Supreme Court holds presidential petition pre-trial hearing

Supreme Court Judges Njoki Ndung’u, Jackton Ojwang, Philip Tunoi, CJ Willy Mutunga, Mohamed Ibrahim and Smokin Wanjala during election petition proceedings. Photo/BILLY MUTAI  

By EMMANURL TOILI etoili@ke.nationmedia.com
Posted  Monday, March 25  2013 at  12:30

The Supreme Court will on Monday at 3pm deliver its verdict on the inclusion of the Attorney General and the Law Society of Kenya (LSK) in presidential petitions as amicus curiae or friends of the court and also to hear the Jubilee lawyers on the new evidence presented by the Cord Coalition.

In his opening remarks, Chief Justice Willy Mutunga said the judges will be objective in its ruling on the petition.

"We as judges are servants of the law. We shall be objective," he said.

"Supreme court to remain objective. Public should trust us to do our job. Justice should manifest to be done," he added.

Dr Mutunga also urged Kenyans to accept the final decision that will be arrived at by the Supreme Court and move on.

"Whatever decision emerges from this petition, we must march forward," he said.

While addressing the court, Attorney General Githu Muigai sought to be enjoined in the petition as amicus curiae or a friend of the court.

"We can only be enjoined in the case on the discretion of the Court," said AG Muigai.

However, Mr Odinga has filed an objection to the Attorney General joining the presidential petition.

AG Muigai also argues that his appearance in petition is not to support any party but to lay down law as it is with authorities from across the globe.

"The AG's role is to elucidate on legal issues, not to support any side," he said.

However, IEBC boss Issack Hassan's lawyer Ahmednassir Abdullahi said his client had no objection with the appearance of AG in the petition.

Lawyers Katwa Kigen and Fred Ngatia also have no objection to AG being enjoined in the petition.

Notably, lawyer Kethi Kilonzo for Africog argued that issues before court do not require an interpretation of the law to warrant inclusion of the AG.

However, Cord's lawyer George Oraro argued that the AG has applied to be enjoined without request from the court or any party.

"The AG has misinterpreted circumstances under which he can apply to be enjoined in cases before court," he said.

"An election petition is not a civil proceeding. The government is not defined in the Constitution but state is defined," he added.

Mr Oraro argued that in relation to this petition the AG can be enjoined by the Constitution to assist the IEBC.

However, AG Muigai disagreed with Mr Oraro and argued that the petition was a civil matter.

AG Muigai argued that as amicus curiae, his office will not impose views on the court hearing Cord's petition against President-elect Uhuru Kenyatta.

"I have not advised the president-elect, contrary to claims by lawyer George Oraro," he said.

Lawyer A.B Shah also lodged an application for the Law Society of Kenya (LSK) to be enjoined in the petitions before the Supreme Court as amicus curiae.

However, LSK faced opposition on its application to be enjoined as amicus curiae in presidential petitions by parties before Supreme Court.

Mr Oraro opposed the inclusion of the LSK in petition arguing that the society is partisan.

Lawyer Fred Ngatia representing Jubilee Coalition also opposed inclusion of LSK as amicus curiae the society was an observer in the General Election.

Mr Ngatia also argued that LSK is on record 'supporting a petitioner.'

During the submission, political activist Nazlin Umar disrupted court proceedings for several minutes at the Supreme Court as she attempted to address judges over an application she had filed.

Ms Umar said as the "Wanjiku's" lawyer, she was disappointed that her application has been ignored.

However, Dr Mutunga said that the Supreme Court will not hear or deal with any petitions, requests or submissions that were done past the allowed time.

Petition consolidation

During the submissions, Jubilee's lawyer Mr Ngatia argued that a couple of preliminary issues had to be addressed before the hearing of the petition.

Also, AG Muigai advised the court to give the parties involved time to come up with a conclusive mechanism of what may be required for progress.

Mr Ngatia argued that the petition by Cord only raised one issue.

"The court should consolidate all the petitions and marry all the related issues raised by petitioners and respondents," he said.

Lawyer Njoroge Regeru argued that the petitions consolidation were sensible and will lead to arguable case and speedy resolution.

Africog's Counsel Keth Kilonzo also argued that matters of fact and matters of law should be consolidated to allow a reasonable suit.

However, Mr Oraro said the consolidation of the cases including respondent number three may not hold.

Mr Ngatia noted that petitions 4 and 5 had similar issues, contest and engagement and thus could be consolidated.

Lawyer Ahmednassir Abdullahi also argued that petition number 5 bore more weight than 3 and 4 and should be given preference.

Petition mutations

Mr Ahmednasir also asked the court to give directions on the type of petitions to be followed.

Mr Ahmednasir argued that his client, Mr Issack Hassan was concerned with continued mutation of the presidential petitions, hence, affecting its expediency.

Mr Ngatia also requested the court to give guidance on the petitions to avoid the mutations.

"There's new evidence being introduced and this means the defence teams must be given time to respondents to all affidavits," he said.

"There are 122 new electoral areas that are being introduced by the petitioner which bears grave consequences on time," he added.

However, Mr Oraro argued that it is within the provisions of law to file new evidence as the hearing continues.

On his side, lawyer Harun Ndubi argued that the introduction of affidavits is important at any point.

The judges, led by Dr Mutunga, could either dismiss the petition, order a re-count of the presidential votes, settle on a re-run, or rule that the whole process begins afresh with the registration of voters.

The actual hearings of the petition are expected to start on Thursday and could continue un-interrupted until concluded.

Apart from the petition filed by Cord's presidential candidate Mr Raila Odinga challenging the declaration of Jubilee's candidate Mr Uhuru Kenyatta as winner of the presidential election, there is another filed by a civil society group, the African Centre for Open Governance (Africog).

Also before the court is a petition filed by some members of Mr Kenyatta’s campaign team, social media activists Dennis Itumbi and Moses Kuria and a third person, challenging the inclusion of spoilt ballots in the calculation of votes attained by each candidate.

The objections raised by Mr Kenyatta and Deputy President-elect Mr William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan, will also be narrowed down to what will be argued verbally in court
.