Africa
By Anthony Isibor
RAILA Odinga and Martha Wangari Karua have dragged Kenya’s Independent Electoral and Boundaries Commission, IEBC, to the Supreme court of Kenya.
Joined in the suit are Wafulu Wanyonyi Chebukati, 1st respondent, Williams Samoeri Ruto, 2nd respondent and six others.
The Petitioners Odinga and Karua are praying the apex court to declare the August 9, 2022 Presidential elections as inconclusive and the result as illegal.
The petition, which was signed by Paul Mwangi and company, advocates for the petitioners on the 21st day of August 2022, and logged in the Registry in Nairobi on 22nd day August 2022.
Others joined in the case are:
1. Boya Molu – 3rd respondent.
2. Prof. Abdi Yakub Guliye – 4th respondent.
3. Juloana Whonge Cherera – 5th respondent.
4. Justus Nyangaya – 6th respondent.
5. Francis Wanderi – 7th respondent.
6. Irene Massit – 8th respondent.
The petition stated that the 3, 4, 5, 6, 7 and 8th respondents are Commissioners of the IEBC, while the 6th Respondent is also the Vice Chairperson of the IEBC.
“The Petitioners were the Presidential candidate and Deputy Presidential candidate respectively, of the Azimio La Umoja One Kenya Coalition Party, in the general elections held on August 9,2022.
“The 9th Respondent is the Presidential candidate of the United Democratic Alliance Party. On 15th August 2022, following the General Elections held on 9 August 2022, the 1th Respondent declared the 9 Respondent elected as President.
“The results of the presidential election declared by the 2 Respondent on 15 August 2022, which are contested in this petition, are as follows (hereinafter the result” or “final outcome” or “outcome”).
1. Odinga Raila 6,942,930 – 48.85%
2. Ruto William Samoei 7,176,141 – 50.49%
3. Waihiga David Mwaure 31,987 – 0.23%
4. Wajackoyah George Luchiri 61,969 – 0.44%
However, part of the contention by the petitioners as raised by the petitioning document is that the election was rigged in favour of Ruto William.
One of such issues raised is the unexpected and suspicious stoppage of the public display of running results at the national tallying centre at Bomas of Kenya on 13th August 2022.
The petitioners argued that Odinga was already ahead of Ruto before the display was halted abruptly.
“The IEBC chairman had willfully refused to share and circulate the final result with the presidential candidates, chief agents, media, or even his fellow commission members before declaring, making the result unverifiable.
“At the stoppage of the said public display of running results, which was being closely monitored by the petitioners chief agents showed that:
“Odinga had 2,061,909, amounting to 54.30% from 20 counties, while Ruto had 1,708,801, amounting to 45% from 28 counties.
“Usurpation of the constitutional mandate of the IEBC by the 2nd respondent who declared a result that has not been tallied or verified in 27 constituencies.
“The tally in the 27 constituencies would have affected the outcome of the election.
“Only 3 out of the 7 members of the IEBC announced the result; noting that majority publicly disowned the result,” It read.
Mwangi intends to prove to the court that in the conduct of the August 9, 2022 presidential election, the IEBC Chairman had willfully set out to subvert the sovereign will of the people of Kenya and overthrow the constitutional order.
“The manner in which the 09 August 2022 presidential election was conducted, graduated beyond contumacious disregard for the Constitution, the rule of law, the national values and principles of good governance, and the lawful authority of the Court; to premeditated unlawful and criminal subversion of the integrity and constitutionality of the electoral process in order to assist and secure a fraudulent result.
“Throughout the tenure of the 2nd respondent at the IEBC, a clear pattern has emerged around the 2nd respondent that shows inability to run the commission in accordance with constitutional principle, including observance of democratic values and principles; inability to operate within the collegiate framework as required under article 138 of the Constitution and the Independent Electoral and Boundaries Commission Act No. 9 of 2011.
“Throughout the tenure of the 1st respondent, the 2nd respondent had acrimonious public disagreement with critical members of the commission, including commissioner Rosslyn Akombe, who resigned in 2017 in the middle of an election, commissioners Connie Maina, Margaret Mwachanya, and Paul Kugat, who resigned from the commission in 2018: Ezra Chiloba the CEO/Secretary; and now, the 5th, 6, 7 and 8th Commissioners,” Mwangi stated.
He is also praying the court to consider a similar judgment in Presidential Election Petition No. 1 of 2017 Raila Odinga & Another v Independent Electoral and Boundaries & 2 Others [2017] eKLR where the Court had refused to validate, and held that the presidential election conducted was so badly conducted that;
“The illegalities and irregularities committed by the 1 respondent were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements cut in place by IEBC can, in good conscience, declare that they do not matter, and that the will of the people was expressed nonetheless. We have shown in this judgment that our electoral law was amended to ensure that in substance and form, the electoral process and results are simple, yet accurate and verifiable.
“The presidential election of 8 August, 2017, did not meet that simple test and we are unable to validate it, the results notwithstanding.” [Emphasis supplied]
He said that in 2017, the Supreme Court of Kenya was shy to, and spared the 2nd Respondent, who was also the Chairperson of the IEBC then, from direct responsibility and culpability for the bungled and impugned election.
“That decision, as this Petition will show emboldened a rogue public officer, who with wilful, fraudulent and criminal intent, set out to subvert the sovereign will of the people of Kenya and the constitutional order in the conduct of the 09 August 2022 presidential election.
He added that in that Presidential Election Petition No. 1 of 2017 Raila Odinga & Another (supra), the Court held that:
“Elections are the surest way through which the people express their sovereignty. Our Constitution is founded upon the immutable principle of the sovereign will of the people. The fact that, it is the people, and they alone, in whom all power resides; be it moral, political, or legal and so they exercise such power, either directly, or through the representatives whom they democratically elect in free, fair, transparent, and credible elections.
“Therefore, whether it be about numbers, whether it be about laws, whether it be about processes, an election must at the end of the day, be a true reflection of the will of the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility, verifiability, accountability, accuracy and efficiency.”
“The electoral system shall comply with the following principles-
a. “Freedom of citizens to exercise their political rights under Article 38,
b. Not more than two thirds of the members of elective public bodies shall be of the same gender;
c. Fair representation of persons with disabilities,
d. Universal suffrage based on the aspiration for fair representation and equality of vote; and
e. Free and fair elections, which are-
i. By secret ballot;
ii. Free from violence, intimidation, improper influence or corruption;
iii. Conducted by an independent body;
iv. Transparent; and
v. Administered in an impartial, neutral, efficient, accurate and accountable manner.”
“At every election, the Independent Electoral and Boundaries Commission shall ensure that whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; the results from the polling stations are openly and accurately collated and promptly announced by the returning officer, and appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials,” It read.
Subsequently, the petitioners contend that in spite of the decision of the court in 2017, the 2nd respondent has not only continued to act and operate outside the law, his conduct has escalated to blatant and willful subversion of the Constitution and the sovereign will of the people of Kenya, and what is simply a criminal enterprise.
A.I
Tags: Francis Wanderi Irene Massit Juloana Whonge Cherera Martha Wangari Karua Odinga Raila Paul Mwangi Prof. Abdi Yakub Guliye Ruto William Samoei Wafulu Wanyonyi Chebukati Waihiga David Mwaure Wajackoyah George Luchiri
