Kenya's Chief Justice Willy Mutunga (3rdL) heading a six-judge bench of
the country's Supreme court, presides on March 25, 2013 over the hearing
of a petition challenging the outcome of the General Election of March
4. The Supreme Court will on Saturday deliver a historic judgment that
will either clear the way for the swearing in of Mr Uhuru Kenyatta as
Kenya’s fourth President, a run-off vote involving Mr Kenyatta and Prime
Minister Raila Odinga or a fresh election. Photo/FILE NATION MEDIA GROUP
In Summary
There are three likely scenarios
- Judges may uphold election result, paving the way for Kenyatta’s swearing-in on April 9
- Agree with Cord and nullify Jubilee’s victory, triggering a fresh contest
- Accept Odinga’s allegations of irregularities but find them not significant enough to quash result
The Supreme Court will on Saturday deliver a
historic judgment that will either clear the way for the swearing in of
Mr Uhuru Kenyatta as Kenya’s fourth President, a run-off vote involving
Mr Kenyatta and Prime Minister Raila Odinga or a fresh election.
The Supreme Court’s much-anticipated decision will
end the stalemate over the outcome of the presidential election on
March 4, 2013 that has kept the country anxious for the past two weeks.
Mr Odinga and the civil society group African
Centre for Governance (Africog) filed the petitions challenging the
Independent Electoral and Boundaries Commission’s declaration of Mr
Kenyatta as the presidential election on March 9.
The six judges at the centre of national and
international attention are Chief Justice Willy Mutunga, Justice Smokin
Wanjala, Justice Philip K. Tunoi, Lady Justice Njoki Ndung’u, Justice
Mohammed Ibrahim and Justice J. B. Ojwang’.
On Friday, the Chief Justice announced that the
judges would work overtime to complete the ruling on Saturday. He held a
brief session with lawyers for the petitioners and respondents at the
Supreme Court in the morning, during which the lawyers made brief
comments about a partial vote re-tallying the court had ordered as part
of its hearing of the petitions. (READ: Vote recount shows anomalies- lawyers)
According to experts interviewed by Saturday Nation, there are three possible outcomes of the petition.
Lawyer Nzamba Kitonga, who chaired the panel of
experts who wrote the Constitution, said on Friday the ruling was
expected to either bring the March 4 General Election process to an end
or open a new battlefront by ordering a re-run or a fresh election.
“The ruling, and the case as a whole, is
historic,” Mr Kitonga said. “It is exactly what we anticipated as
framers of the Constitution promulgated in 2010 — a process which
everybody watches as it executes itself.”
If the court finds that the various claims of
election irregularities are not proven, it is will order that the
results declared by the IEBC stand.
This will pave the way for President-elect
Kenyatta to be sworn in as Kenya’s fourth President. The decision of the
Supreme Court is final.
In the second scenario, the Supreme Court could nullify the results and order a fresh election.
Constitutional lawyers are, however, not agreed as to what a “fresh election” means.
Some argue that it will mean a run-off between the two leading candidates — Mr Kenyatta and Mr Odinga.
Lawyer George Kegoro said the wording of the
Constitution on the matter is rather vague. “In the event that the
election is nullified, the constitutional phrasing is wide enough to
give the Supreme Court sufficient room to decide what a fresh election
means — a run-off between the leading candidates or a new election in
which other candidates can also participate,” said Mr Kegoro, also the
executive director of ICJ-Kenya.
While completing his submission on Thursday
evening, Mr Ochieng’ Oduol, one of Mr Odinga’s lawyers, said the court
should determine whether Mr Kenyatta garnered the 50 per cent-plus-one
of the votes cast as declared by IEBC.
“The jurisdiction to examine and declare is
catered (for) in this court,” Mr Oduol said, adding the court should
tell whether Mr Kenyatta was validly declared President-elect.
But Attorney-General Githu Muigai, appearing as a
friend of the court, argued that nullifying Mr Kenyatta’s election could
result in fresh polls for all the six elective posts.
Mr Muigai said the court should consider the
consequences of its decision as the law gave two different meanings of
fresh elections. The same argument was advanced by Mr Katwa Kigen, for
Deputy President-elect William Ruto.,
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