Kenya General Election Series: Petitioning Justice Mutunga

Winston Churchill once commented at the height of WWII: “Never has so much been owed to so few.” Perhaps this would be the same sentiments held by most Kenyans after the Supreme Court of Kenya renders its decision on a Presidential Election petition filed there. Coalition for Reforms and Democracy (CORD) presidential flag bearer has petitioned the court to set aside the declaration of Jubilee Coalitions flag bearer, Uhuru Kenyatta as President-Elect.

The facts of the case emanate from the declaration of Uhuru Kenyatta as President-Elect of the Republic of Kenya. Since that time sympathizers and critics of both camps exchanged few choice words in both material and virtual reality. With each side exuding confidence that the court would rule in their favour, the debate has often degenerated into personality attacks devoid of decorum. In post I seek to shed light on the process so that people are not misled by sycophants in both camps on the position if the law.

First, the Supreme Court of Kenya has exclusive and original jurisdiction to determine all matters arising from a presidential election petition. This means there is no other court that can adjudicate this matter legally. Thus the court which currently has 6 judges holds the fate of the political leadership of this country. Depending on how they decide on the matter, Kenya could be swearing in a new president or head back to the polls for a fresh election.

Secondly, one must petition on certain specified grounds. According to rule 12 of the Supreme Court (Presidential Election Petition) Rules the grounds are validity of the presidential elections or challenging the declaration of a run-off in case there was no clear winner. As CORD’s petition deals with the validity of the presidential elections, I need not say much on the latter.

In the same breath, there are other sub-rules provided by rule 12. These include: validity of the conduct of presidential election, validity of the qualification of the President-Elect, commission of an election offence, validity of the nomination of a presidential candidate and other grounds as long as they are not frivolous, vexatious and scandalous. CORD’s petition, according to their public rallies, appears to be confined to commission of an election offence as well as validity of the conduct of the presidential election.

Thirdly, the court can decide either to dismiss the petition or to declare null and void the declaration of one Uhuru Kenyatta as the President-Elect. If the court dismisses the, to the chagrin of CORD supporters, the President-Elect would be sworn on the 7th day preceding the day the decision was made. If the court, however, find CORDs petition meritorious then it will be back to the polls within 60 days. But this would not be as straight forward as many seem to assume.

CORD accuses the Independent Electoral and Boundary Commission (IEBC) of bungling this election. In fact some of its top brass have likened to the defunct Electoral Commission of Kenya (ECK). How then can this same body conduct fresh credible elections? Would we be looking to recruit others to conduct the polls?

The voter register has also been faulted as having been tampered with. Could this mean that a fresh registration of voters would have to be conducted? How feasible is it to do it and produce a register within 60 days? These and other issues plague the decision of the court.

Before you roll your eyes and dismiss me as a Jubilee apologist as many have done, I would like you carefully consider the allegations and ramifications of each of the grounds presented before the Supreme Court for determination. If one says that the body conducting elections is defunct and the court agrees, wouldn’t it make legal sense to choose another one? Wouldn’t this recruitment have to pass through Parliament for approval? Would this process take 60 days as contemplated by the Constitution? Think about it.

Finally, there is the matter of what happens in the mean. There already exists a war of words brewing between the Prime Minister who is also CORDs presidential flag bearer and Francis Kimemia who is the Head of Civil Service. The latter is of the opinion that all Ministers and Assistant Ministers elected to various posts should resign their posts with immediate effect. This is because the Constitution 2010 does not allow one to hold to state offices at the same time. For your reading you may look at articles 153(3) and 180(2) as read with 193(2).

Be that as it may, the Prime Minister is adamant that the term of the Grand Coalition is not yet over, citing the same constitution. Section 12 of the 6th Schedule says that they are to hold office “…until the 1st general elections held under this constitution…”Some have interpreted it to mean until the President-Elect is sworn in and chooses a cabinet while other interpret it to mean the holding of the election.

It is of utmost importance that peace is maintained all through this process. I hope and pray that justice is not only done but is seen to be done. 

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