African Reserves

Anxiety in East Africa as Kenya’s Supreme Court settles election dispute

By Otieno Otieno


The Supreme Court is expected to rule on nine issues raised by the petitioners regarding the integrity of the election and the legality of declaring Vice President William Ruto president-elect.

It is a difficult time in Kenya as the country awaits the Supreme Court’s verdict on the presidential election petition filed by former Prime Minister Raila Odinga and others.

The Supreme Court is expected to rule Sept. 5 on nine issues raised by the petitioners regarding the integrity of the election and the legality of declaring Vice President William Ruto president-elect.

The debate focused on possible scenarios around the petition, with legal experts looking at three likely scenarios.

The court can uphold the verdict of the Independent Electoral and Boundaries Commission (IEBC) declaring William Ruto duly elected president, or it can nullify the election and order a new election or re-election. Yet there is a minority that thinks it could give the petitioner victory.

The seven justices retired on Friday to render their politically consequential decision after concluding a hearing of a consolidated motion.


Lily: Long weekend ahead for Kenya Supreme Court justices

Mr Odinga, the opposition leader who narrowly lost his fifth presidential bid, alleges the election was stolen and has asked the Supreme Court to overturn the results announced by the chairman of the electoral commission on 15 August and to order a new ballot. or declare him the winner.

His legal team argued in court that there had been massive vote rigging, citing some discrepancies in the entries of the vote tally at polling stations and those transmitted electronically to the national counting center in Nairobi.

Mr Odinga also claimed that some foreigners, including Venezuelan nationals arrested by Kenyan detectives in possession of election materials a week before the elections, were allowed access to the electoral commission system to manipulate the results in favor of Dr Ruto .

Lily: The role of foreigners in Kenya’s polls plays out

Lawyers representing the president-elect and the election commission have defended the IEBC and asked the court to uphold the results, calling some of the petition’s allegations “fiction”.

If a majority of judges reject the opposition leader’s grievances and uphold the results proclaimed by the electorate, Kenyans will have a new president sworn in on September 13 to succeed Uhuru Kenyatta.

If they invalidate Dr. Ruto’s victory and order a new election, it is only in November that a new president will take office.

The tribunal created by the country’s reformist 2010 Constitution has also arbitrated disputes over the last two presidential elections in 2013 and 2017 and overturned President Kenyatta’s re-election victory in 2017.

Should the court accept Mr Odinga’s prayers that Independent Elections and Boundaries Commission (IEBC) Chairman Wafula Chebukati be charged and barred from holding a new election, the transition could be further extended.

Public confidence in the electorate has also taken a hit following the recent dramatic public display of internal divisions, which saw a faction of commissioners disavowing the results declared by Mr Chebukati in court.

Lily: Forensic report: IEBC used the second set of results forms

Lawyers for Dr Ruto, in their pleadings before the Supreme Court justices, raised the possibility of a protracted transition plunging the country into a constitutional crisis, given that President Kenyatta is currently exercising his temporary mandate with limited powers over certain key administrative decisions.

But the IEBC is not the only key public institution to emerge from the Supreme Court electoral dispute with its bruised image. Members of the National Security Advisory Council (NSAC), the nation’s top security body chaired by the president, had to send a lawyer to the Supreme Court hearing to refute allegations that they tried to pressure on Mr. Chebukati to declare Mr. Odinga the winner.

A number of NSAC members also sit on the transition committee chaired by the head of the civil service mandated to facilitate the handover of power to a new president. If the results are upheld, they will likely find themselves in an awkward position in the line of duty after their names were dragged into the Supreme Court case by the legal teams of the president-elect and IEBC president. .

According to the rules and traditions of power transitions in Kenya, the committee is, among other things, supposed to facilitate communication between the incumbent president and the president-elect and the latter should also receive intelligence information.

Four dissenting IEBC commissioners are also asking the Supreme Court to overturn the presidential election result on the grounds that they failed to meet the requirements of the law. IEBC Vice President Juliana Cherera and Commissioners Justus Nyang’aya, Irene Masit and Francis Wanderi told the court through their lawyers that they were prevented by President Wafula Chebukati from verifying and accounting the results. Senior Counsel Paul Muite, lead counsel for the four commissioners, accused Mr Chebukati of running the commission as a one-man show.

