Stage set for Supreme Court battle as Uhuru and IEBC boss file responses to Raila petition

From left: Supreme Court Judges Njoki Ndungu, Jackton Ojwang, Philip Tunoi, CJ Willy Mutunga, Mohamed Ibrahim and Smokin Wanjala during election petition proceedings at Supreme Court on March 20, 2013.   NATION

By PAUL OGEMBA pogemba@ke.nationmedia.com
Posted  Thursday, March 21  2013 at  00:30

IN SUMMARY

ODINGA’S PETITION

• Seeks to overturn the results announced by Issack Hassan on March 9, 2013 and the whole electoral process.
• In many areas the number of votes cast exceeded registered voters.
• Hassan’s tally of registered voters mysteriously grew overnight by a large proportion on election eve.
• IEBC failed to correctly count, tally and verify the presidential votes.

KENYATTA’S REPLY

• Petition is replete with falsehoods and is a robust effort to exaggerate facts to secure the petitioner an unfair advantage.
• The Constitution does not require the IEBC to use an electronic election transmitting system.
• The petition is an expression of bitterness from the petitioner’s loss of the poll.
• The ultimate objective is to effect a constitutional coup through the Supreme Court.

A titanic legal battle is shaping up at the Supreme Court over the disputed presidential election results.

On Wednesday, President-elect Uhuru Kenyatta accused Cord presidential candidate Raila Odinga of trying to effect a constitutional coup through the Supreme Court. Mr Kenyatta stated this in his response filed in court to the petition challenging his election as president.

Deputy President-elect William Ruto and the chairman of the electoral commission, Mr Issack Hassan, also filed their responses to Mr Odinga’s petition which was lodged on Saturday. The respondents are seeking to have Prime Minister Odinga’s petition dismissed on the grounds that it is replete with falsehoods and exaggerated facts.

This came as the six Supreme Court judges met for the first time for a mention of three petitions challenging the presidential results.

Chief Justice Willy Mutunga issued a strict directive on how the cases will be handled. He warned all parties in the petitions to desist from arguing the cases outside court.

“The Supreme Court is now seized with all petitions and the petitioners, respondents, their agents, supporters and advisers are directed to desist from prosecuting the merits of their cases in any forum other than this court. It is the responsibility of their agents to advise them accordingly,” said the CJ.

Mr Kenyatta, Mr Hassan and Mr Ruto maintained that the elections were free, fair, and transparent and that the Jubilee Coalition fairly won with more than 50 per cent of the votes cast.

Mr Hassan said the election was neither a “sham” nor a “travesty” as Cord alleged.

“The coalition 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,” he said.

Mr Kenyatta said that Mr Odinga’s attempt to have the entire electoral process annulled was an afterthought informed by the shock of losing rather than on any impropriety or irregularities.

“The will of Kenyans expressed in a free, fair and credible process cannot be overturned on the basis of a hypothesis,” he said in his reply. “His petition is founded on a hypothesis incapable of proof and an expression of bitterness arising from his loss and raises no legal issues capable of a judicial inquiry.”

Mr Ruto said that his and Mr Kenyatta’s election were above board as had been proved by local and international observers who declared the elections valid, free, fair and credible and world leaders who endorsed the outcome.

They also faulted the legal provisions on which Mr Odinga has based his petition, saying there was no violation of any Article of the Elections Act as alleged.

Mr Odinga alleged in his petition that the elections were flawed because the IEBC violated provisions of Article 2, 10, 38, 73, 81, 86, 136 and provisions of Sections 59, 60, 61, 62, 74, 79 and 82 of the Elections Regulations.

Mr Hassan, the IEBC chairman, responded that although the petition was based on Article 140, it was grounded on the Bill of Rights and the fusion of the two took away the jurisdiction of the Supreme Court to determine the issues raised in the petition.
According to him, Mr Odinga is advancing a narrow private right cleverly disguised as public interest.

In his papers, Mr Kenyatta accused Mr Odinga of incorrectly trying to attribute the enactment of the Constitution to the government, civil society and the private sector whereas the Constitution was enacted by the people who he said also exercised their rights by electing him.

Mr Odinga in his petition faulted the IEBC electronic voter system, arguing that the process was a flop right from the procurement of BVR kits, electronic voter registration and transmission of results to the declaration of the winner.

However, in their responses, Mr Kenyatta, Mr Hassan and Mr Ruto said the petitioner had no legal basis or any opposition to the use of electronic equipment

“The Constitution does not impose a duty on the IEBC to transmit results electronically and it is a misconception of the law for Mr Odinga to contend that either registration, identification of voters and transmission of results was to be done through an electronic system,” said Mr Kenyatta.

