Wednesday, March 27, 2013

Tension as Supreme Court Reviews Election Results

Chief Justice Willy Mutunga (third from left) leads the Supreme Court during the pre-trial conference on March 25, 2013. he other judges are (from left) Njoki Ndung’u, Jackton Ojwang’, Philip Tunoi, Mohammed Ibrahim and Smokin Wanjala Credit. Nation Group.
My cousins tell me that Nairobi is at a standstill as all wait for the Kenyan Supreme Court to issue its ruling on Saturday

The Kenyan Supreme Court ordered a recount of votes cast at 22 polling station. The re-tallying is meant to determine if the votes casted exceeded the number of those registered. The court also ordered the inspection of all forms 34 and 36 used by the IEBC in tallying the results.

AFRICOG and Odinga argued before the Supreme Court that various polling stations had increased Kenyatta’s number between when local polling stations announced publically their totals and when the numbers reached the tallying center. Since Kenyatta only hit the 50% mark by 8,400 votes, they are demanding the votes to bee invalidated. For example, in once center, Nyeri Country, they announced publically that Kenyatta won 53,252 votes but the election commission reported that he won 55,726. They are asserting that this would trigger a run-off election. (Washington Post, March 27, 2013)

The African Centre for Open Governance (AFRICOG), which is generally viewed as being on the CORD side, requested that the IEBC produce marked voter registers used during the March 4 election. They allege registers the court currently has in their possession (electronic) are not the registers actually used during the election (manual). Africog’s lawyer argued that over 70,000 voter discrepancies exist between the electronic and marked registers. Counsel Kethi Kilonzo explained that it was only the principal register that could verify the actual number of registered voters. IEBC’s lawyer Paul Nyamodi stated that the request to supply the registers was unreasonable and was filed late, therefore cannot be accommodated. He said that to gather all the registers in the 33,400 polling stations would take about 2 weeks but would gladly avail them at the petitioner’s expense. Chief Willy Mutunga said the court would decide on Wednesday. (All Africa, March 26, 2013)

At the end of the day,  the Kenyan Supreme Court rejected an application by Odinga to carry out a forensic audit of the IEBC information technology systems used during the election. The court stated the application was time-bared as it was filled 4 days after filing the petition. The application would require production of the IEBC’s entire IT system, which is not feasible. If the application would have been submitted at the time of the initial filing, it would have been possible for the court to order IEBC to provide the audit. (March 26, 2013)

Justice Philip Tunoi ruled that an additional affidavit (nearly 900 pages long) filed by Odinga will be removed from the records as they were filed after his initial petition. “The court said that it could not shoulder the burden of the omissions of the petitioners, who failed to make available all the affidavits in time or seek through an oral application, the leave of the court to file the affidavits.” There is no provision for additional affidavits in the Supreme Court rules, it is left to the court’s discretion.

The judges ruling on Saturday will focus on four core issues.
  • The first issue, he said, is: Whether the Third and Fourth Respondents (Uhuru Kenyatta and William Ruto) were validly elected and declared as President-elect and Deputy President-elect of the Republic of Kenya, respectively, by the Second Respondent (Ahmed Issack Hassan) in the Presidential Elections held on the 4th of March 2013.
  • The second is: Whether the presidential election held on March 4, 2013 was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all relevant provisions of the law.
  • The third is: Whether the rejected votes ought to have been included in determining the final tallies of votes in favour of each of the presidential candidates by the First and Second Respondents (IEBC and Chairman Ahmed Issack Hassan).
  • The fourth is: What consequential declarations, orders and reliefs should the court grant based on the above determinations. 

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