Election petition: Inside the 9 issues to determine whether Ruto will be President
Chief Justice and President of the Supreme Court Martha Koome (centre) and Deputy Chief Justice and Vice-President of the Supreme Court Philomena Mwilu (third left) with Supreme Court Judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Mohamed Ibrahim, Njoki Ndung’u and William Ouko at the Supreme Court Building in Nairobi.
The Supreme Court has narrowed down the multiple claims and counter-claims in eight petitions challenging the results of the August 9 presidential election to nine issues, whose outcome will decide whether Deputy President William Ruto’s win will be upheld.
The seven-judge bench led by Chief Justice Martha Koome yesterday revealed the issues for determination moments after consolidating the eight cases into one petition, with former Prime Minister Raila Odinga’s suit taking up the role of lead file.
Chief Justice Koome’s team will first seek to determine, from arguments and evidence before the court, whether the technology deployed by the Independent Electoral and Boundaries Commission (IEBC) during the election met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
Uploading and transmission
The court will also determine whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the IEBC portal and whether there was a difference between Forms 34A uploaded on the portal and the forms that were presented at the national tallying centre at the Bomas of Kenya.
In the petition challenging Dr Ruto’s victory, Mr Odinga, the Azimio la Umoja One Kenya Coalition Party presidential candidate, and his running-mate Martha Karua, say the results were interfered with.
Mr Odinga also claims that a team of hackers infiltrated the IEBC results transmission portal, intercepted forms from polling stations and replaced them with documents that stacked Dr Ruto’s votes tally.
Document interception
The document interception and replacement scheme, Mr Odinga claims, was done with the assistance of IEBC Chairman Wafula Chebukati and some electoral commission staff.
Among the pillars of Mr Odinga’s petition is that the IEBC’s postponement of gubernatorial elections in Kakamega and Mombasa counties, as well as parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and three wards affected voter turnout in his strongholds.
The Supreme Court has now adopted the claim as the third issue for determination in the presidential election petition. The elections were held on Monday after being postponed twice.
The judges will also rule whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions and whether the IEBC carried out the verification, tallying, and declaration of results as required by the law and the Constitution.
50 per cent plus one
Another issue to be determined by the court is whether Dr Ruto garnered 50 per cent plus one vote as required by Article 138 (4) of the Constitution.
Mr Odinga, alongside activist and Busia Senator-elect Okiya Omtatah, have argued that none of the candidates reached the threshold and the declaration made by Mr Chebukati on August 15 is a nullity.
“Therefore, it was wrong for the chairman to have rounded off the percentages for each party to two decimal points,” Mr Omtatah says, adding that by providing that the candidate who gets more than half of all the votes cast wins the presidential election, the Constitution leaves no room for any margin of error.
The court will also determine whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.
Orders to be granted
Lastly, the court will rule on the orders to be granted, which may include nullifying the election and ordering the electoral agency to conduct fresh elections within 60 days, upholding Dr Ruto’s win or cancelling the certificate issued to the Deputy President and giving it to Mr Odinga as he has requested.
The court also laid out the rules of conduct to be observed by parties during the hearing, which starts this morning.
Justice Koome directed the parties to observe punctuality and time allocated to each of them. She also reminded lawyers to respect the court and each other while adhering to the rules of the court. “We expect parties to conduct themselves with decorum.”
She warned advocates against discussing the merits of the case outside the courtroom, saying, the behaviour will not be permitted and warned that any party that breaches the rule will be punished.
No foul language
“We will not tolerate foul language and no extension of time as we will deal with submissions, which we have painstakingly gone through,” she said.
The court also said there will be no unnecessary movements or disruption during the hearing.
On time allocation, Mr Odinga, the main petitioner, has been allocated three hours to argue his case, while Mr John Njoroge, Youth Advocacy Africa, Mr Khelef Khalifa as well as Mr Omtatah have been allocated 30 minutes each. Dr Ruto’s team of lawyers has been allocated three hours, same as the IEBC faction led by Mr Chebukati, who are opposing the election petitions.
The team of breakaway commissioners led by vice-chairperson Juliana Cherera have been allocated one hour to be shared among the four officials.
Attorney-General Kihara Kariuki, who is not opposing the petition, will have 30 minutes to present his case while the court will take on board briefs filed by amici curiae (friends of the court), who include the Law Society of Kenya, the International Commission of Jurists-Kenya, and a team of ICT experts.
These are the issues the judges will consider:
- Whether the technology deployed by the IEBC for the conduct of the 2022 general elections met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
- Whether there was interference with the 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 Public Portal and the Forms 34A received at the National Tallying Centre, and Forms 34A issued to the Agents at the Polling Stations.
- Whether the postponement of Gubernatorial Elections in Kakamega and Mombasa Counties, Parliamentary elections 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 the Petitioners in Petition No. E005 of 2022.
- Whether there were unexplainable 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 Article 138 (3) (c) and 138 (10) of the Constitution
- Whether the declared President-elect attained 50%+1 vote of all 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 can the Court grant/issue?
