D-Day as judges rule on petition
The Supreme Court will today determine the election petition challenging the outcome of the August 9 presidential race.
Seven petitions were consolidated into one and the judges heard the case for three consecutive days last week before retiring on Friday to prepare their verdict.
All eyes today will be on Chief Justice Martha Koome who leads six other judges in reading the final verdict that will either make-or-break the case challenging the declaration by IEBC chairman Wafula Chebukati that Deputy President William Ruto had won the election.
The judgment, which is anxiously being awaited by Azimio-One Kenya presidential candidate Raila Odinga, President-Elect Ruto, the electoral agency and Kenyans at large, will focus on nine issues that were outlined by the court during the hearing.
“The Supreme Court will hear and determine nine issues regarding the presidential election petition,” said Chief Justice Koome during the pre-trial conference on Tuesday.
The nine issues that the court will determine today are;
Whether the technology deployed by the Independent Electoral and Boundaries Commission (IEBC) for the conduct of the August General Election met the standards of integrity, verifiability, security and transparency to guarantee accurate results.
Delayed elections
Whether there was interference with uploading and transmission of Forms 34A from the polling stations to the IEBC public portal.
Whether there was a difference between forms 34A uploaded on the IEBC portal, those received at the National Tallying Centre, and those issued to various agents.
Whether postponement of the governorship election in Mombasa and Kakamega counties, parliamentary election in Kitui Rural, Kacheliba, Rongai, and Pokot South constituencies and electoral wards in Nyaki West in North Imenti constituency and Kwa Njenga in Embakasi South constituency resulted in voter suppression to the detriment of petitioners.
Whether there were unexplained discrepancies between the votes cast for presidential candidates and other elective positions.
Whether the IEBC carried out the verification, tallying and declaration of results in accordance with the provisions of Article 138(3) (C) and Article 138 (10) of the Constitution.
Whether the declared president-elect attained 50 per cent plus one vote of the votes cast in accordance with Article 138 (4) of the Constitution.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election
What reliefs and orders the court can issue or grant.
Although there are two clear pathways for the judges, they could still opt for a third one. The first two are either to uphold the election, thus paving the way for Ruto to be sworn in. The second is for them to nullify the election and order a fresh one within 60 days.
The third option is to make rulings on each of the nine issues above, including making a declaration on whether Chebukati acted with the law.
All three have major political implications. There were originally nine petitions filed at the Supreme Court challenging the declaration of Ruto as president-elect, but two, one filed by Moses Kuria and another by Reuben Kigame were struck out.
The court further consolidated the seven into one with Raila Odinga and Martha Karua being made the primary petitioners although their case had originally been marked as petition number five.
Koome, who is slightly over a year into her current role, will be facing another defining moment of her career, with both sides of the political divide and their supporters expecting her and the other six judges to rule in their favour.
Court proceedings, which took place last week, provided room for an epic battle between Raila’s and Ruto’s legal teams, although the IEBC and other interested parties also had their day in court and were ably represented.
All the parties had hired senior counsel to represent them during the case heard at Milimani Law Courts premises where the Supreme Court was domiciled for the duration of the petition.
If the judges uphold the petition, then Raila will have scored a major victory, and if they order a fresh election, he will have a fresh stab at clinching the presidency. If, however, they uphold the election, then Ruto will have walked away with the crown.
However, whichever way the judges will rule will expose them to praise and criticism in equal measure by either of the two sides since there can be only one winner.
Sour relations
If the majority of the judges uphold the decision by Chebukati to declare Ruto the winner of the election, then the president-elect will be sworn in a week. However, if they overturn Chebukati’s decision, fresh elections will be held within 60 days.
Koome’s predecessor, Chief Justice emeritus David Maraga, nullified the 2017 presidential election, a bold move that earned him both praises and criticism.
A section of Kenyans applauded him for having the courage to invalidate President Uhuru Kenyatta’s win, while the other condemned him, arguing that he intended to throw the country into chaos.
A day after the nullification, President Kenyatta said that the country had “a problem” with its Judiciary that must be fixed.
“We shall revisit this thing. We clearly have a problem,” he said before embarking on his second re-election campaign.
Maraga’s tenure, thereafter, was characterised by frustrations with President Kenyatta declining to appoint 41 judges that had been appointed by the Judicial Service Commission.
Maraga claimed the President’s refusal to swear in the judges despite court orders requiring him to do so caused near paralysis of court operations and a backlog of cases.
“The President has left me no option but to raise the matter through this public statement. It will be a dereliction of my duty if I do not raise Wanjiku agonies in my domain. At least let her know that I share in her frustrations,” Maraga said in 2020.
After Chief Justice Martha Koome assumed office, President Uhuru appointed 34 of the judges but left out six others, sparking yet another controversy.
The matter regarding the appointment of the six judges is still pending at the Court of Appeal.
