Kenya on edge as it awaits court verdict

Nairobi. Today’s verdict by Kenya’s Supreme Court on the presidential election petitions portends far-reaching ramifications that could crush careers and possibly thrust the country into a constitutional dilemma.

On Friday, the seven judges of the apex court retreated to consider the petitions that have ‘paradoxical prayers’, including asking that President-elect William Ruto’s win be nullified, order for a repeat poll and at the same time declare the Independent Electoral and Boundaries Commission (IEBC) incapable of conducting a credible repeat poll.

The petitions by Azimio la Umoja-One Kenya Coalition presidential candidate Raila Odinga and his running mate Martha Karua and others also want the judges to declare IEBC chairman Wafula Chebukati unfit to hold public office.

The constitution provides that a repeat election has to be conducted within 60 days in the event of a nullification.

Disbanding the current commission and placing a new team in office would also require more time thereby going beyond the stipulated timeline for a fresh presidential election.

All this is happening before a hamstrung President Uhuru Kenyatta, who cannot make appointments of public officers, including commissioners of the poll body.

Article 134 of the constitution states that temporary incumbency begins “during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office.”

Constitutional lawyer Bobby Mkangi says that even if the Supreme Court nullifies the election, President Uhuru will not regain his powers to make appointments.

“He remains in that state until a new president is sworn-in. A nullification does not give him back his powers,” says Mr Mkangi.

The outcome of the petitions also threatens to split the electoral commission further making it near-impossible for the seven-member team to organise another poll without major public spat.

Vice-chairperson Juliana Cherera, commissioners Francis Wanderi, Irene Masit and Justus Nyang’aya disowned the results declared by Mr Chebukati and proceeded to declare the process as illegal and characterised with irregularities and illegalities.

Mr Chebukati, commissioners Boya Molu and Abdi Yakub Guliye defended the results.

In its consideration, the apex court can uphold the win by Dr Ruto in the absence of compelling evidence that the outcome was marred with illegalities and irregularities.

The seven judges by a majority decision could also nullify the win and order for a repeat election. Should the court issue this order and proceed to declare Mr Chebukati unfit to continue serving as IEBC chairperson, this could trigger a political storm as Dr Ruto is likely to reject having Ms Cherera preside over the election over her decision to reject the results that declared him the winner amid claims she was rooting for a Raila win.

Azimio la Umoja lawyers have also asked the court to declare Mr Odinga the winner of the August 9 polls in the event a recount of votes places him ahead of Dr Ruto. The apex court had ordered for recount in 15 polling stations, but 41 were scrutinised.

Retired CJ Chande’s team

Meanwhile, the High-Level Panel of Eminent Jurists that arrived in Kenya on 28 August 2022 to observe the proceedings of the 2022 presidential election petitions, under the aegis of the African Judges and Jurists Forum (AJJF), have completed their mission.

Read: Tanzania’s retired Chief Justice arrives in Kenya to head judges’ mission

The 2022 mission, which was headed by Retired Chief Justice of the Republic of Tanzania Mohammed Chande Othman, attended the Supreme Court hearings to monitor and document the process of the hearing of the petitions. Other members of the mission included Justice Henry Boissie Mbha of the Supreme Court of Appeal and immediate past President of the Electoral Court of South Africa, Justice Moses Chinhengo, AJJF Chairperson, Justice of the Court of Appeal of Lesotho and former Judge of the High Court of Zimbabwe and of Botswana, Lady Justice Lillian Tibatemwa-Ekirikubinza of the Supreme Court of Uganda, and Lady Justice Ivy Kamanga of the Supreme Court of Appeal of Malawi.

The mission did not carry out a merit review but rather an observation of the international human rights standards on fair trial, the role and independence of the judiciary in electoral dispute resolution and the context of the elections in the run-up to the presidential petitions.

The mission composition also allowed the various judges to draw lessons on case management for presidential election disputes, which can form the basis for experience-sharing on the African continent.

The mission commended the Supreme Court for its management of the court process, particularly in light of the complexity of the matter, which was evidenced by the fact that this was the first time it was handling seven presidential petitions, with multiple volumes of evidence, within the 14 days circumscribed by the Constitution.

The mission said in a statement on Saturday that the parties to the case were given sufficient opportunity to ventilate their cases, with a full day being allocated to the petitioners, a full day to the respondents and the final day for rejoinders and submissions on the scrutiny report.

Each side had full and competent legal representation, and the counsel’s conduct also allowed the court to effectively manage the time limit allocated for the hearings.

“The issuance of directions during the pre-trial conference, the scheduling of the hearings and the proper and effective delineation of the issues for determination from the multiplicity of grounds raised in the Petitions all demonstrated that the court was in charge of the process.

In addition, the live streaming of the court proceedings allowed Kenyans to follow the proceedings despite the limited access to the court premises,” the statement reads.