Lily: Petition for a poll in Kenya: the court decides on the identity of the lawyer of the IEBC

However, DP Ruto, lawyers for IEBC and Chebukati argued that the agency did not mean the entire team of commissioners, only the chairman and technical staff.

Former attorney general Professor Githu Muigai, who heads the election agency’s legal team, said the case was about facts and figures, but the petitioners presented several other irrelevant allegations.

“The petitioners have tried to argue on every other point except the numbers. The petitions contain serious allegations of a criminal nature. defamation of this president goes beyond anything we’ve ever had in this court. It was personal, vindictive. It was unwarranted,” Prof Muigai said.

“When the president announces results, for example, he is the commission. He argues that not all IEBC processes require a plenary and a vote. The moralizing, pompous and self-righteous assertions of the petitioners are an afterthought and should be taken as such.

Kamau Karori, a senior lawyer on Dr Ruto’s team, added that involving all commissioners in counting and vetting would mean all seven would be required to go through the same process for other elective positions.

After hearing the closing arguments, the Supreme Court led by Chief Justice and Chief Justice Martha Koome narrowed the multiple claims and counterclaims in eight motions challenging the results of the August 9 presidential election to nine issues, the outcome of which will decide whether Ruto’s victory will be confirmed.

The court will rule on what orders to grant, which may include annulling the election and ordering the election agency to hold new elections within 60 days, maintaining Dr Ruto’s victory or cancellation of the certificate issued to him and his return to Mr. Odinga as he did. demand.

Busia Senator-elect Okiya Omtata argued that none of the candidates had met the threshold and that the statement made by Mr Chebukati on August 15 was void.

“Therefore, the president was wrong to round each party’s percentages to two decimal places,” Mr. Omtatah said, adding that by providing that the candidate who obtains more than half of all the votes cast wins the presidential election, the Constitution leaves no room for error.

Based on Mr. Odinga’s prayers, the Supreme Court ordered that votes cast at 15 polling stations located in different parts of the county be reviewed and recounted.

Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko ordered on Monday that presidential ballot boxes at some polling stations be opened for inspection, review and recount . The judges also ordered that error forms signed by IEBC President Chebukati be provided to petitioners Khelef Khalifa, George Osewe, Ruth Mumbi, Grace Kamau, Raila Odinga and Martha Karua.

Tension on the social fabric

Professor Fredrick Ogola, a governance expert and senior lecturer at Strathmore Business School, said if the court declares new elections, President Uhuru Kenyatta will step down from full-time presidency as the country gears up for elections.

In the meantime, there are fears that whichever direction the verdict takes, there will be significant strain on the Kenyan social fabric and erode some of the country’s integrity as the epitome of democracy in the region.

A re-election or re-election would come with its own problem: who oversees the election in 60 days if the IEBC is indicted – and in its current state of internal dysfunction? Does the Court issue a structural ban when monitoring elections itself? Will the opposition agree to the president overseeing this even with judicial oversight? Would this process itself give rise to another petition? Can the President make these cancellations run until the end of the IEBC President’s term?

A repetition also risks provoking strong national tensions. Already, the uncertainty has been blamed for the falling shilling and rising inflation. Inflation hit 8.5% this week – the highest in 62 months – from 8.3% in July, due to a spike in food and fuel prices. The Kenyan shilling continued to weaken, in part due to jitters over the presidential election dispute. As of August 31, the shilling had fallen 0.03% to Ksh 120.05 against the US dollar as the Supreme Court began to hear the claimants’ arguments.

Foreign exchange reserves had fallen to $7.6 billion – equivalent to 4.39 months of import cover – in the week ending August 25, from $7.74 billion, equivalent to 4.46 months of import coverage, during the week ending July 28.

Activity on the Northern Corridor, although undisturbed, has slowed as carriers and businessmen in the Great Lakes region maintain a wait-and-see attitude until a solution is found.