Hassan urges court to dismiss Raila petition, “The petitioner has never conceded or accepted the will of the people as expressed in the outcome of the 1997, 2007 and now the 2013 General Election," he claims.

By LEONARD MUTINDA
lmutinda@ke.nationmdia.com
Wednesday, March 20 2013

The chairman of the electoral commission Issack Hassan has defended the integrity of the presidential elections in which he declared Uhuru Kenyatta as President-elect.

In a replying affidavit to Raila Odinga's suit, Mr Hassan says the Independent Electoral and Boundaries Commission (IEBC) did not “deviate from the normative process and procedures and the poll was neither a “sham” nor a “travesty” as Mr Odinga is alleging.

Asking the Supreme Court to dismiss the case, Mr Hassan says Mr Odinga has failed to satisfy the evidential threshold to validate the assertions contained in the suit filed on Saturday.

He observes Mr Odinga did not go through the necessary procedure of verifying the results to warrant the revocation of Article 140 of the Constitution on questions as to validity of presidential election.

“A bare complaint on the part of the plaintiff cannot be the basis of nullifying the presidential election,” says Mr Hassan, who is the second respondent to the petition.

He also defends the validity of the voter register used to conduct the March 4 elections.

After the elections, Mr Odinga claimed there were major discrepancies in the voter register. In particular, he claimed that the total number of voters was inflated in some areas.

In his response, Mr Hassan observes that the Prime Minister participated in the process and “at no time did he raise a genuine and fundamental complaint against the process"

The IEBC chairman refutes the allegation that the electoral agency has stifled Mr Odinga's attempt to access public information pertaining to the elections as provided for by Articles 35 and 47 of the Constitution.

Mr Hassan also rebuts Mr Odinga's allegation that President-elect Uhuru Kenyatta did not attain more than half of all votes cast in the election as required by the Constitution.

“The lack of credible and tangible evidence on the part of the petitioner underscores the terminal structural weakness of the petition,” he points in the document.

The electoral boss terms the petition as an “omnibus petition” that superficially challenges the election of Mr Kenyatta as the fourth president.

He argues that even though at face value it is based on Article 140, it is in reality grounded on the Bill of Rights under the Constitution.

The fusion of the two, Mr Hassan argues takes away the jurisdiction of the court to determine the many issues raised in the petition.

“The petitioner is advancing a narrow private right cleverly disguised as public interest in Kenyans being allowed to elect a President of their choice,” he says.

“The overriding public interest balancing test must prevail in the determination of the competing rights of the Prime Minister,” he appeals to the court.

Further, Mr Hassan terms the petition as superfluous noting that the procurement issues raised about the Biometric Voter Registration kits are “not issues for determination by the Supreme Court”.

He notes: “The government through the office of the Prime Minister and the Treasury in any event did the procurement of the equipment now sought to be impugned.”

“The petitioner cannot seek to benefit from what would, if his argument is to be accepted, be his own wrongdoing,” he avers.

“The petitioner cannot seek to benefit from what would, if his argument is to be accepted, be his own wrongdoing,” he avers.

Mr Hassan accuses Mr Odinga of lodging the suit at the top court as part of a seemingly demonstrated history of not conceding defeat.

“The petitioner has never conceded or accepted the will of the people as expressed in the outcome of the 1997, 2007 and now the 2013 General Election," he claims.