to manage crowds seeking to attend the open court sessions.
The responses and affidavits filed at the apex court by yesterday have exposed the intrigues that preceded the declaration of the presidential election results with parties alleging electoral fraud by the IEBC and with Chebukati accusing various officials of trying to force his hand.
Besides the preliminary housekeeping rulings and orders, the seven judges are also expected to determine whether they will grant orders for scrutiny and tallying of votes as sought by the Azimio coalition, which has challenged the declaration of Ruto as winner.
The judges will also rule on several prayers by various individuals and institutions seeking to be enjoined as interested parties or friends of the court. Among those seeking to be enjoin are David Mwaure and George Wajakoyah, both of who were presidential candidates, as well as the Law Society of Kenya (LSK) and the Attorney General.
LSK is seeking to be admitted as a friend of the court to argue, among others, why spoilt votes should be used to calculate the total votes cast and tabulate percentages for the various candidates.
A winner must garner at least 50 per cent plus one vote to avoid a re-run.
Ann Amadi, the Chief Registrar of the Judiciary, yesterday that the seven judges — led by Chief Justice Martha Koome — were already considering the applications and will deliver their decisions online before 11am.
“We have quite a number of interlocutory applications filed by different parties. There are those seeking to strike out the petition and some parties; there are those seeking to be included as interested parties, amicus curiae (friends of the court); some are seeking different orders, including scrutiny and retallying of the votes. These applications are being considered and all the rulings will be delivered to the respective parties electronically,” Amadi said.However, all the seven judges will be present for the hearing and determination of the petitions.
This is unlike in 2017 when a six-judge bench heard and determined the petition after Justice Ibrahim Mohamed opted out due to health challenges.
Amadi further confirmed that only four lawyers from each party will be allowed into the courtroom.
“Not everybody will be allowed to come in. The parties have large teams but the numbers will have to be restricted because the space cannot accommodate everybody,” she said.
“We know many people will want to participate by coming in but this will not be possible because we are allowing the media to broadcast to the public... We don’t want to run into problems with crowd management.”
Conflict of interest
Raila and his running mate, Martha Karua, have filed a petition challenging the declaration of Ruto as the president-elect on August 15.
The two have assembled a battery of over 40 lawyers to argue their case in their bid to nullify the results.
Ruto, on the other hand, has hired over 50 lawyers to defend his case while Chebukati has similarly engaged 26 law firms.
Opinion is divided on whether lawyers who have been declared as winners in various elections, such as governor, should be allowed to argue for their clients in court cases, given that a governorship is an executive function.
Senior Counsel Pheroze Nowrojee, former Director of Public Prosecutions Philip Murgor, senior counsel and Rarieda MP-elect Otiende Amollo are among the lawyers in Raila’s team.
On the other hand, Ruto has lined up 54 lawyers, led by Senior Counsel Fred Ngatia and Kithure Kindiki while IEBC has hired former AG Githu Muingai as its lead lawyer.
After sending out the preliminary rulings today, the Supreme Court judges will hold a pre-trial conference to frame the issues for determination. These are the issues that they will rule on on Monday.
At the heart of the petition would be whether IEBC and its chairman were right or wrong to declare Ruto winner of the election. The petition will also addresse the split within IEBC after two factions filed contradictory affidavits in the name of the commission, with one of the factions arguing that the election should be nullified and the other saying it should be upheld.
IEBC Chief Executive Officer Hussein Marjan has filed responses on behalf of the commission. Issa Mansour has also made submissions for the commission.
The Supreme Court will have to make a determination on the right legal representation for IEBC or whether to hear both sides.