| By Wahome Thuku |
| STANDARD] |
Though his detailed election petition seeks to invalidate the presidential election result announced last Saturday, a favourable ruling could have a direct effect on the election of all other candidate from the counties to the National Assembly and the Senate.
That is the reality that six Supreme Court judges will be faced with as they start to examine the evidence presented by the presidential candidate for the Coalition for Reforms and Democracy (CORD) ahead of the actual hearing in a week’s time.
The most devastating could be a declaration by the court that the entire voter registration process and procurement of the electoral equipment was flawed. This could mean that any election conducted using the registers was invalid, null and void.
The thrust of Raila’s petition is that the Independent Electoral and Boundaries Commission (IEBC) failed to carry out a proper and valid voter registration in accordance with the constitution.
The petitioner claims that the commission unlawfully registered an extra 85,000 voters after the December 18, 2012 deadline hence tainting the entire record and the election process.
In Raila’s name
Raila lodged the petition in his name at midday on Saturday, a surprise turn of events after indications earlier in the week that his chief campaigner Eliud Owallo would file suit on his behalf.
Owallo’s name had featured in all the preliminary communication between the CORD Coalition and the IEBC and also court papers filed earlier to press for the release of electoral material. He had also told the High Court that he would file the petition challenging the victory of president elect Uhuru Kenyatta.
Raila has named the IEBC, its chairman Issack Hassan, president-elect Uhuru Kenyatta and deputy William Ruto as the four respondents.
Hassan is named in person because under the law he is the returning officer in presidential elections.
The bundles of petition papers were delivered at the Supreme Court registry amidst colour and drama, under the escort of a host of politicians, lawyers and CORD supporters. The Chief Registrar of Judiciary Gladys Shollei received the documents.
The documents were prepared and filed by lawyer George Oraro who will be leading the CORD legal team in the onslaught against lawyers for the IEBC, Uhuru and Ruto.
Court rules
Within two hours of filing, the lawyers were required to electronically serve the other parties with the petition papers according to the court rules. Contrary to earlier indications, Raila is not asking for a run-off between him and Uhuru but an invalidation of the entire elections and the holding of a fresh poll.
In the documents submitted, Raila does not claim to have won the elections contrary to remarks he has repeated in news conferences and other fora.
He is seeking a declaration that Uhuru and by extension Ruto, were not validly elected. Uhuru did not receive more than half of the total votes cast as required by the constitution and was hence not validly declared winner.
He wants the certificate issued to Uhuru by the IEBC cancelled.
The constitution provides that if the Supreme Court invalidates the election, a fresh election must be held within 60 days.
The constitution does not have a provision for the Supreme Court to order a run-off, which is only anticipated if no candidate garners either 25 percent of the votes cast in at least half of the counties or gets more than 50 per cent of the total votes cast.
A fresh election if ordered would include all other presidential candidates and any other candidates that may be nominated by political parties or even join the race independently. Such an election would be different from a run-off, which would involve only the top two candidates.
Raila argues that under the Elections Act, voter registration cannot be conducted 30 days to the elections. He claims according to figures gazetted after the registration of voters on December 18, 2012 there were 14,267,572 yet during the declaration of results the IEBC claimed there were 14,352,533 voters.
“The IEBC increased registration by 85,000 voters in clear violation of the constitution, the Election Act and the IEBC Act,” the PM says.
“All and any votes cast under such circumstances are thus unconstitutional and invalid. The consequence is that the purity of the election was polluted and the result of the poll was materially affected,” his petition says.
Raila says the commission failed to carry out transparent, verifiable, accurate and accountable election as outlined in Article 81, 83 and 88 of the constitution.
He argues that Hassan and the IEBC had a duty to act and supervise the election in accordance with the constitution and the electoral law.
Invalid action
“If they acted or failed to act in a manner that contravened the constitution, such act or omission was and remains invalid, null and void,” he says.
The PM wants a declaration that the procurement of all the equipment for the election, registration of voters, conduct of elections as well as transmission and tallying of votes was flawed and was in breach of the constitution.
If that order is granted, the country would have a fresh voter registration process and completely new procurement of the equipment including the biometric registration kits. This is the equipment that was used in all the voters for the March 4 election.
Though the decision of the Supreme Court would apply directly to the presidential election losers in the concluded polls, it could use the judgment as the basis for nullifying all other elections.
“If the court declares the registration of voters was flawed, that will have the effect on even other candidates from the county wards to governors and Parliament,” a senior lawyer said.
Raila argues that the commission and its chairman acted unconstitutionally and unlawfully in tallying the presidential votes using erroneous form 36 without counterchecking with form 34 in breach of the constitution.
He says his constitutional rights under Articles 35, 38 and 47 were violated when the commission failed to properly tally and verify the count of the presidential votes.
Electoral offences
He wants a declaration that IEBC and Hassan are guilty of electoral offences under the Election Act. Such a declaration would not only see the entire commission dismissed but could be the basis for criminal prosecution against the commissioners.
The petition will go before a pre-trial conference where the parties and the court will agree on the issues to be determined. However in his petition, Raila has already framed seven questions he want determined.
One is whether the entire electoral process from the procurement of the BVR kits to the declaration of Uhuru as president elect was invalid and so fundamentally and irreparably flawed and unconstitutional and unlawful that no valid or lawful declaration could come out of it.
He is also asking the judges to determine whether, besides invalidating the election, the Supreme Court can issue any other others.
Further he is asking the court to determine whether the IEBC, Hassan, Uhuru or Ruto committed electoral offences.
By Tuesday the petitioner should have served the commission, the president elect and the deputy with the papers either directly or through a newspaper of national circulation. They should file a response within three days after being served.
The pre-trial conference should be held on Monday next week, which is nine days after the filing of the petition. It’s at this conference that the court shall frame contested and uncontested issues, consolidate the petition with any others filed in court and give directions on various preliminary issues including the place of hearing and even how evidence shall be adduced.
The court must commence the hearing by the following Wednesday and determine the case by close of the day on Friday meaning it will have only two days to hear courtroom submissions. “By the time the judges are sitting they will have gone through all the evidence,” said the Chief Registrar Shollei.
The judges may only give a brief judgment summarising their finding and determination and then deliver the detailed decision at a later date.
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