Possible Supreme Court rulings on presidential petition

Millions of Kenyans turned up to vote on March 4.  [PHOTO: FILE/STANDARD]

By Juma Kwayera

KENYA: The Supreme Court battles challenging the declaration of Jubilee leader Uhuru Kenyatta as president-elect hold the potential for several legal surprises.

No less than three petitions have been filed over the outcome of the March 4 General Election, with a CORD campaign official and a civil society group seeking to have the election nullified.

The six judges in the court are expected to consider these along with written responses from electoral officials and the Jubilee team.

The merits of the cases cannot be argued in public, but observers are already casting an eye as to the possible outcomes and their implications for the parties in the contest.

Legal, election and political experts say some of the possible permutations have serious implications for Jubilee, CORD and the Independent Electoral and Boundaries Commission (IEBC). They could prove a shock for voters as well, after the country conducted peaceful elections since the 2007/2008 post-poll violence.

Experts we spoke to listed at least four possible scenarios, with some minor variations. These depend on how the court rules on key issues such as the integrity of the voters’ register, the accuracy of the counting and tallying, the impact of other irregularities and how various types of rejected votes affect the threshold for victory.

However, judges have leeway to give any other orders they see fit as the evidence before them may lead to conclusions observers have not anticipated.

Scenario I

The court upholds the IEBC verdict that proclaimed Uhuru winner of the March 4 presidential election. This is likely if the judges find that the results are valid. It is also possible if they find the results incorrect due to tallying errors or to the inclusion of some or all of the rejected votes, but the changes do not affect the threshold for a first round win.

Scenario II

The court partially grants CORD its prayers to overturn IEBC’s decision by declaring that the conditions for a victory were not met, but those for a run-off were. This is possible if the judges find tallying errors that lower Uhuru’s total to below the 50 per-cent plus one vote threshold, after finding the rest of the election was credible and having resolved the question of how to treat some or all of the rejected votes.

Scenario III

The court orders a recount of votes in selected areas. This is possible if the court is satisfied the voters’ register and the voting process were credible, but finds evidence of major flaws in the counting and tallying. The outcome of a recount, taken alongside a decision on how to treat some or all rejected votes, would likely determine whether victory would be declared for Uhuru or a run-off ordered within 30 days.

Scenario IV

The court rules that the entire electoral process was flawed, making it difficult to determine who won the presidential race, and orders a re-run of the race in 60 days, as required by law.

This is possible if evidence is presented that shows the voter register was flawed, the counting and tallying massively manipulated, the IEBC and its officials complicit in voter fraud or both electronic and manual processes flawed.

Until all evidence before the Supreme Court is scrutinised for its veracity and impact on the outcome, there is no telling which scenario is most likely. Whatever the outcome, says, the International Commission of Jurists (ICJ) in Kenya, executive director George Kegoro the ruling will be historic.

“The country is divided down the middle and the judges are acutely aware of the strained inter-ethnic relations,” Mr Kegoro says.

“Trust in the judicial and electoral processes will depend on the quality of the ruling,” Kegoro says.

Chief Justice Willy Mutunga, the president of the Supreme Court, will hear the petitions alongside Justices Smokin Wanjala, Philip Kiptoo Tunoi, Mohamed Khadhar Ibrahim, Justice Jacton B Ojwang’ and Lady Justice Njoki Ndung’u.

Kegoro predicts the final verdict will be based on any of the three factors: misconduct or mistakes by IEBC, misconduct by political players or a mix of both. If the errors or irregularities are too minor to matter, the petition may entirely be dismissed. If the errors are more severe, a fresh presidential poll may be ordered or a full (or select) recount to determine the winner. The last two options present a fresh challenge of public faith in the re-run or runoff.

“If the electoral commission is to blame (for major misdeeds) and the blame is extensive, then it will be difficult for it to run a repeat election,” says the ICJ chief executive.

In worst-case scenario, a battle could erupt over inviting a third party to conduct the elections or attempting to reconstitute IEBC.

Sufficient days

Former vice-chairman of the defunct Electoral Commission of Kenya Gabriel Mukele, a lawyer, argues that the 14 days provided in the Constitution for the Supreme Court to hear presidential petition may not be sufficient. He also sees some outcomes as possibly complicated for IEBC.

“If IEBC is (found) criminally responsible (for voter fraud), it puts the country at the risk of unrest,” he says. He rules out the possibility of the United Nations stepping in, as has been proposed by a section of CORD elected leaders, and says disbanding the commission would be “useless”. “To restore confidence, we can hire people with experience on a temporary basis.”

International Foundation for Electoral Systems’ (IFES) chief co-ordinator for Kenya and Uganda Michael Yard says a presidential re-run or run-off would be easier for IEBC or any other electoral body to execute, as there will only be two choices to make. Both present different legal and logistical encumbrances, with a run-off due in 30 days and a rerun in 60 days.

A lawyer who spoke on condition of anonymity says the National Assembly and Senate, which begin sittings next week – their calendar is not tied to the Executive’s – could amend the law and Constitution to buy more time for a repeat exercise.

That, he says, would necessitate an extension of President Kibaki’s tenure or other caretaker arrangements like a government of national unity.

Mr Mukele, however, points out that the legislation process faces challenges, as there are sections of the Constitution that require a referendum to change.

The Supreme Court, he says, would likely offer a way out if it settled on a run-off or re-run, having considered the evidence that led to that conclusion.