The Supreme Court will from today and for the next five days be the theatre of an unprecedented presidential elections dispute in which the polls agency is at war with itself and the apex court is being invited, for the first time, to declare a winner in case of a recount.
In the case where thousands of documents full of mathematics and digital jargon, election rigging claims and sadfishing, the Supreme Court has until Monday September 5 to deliver its judgement on whether or not William Ruto was validly elected as the country’s fifth president.
Eight petitions have been filed challenging Dr Ruto’s win, while one by former Gatundu South MP Moses Kuria is seeking to block Azimio la Umoja One Kenya presidential candidate Raila Odinga from being declared president-elect even if a recount shows he won.
When the seven Supreme Court judges sit with lawyers and parties today to set the rules of the game, they will be faced with an unprecedented number of cases. Today’s pre-trial conference will determine how the case will be handled.
For the first time in Kenya’s history, a deeply divided polls body will be expected to defend itself against the highest number of presidential election petitions. The Independent Electoral and Boundaries Commission (IEBC), whichever way the court rules, could come out of the battle badly bruised.
On August 15, IEBC split into two factions after hours of in-fighting behind the scenes. On one side are Chairman Wafula Chebukati, chief executive Marjan Hussein Marjan and commissioners Abdi Guliye and Boya Molu, who want the Supreme Court to give the presidential election a clean bill of health.
Mr Chebukati’s team insists that commission delivered a poll that reflected the will of the people, despite attempts by some government agents and a section of commissioners to sway the election results in favour of Mr Odinga.
Just minutes before Mr Chebukati declared Dr Ruto the winner, four commissioners disowned the results, and have maintained their stand in court papers. This group has Vice-Chairperson Juliana Cherera and commissioners Justus Nyang’aya, Francis Wanderi and Irene Masit.
The four were appointed in September last year to replace another group that had a public fallout with Mr Chebukati.
Aside from painting Mr Chebukati as a dictatorial lone ranger, the group holds that the IEBC chairman set in motion plans to interfere with the election results last year before they assumed office.
Among the first things the apex court will have to settle is which of the two factions has authority to respond to the petitions on behalf of IEBC. Both factions have filed responses to the petitions.
Mr Chebukati’s team filed a response to the petition on behalf of IEBC last Friday through Iseme, Kamau & Maema Advocates insisting that the poll was free and fair. On the same day, Ms Cherera’s team filed its response to the cases and agreed with the petitioners in calling for a nullification of the election.
The Cherera team also wants a forensic audit of IEBC’s systems and electronic equipment to determine whether there was any interference with results transmission forms that tilted the election results in Dr Ruto’s favour. It is represented by lawyer Issa Mansur who defended Mr Chebukati in the 2017 petitions.
Dr Ruto, on his part, has filed an application seeking to throw out all commissioners from the case.
This will also be the first time in Kenya’s history that an Attorney-General will not oppose petitions challenging election results. Mr Paul Kariuki Kihara has indicated to the court that he will not challenge the petitions, save for the one filed by Mr Kuria, which he will submit cannot be heard at the Supreme Court.
This does not, however, mean that Mr Kariuki is in support of the petitions as he could opt to remain neutral. He is expected to join the case as amicus curiae as was the case in 2013 and 2017.
Yesterday, the National Security Advisory Council (NSAC) applied to get audience before the court, limited to filing responses to allegations by Mr Chebukati’s camp that it tried to influence the election outcome in favour of Mr Odinga.
The NSAC, which has denied the allegations, is represented by the Attorney-General.
Yesterday, Judiciary Chief Registrar Anne Amadi said only four lawyers from each party will be allowed to attend the pre-trial conference. At the conference, the Supreme Court is likely to merge all the petitions into one, before setting the rules.
Each party will be told how much time they will have to submit their case to the judges. Petitioners are usually permitted more time to present their arguments.
The judges will also determine the participants, which could mean making a determination on Dr Ruto’s application to kick all IEBC commissioners from the cases, save for Mr Chebukati.
The President-Elect says that under Article 140 of the constitution, only the IEBC and its chairperson can be sued in cases challenging election results.
The Law Society of Kenya (LSK), which has applied to be admitted to the case as amicus curiae, will likely also know its fate at the conference. Each party will also agree on which of its lawyers will address the court. A day later, the Supreme Court will get to hear the parties.
The lead plaintiffs in the eight petitions seeking nullification are Mr Odinga, activist Khelef Khalifa, Busia Senator-elect Okiya Omtatah, Mr Reuben Kigame, Youth Advocacy Africa, John Njoroge Kamau, Juliah Nyokabi Chege and David Kariuki Ngari.
Focus and pressure has now shifted to the seven judges, who must hear all parties and by Monday next week decide whether the presidential election should be nullified or upheld.
Among the key things likely to be considered by the court is whether Article 138 of the constitution gives power to tally and verify election results to all commissioners in the IEBC, or just the chairperson.
Mr Odinga and Mr Omtatah argue that the figure is based on the total number of registered voters. But the IEBC says the turnout is calculated using data captured in voter identification kits.
The petitions have also asked the Supreme Court to determine that the results declared by Mr Chebukati excluded 27 constituencies, which would have changed the outcome. While Mr Chebukati’s faction insists that the 27 constituencies were factored in, Ms Cherera’s side differs.
Mr Odinga’s 44-lawyer team will be led by four Senior Counsels – Pheroze Nowrojee, Philip Murgor, Okong’o Omogeni and James Orengo. The former Prime Minister’s long-serving lawyer and personal friend Paul Mwangi will be on record, meaning all documents will be filed through his law firm. Mr Mwangi will also lead a large team of researchers and other advocates that will offer support from the fringes.
In Dr Ruto’s camp are at least 54 lawyers, led by three Senior Counsels – Fred Ngatia, Kioko Kilukumi and Kiragu Kimani. All documents will be filed by Kithure Kindiki’s law firm. Prof Kindiki will also lead the research team.
Mr Omtatah, who has spent over a decade pursuing his activism through the courts, is also a force to be reckoned with despite not holding a law degree.
He has won many court battles against government agencies, especially in the constitutional and judicial review divisions.
Youth Advocacy Africa will be represented by Njoki Mboce & Company Advocates, while Mr Njoroge has opted for W. G. Wambugu & Company Advocates.
Mr Kigame will be represented by Asembo & Company Advocates, while Ms Chege will retain the services of Kinoti & Kibe Advocates.
On the other side of the bar is a mix of first-timers and judges who have presided over presidential petitions in the past.
While Chief Justice Martha Koome is atop the court’s structure, she will be presiding over a presidential election petition for the first time. She was a Court of Appeal judge in 2013 and 2017.
Justice William Ouko is the only other first-timer in presiding over the presidential petitions. He was also a Court of Appeal judge in 2013 and 2017.
Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola will be doing it for the third time. In 2017, they both voted in favour of a nullification in Mr Odinga’s petition.
Only Justices Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u, have presided over all four presidential petitions the country has witnessed under the 2010 constitution.
In 2013 they all voted to uphold President Uhuru Kenyatta’s win. In the first 2017 petition, Justice Wanjala voted for nullification while justices Ibrahim and Ndung’u voted to uphold. In the second election, they upheld the results.