The notion that only electronic voting system was accurate, accountable and verifiable was not correct since the system had failed in other countries like Ghana and the US, he said.

Mr Hassan said the procurement issues raised about the Biometric Voter Registration kits were not issues for determination by the Supreme Court and accused Mr Odinga of shifting blame when he and President Kibaki sat in a Cabinet committee that approved the purchase of the BVR kits.

“The government through the office of the PM and the Treasury did the procurement of the equipment now sought to be impugned and he cannot seek to benefit from what would, if his argument is to be accepted, be his own wrongdoing,” said Mr Hassan.

Mr Kenyatta and Mr Ruto accused Mr Odinga of being insincere in his claims that the voter register was tampered with leading to inflation by over 35,000 voters.

Mr Kenyatta said the principal register was prepared in full compliance with the provisions of the Elections Act and that all stakeholders, including Mr Odinga’s party, ODM, were regularly updated and adopted the register for their party nominations.

And Mr Ruto said: “IEBC adopted robust, dynamic and innovative designs to ensure the electoral process was open and transparent. It set up consultative forums in which all parties were invited to make proposal and all agreed with the IEBC system.”

According to him, Mr Odinga had the opportunity as the PM to stop or raise the alarm about all the grounds of election malpractices he seeks to use to overturn their victory.

Both Mr Hassan and Mr Ruto criticised the character of Mr Odinga, arguing that he had a history of not conceding elections when he lost.

“The petitioner cannot seek to benefit from what would, if his argument is to be accepted, his own wrongdoing. He has never conceded or accepted the will of the people as expressed in the outcome of the 1997, 2007 and now the 2013 general elections,” said Mr Hassan.

Mr Kenyatta and Mr Ruto denied claims by Mr Odinga that his agents were denied access to the National Tallying Centre at Bomas, saying it was only after Cord agents started making noise and disturbing the proceedings that they were restrained.

“Agents for all parties were not ejected from the tallying centre but provided with a suitable alternative facilities after his supporters started shouting and misconducting themselves in a room which they and other agents had been allocated,” said Mr Kenyatta.

He added that there was no way results from other constituencies could be more than 100 per cent.

Mr Ruto dismissed Mr Odinga’s claims that the results were announced on unsigned Form 36s, saying all their agents confirmed that the forms were signed.

Mr Kenyatta, Mr Hassan and Mr Ruto maintained that what Mr Odinga was seeking was to invalidate the whole electoral process which would nullify even the elections for other seats and that the Supreme Court had no jurisdiction to grant the prayers he was asking. (READ: Uhuru and Raila trade words over poll petition)

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William Ruto’s response

1. The first respondent (IEBC) adopted robust, dynamic and innovative designs to ensure that the whole electoral process was open, transparent, consultative, interactive and responsive.

2. The manual register, containing manual registration of voters, was the principal and parent register to be referred to.

3. Part of Jubilee Coalition’s votes were lost in an approach invoked by the first respondent to deal with spoilt and rejected votes.

4. The petitioner’s allegation that the third and fourth respondents (Mr Kenyatta and Mr Ruto) did not garner over 50 per cent is unfounded and untrue.

5. The petitioner’s allegation that he had up to 56 per cent votes himself is a fantasy.

6. The petitioner’s claims are unfounded as his status as a Prime Minister gave him all conceivable chances, opportunities and forums, to stop or otherwise at the very least raise alarm about all the grounds of election process he now seeks to rely on to invalidate the elections.

7. The allegation that there was a plot to ensure computer and electronic accessories functions fail are wholly untrue and in any event unsupported.

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Issack Hassan’s response

1. The 2013 election was conducted as provided by the Constitution and the relevant statutes that govern elections. No breach of the Constitution or any statute occurred.

2. The constitutional threshold for invalidating a presidential election under Article 140 of the Constitution has not been satisfied.

3. A bare complaint on the part of the petitioner cannot be the basis of nullifying the presidential election.

4. Three tests (the public interest test, the proportionality test and harm test) singularly and collectively militate against the nullification of the result of the presidential election as sought by the petitioner.

5. Petitioner is advancing a private right cleverly disguised as public rights. This must be counterbalanced against the public interest in Kenyans being allowed to elect a president of their choice.

6. The contention by the petitioner that the third respondent, Hon Uhuru Kenyatta, did not attain the constitutional threshold of more than half of all the votes cast in the election ... has no evidential basis whatsover.

7. In 1997, 2007 and now in 2013, the petitioner has never conceded or accepted the will of the people as expressed in the outcome of those elections.