President-elect William Ruto Thursday defended his victory in the August 9 polls saying he won fairly and none of the petitioners has proven claims of rigging or interference to favour him.
Dr Ruto , through his lawyers, told the court that he had met the 50 per cent plus one threshold to be declared winner in the first round, and that his election met the standards required in the constitution and the applicable laws.
His lawyers, led by Senior Counsel Fred Ngatia, said that all the petitioners, including Azimio la Umoja One Kenya’s Raila Odinga , have made allegations that they have failed to substantiate.
The case before the Supreme Court, Mr Ngatia said, was borne out of what he said was difficulty in some politicians to accept electoral results, and the fact of a winner and a loser in any election.
Mr Ngatia said the work of the seven judges was to look for the substantive truth and if the court is able to ascertain the substantive truth, then the next important value is to try to get finality and stability.
He said the court has to resolve the case with stability and finality because Mr Odinga has repeatedly said he will not participate in a fresh election under the chairmanship of Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati.
Mr Ngatia submitted that the orders sought in the primary petition by Mr Odinga, apart from being contradictory, will take the country into a constitutional crisis.
“The incumbent in office cannot even appoint anybody into office,” he said, adding that granting the prayers sought by the petitioners would lead to “a crisis of monumental nature”.
Culture of accepting defeat
The lawyer said in the 2013 presidential election petition, he told the court that the problem with Kenyans is that they are unable to inculcate the culture of accepting defeat.
“It is time for finality and stability. In doing so, Madam Chief Justice, you will be sending another message to the political class – that this country does not belong to them. This country belongs to all of us,” he said.
Mr Ngatia said the petitioners have been unable to substantiate claims of infiltration or hijacking of forms 34A and replacing them with fresh ones that favour Dr Ruto.
“If that is true, from a point of law, show us one Form 34A that was hijacked mid-air and votes subtracted from the petitioner and added to that of Ruto’s votes. Or show us forms 34A that differ from the hard copy. Or show us a ballot box that people from outer space came and stuffed with ballot papers mid-air,” he submitted.
Lawyer Katwa Kigen also dismissed allegations that rigging was committed by third parties and senior employees of IEBC in concert with Dr Ruto’s agents. He maintained that there was nothing to show that Dr Ruto did something that could have amounted to collusion with IEBC.
“That is to say the wishes of voters are captured at the polling station,” he said, adding that what was happening at the National Tallying Centre at Bomas of Kenya was only verification and tallying of numbers and finally declaration of the winner.
He asked the court to expunge the affidavit of Mr Arnold Oginga saying being an advocate, he ought to have known that an affidavit without supporting evidence amounts to hearsay.
Mr Kigen said the bulk of the allegations contained in Mr Oginga’s affidavit were that the results captured in the forms 34A in the IEBC portal and those presented at Bomas of Kenya were different.
He revealed that Dr Ruto’s team and what IEBC did following the allegations was to pick the forms that were allegedly doctored, ask their agents and presiding officers to give what they obtained from the polling stations and attach them in the replies to the petition, to deny the claims.
“The evidence of (John) Githongo is hearsay. It is based on information given by a third party but who is not disclosed,” he said
On the logs presented by Mr Githongo, Mr Kigen said they relate to logs presented in the 2017 election petition.
“When it was pointed out to him, he (Githongo) retracted his statement, saying it was meant for demo. Those are the only logs that have been presented for purposes of challenging this election. With the withdrawal, the element of the petition should have been withdrawn,” he said.
He further said IEBC commissioner Justus Nyang’aya presented new logs, essentially introducing a new petition.
Dr Muthomi Thiankolu, another of Dr Ruto’s lawyers, described the petitions as a tragicomedy and quoted English playwright William Shakespeare while saying that the petition is full of sound and fury signifying nothing.
He wondered who the court will believe between Mr Githongo “a man whose name combine two saints – John and Mark – and a third name Githongo”, who allegedly produced forged logs and when called out, instead of profusely apologising, produced other logs full of ifs and buts. Or Mr Oginga who produced documents that were disowned by all presiding. Or the (four dissenting) commissioners. Or Mr Odinga as the petitioner.
“We saw them (the commissioners) announcing the results that had been verified. But when the winner becomes apparent, they turn around and say Chebukati is a bad man,” he said.
The lawyer said even if the court were to be as benevolent as Father Christmas, the case cannot stand.
Prof Kithure Kindiki complained that even though they made a complaint to the police on chaos at Bomas before the results were announced, nothing has been done to arrest or question the culprits.
“The mob that has tarnished our nation’s image and the orchestra’s conductors now stand shouting ‘Release Barabbas’. “This court must prevent Barabbas from profiting from his own crime ... The chaos at Bomas on August 15 were an attempted but failed coup d’etat,” said Prof Kindiki.
Senior Counsel Kimani Kiragu said the burden of proof squarely lies on the petitioners and that they had failed to discharge it.
“It is not enough to say there were irregularities or breaches of the law but that they must demonstrate that the irregularities and breaches were of such a magnitude to affect the outcome,” said Mr Kiragu.
