The stage has been set for an epic legal battle at the Supreme Court starting today as Azimio-One Kenya flagbearer Raila Odinga moves to challenge Wafula Chebukati’s declaration of UDA’s William Ruto as president-elect.
Raila and Azimio are likely to ask the Supreme Court to tally the votes of the presidential election results afresh.
Sources with Raila’s legal team yesterday told Nairobi Today that the Azimio flagbearer was unlikely to ask the court to annul the election. According to the sources privy to the affidavit being compiled by the Raila team, he intends to use four main grounds in the petition; the discrepancies in numbers in announced presidential results in Ruto strongholds of Mt Kenya and Rift Valley; manipulation of Forms 34A that led to alleged posting of fake forms on the IEBC portal; failure to account for spoilt votes and the decision by Chebukati to run the affairs without involving his colleagues.
Top lawyers
Raila has engaged a team of top lawyers who are scheduled to file the petition ahead of today’s 2pm deadline. It is expected that the electoral commission, its chairman Chebukati, Ruto and his running mate, Rigathi Gachagua, will be among those listed as respondents.
Over the weekend, lawyers representing all four camps were holed up in separate closed-door meetings to gather evidence, plan arguments and strategise on how to successfully prosecute or defend their respective positions.
The Supreme Court has 14 days, starting today, to hear and determine the case. It has at least two options; declare the election null and void and order a re-run, or uphold the results. However, these are not the only options available to the court as its verdict will depend on the prayers made by Azimio and Raila.
Raila and Azimio are leaving nothing to chance and have assembled a team of over 30 lawyers and experts to argue their case. The team will be led by, among others, new entrant, Philip Murgor, James Orengo, Otiende Amollo, Tom Ojienda, Pheroze Nowrojee and Paul Mwangi.
Defend UDA position
UDA and Ruto, who also belong to the Kenya Kwanza Alliance, are reported to have hired Kithure Kindiki, Kioko Kilukumi, Katwa Kigen, Nelson Havi and Muthomi Thiankolu to defend their position.
Most of the lawyers on both sides were involved in the 2017 presidential election petition and only a few new faces will be making a first-time appearance.
Meanwhile, IEBC has picked former Attorney General Githu Muigai to head its legal team. In the 2017 case, as AG, he was enjoined as a friend of the court. This time around, he will be in the defence team.
As a friend of the court, known as Amicus Curiae in legal jargon, the then Attorney General was an independent respondent and only offered his legal opinion to the bench in his capacity as the government’s chief legal advisor.
Raila and his running mate, Martha Karua, yesterday said they have credible evidence to challenge the declaration of Ruto as president-elect in the August 9 presidential election. Raila has already rejected the results announced by Chebukati last Monday. He described Chebukati’s action as illegal and unconstitutional and, as a result, the declaration of Ruto as winner was null.
Yesterday, after a church service in Nairobi, Raila said: “The victory of the people will not be stolen. The victory of the people will be known because we know it”.
Karua reiterated Raila’s resolve to pursue justice, saying: “Without justice, there can’t be lasting peace. And for justice to happen, we need God.”
Last Monday, Chebukati declared Ruto the winner of the presidential contest with 7,176,141 (50.49 per cent) of the valid votes cast against Raila’s 6,942,930 (48.85 per cent).
“There is neither a legally and validly declared winner, nor a president-elect,” Raila said after the results were announced. “Chebukati’s announcement purporting to announce a winner is a nullity. He acted with gross impunity and in total disregard of the Constitution and our laws.”
The ODM party leader has since said he has strong evidence that Ruto and Gachagua did not get the mandate of the people but were announced as winners through a bungled process. He has argued that by declaring Ruto president-elect without following due process, Chebukati had infringed on the democratic rights of millions of Kenyans who voted in the August 9 election, but also exposed the country to ridicule regionally and internationally.
Part of the evidence that Azimio will be relying on includes alleged irregularities and illegalities by IEBC, such as inflated figures from some polling stations which, they allege, favour Ruto.
Others are Forms 34A and 34B, which the coalition says were missing or illegible. The lawyers are also likely to argue that the results the IEBC was streaming in its portal were unverified and therefore illegal.
The division within the commission, which led four commissioners to call a press conference to disown the results, is also likely to feature in the case. By yesterday, it was still not clear if the four, who include commission vice-chairperson Juliana Cherera, would appear as respondents or witnesses.
The commissioners — Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit — have maintained that the numbers released by Chebukati were erroneous and that he ought to have verified them before declaring the final results.
Prolonged anxiety
Azimio’s decision to move to court prolongs the anxiety that has gripped the country since Chebukati made the announcement at the Bomas of Kenya national tallying centre.
In 2017, the Supreme Court, then under Chief Justice David Maraga, nullified the election of President Uhuru Kenyatta and ordered a repeat poll. Although the judges did not fault President Uhuru’s victory, they found fault with the IEBC’s process that led to his declaration as winner. The case set a precedent by finding that the election had not been conducted in a verifiable manner.
This year, seven judges, led by Chief Justice Martha Koome, will also be in a history-defining moment when they start hearing the case tomorrow. The other judges are Philomena Mwilu (Deputy Chief Justice and Vice President of the Supreme Court), Njoki Ndung’u, Mohamed Ibrahim, Smokin Wanjala and Isaac Lenaola.
The suit, once filed, will essentially suspend the swearing-in preparations for Ruto and Gachagua, slated for August 30. Article 140 of the Constitution says: “A person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days of the declaration of the results of the presidential election.”
Once a petition is filed, the petitioner will have 24 hours to serve all the respondents, who will in turn have four days to file their responses. After that, the law grants the petitioner one day to file an interlocutory application, which in this case allows him to present any extra evidence as captured in the respondent’s response.
On the eighth day after filing the petition, the Supreme Court will hold a pre-trial conference to zero in on the main issues raised by the litigants. Hearing of the petition will start immediately after that. Once the judges reach a verdict, their decision will be final.
If the majority of the judges uphold the result, the president-elect will be sworn in on September 12. If they void the results, fresh elections will be held within 60 days.
