Politician Harun Mwau has told the Supreme Court that the nullification of the August 8 election created a vacancy in the office of the president.
Through his lawyer
Benjamin Musyoki, the former
Kilome MP said IEBC should have conducted fresh nominations in line with article 138 of the constitution.
Mwau told the six-judge bench handling presidential election petitions that they stated a poll is not a day's event but a process triggered by nominations.
Musyoki noted IEBC and its chairman Wafula chebukati did not conduct nominations before the fresh election yet they were aware of provisions of the Elections Act. They cited
article 140 on the annulment of elections.
"This, in our view, is a serious serious deviation from constitutional provisions, bearing in mind the directions and orders of this court...," Musyoki said.
"....the
fresh election was to be conducted under the law, not the whims and desires of the electoral commission and the chairman who are the first and second respondents."
Musyoki further argued that the constitution is written in simple English and needs no interpretation. He noted
a presidential election can be annulled under articles 139, 140, 144, 145 and 146.
The lawyer said these articles gives the electoral agency 60 days to conduct a repeat or fresh election depending on circumstances.
"We are aware the excuse or reason given on how the election was conducted is centered on time constrains," he said.
"What if the office of the president becomes vacant due to death or incapacitation? Shall we have no time for nominations and let the commission pick someone to lead millions of Kenyans against their will?"
The lawyer said 60 days are enough for nominations and other processes.
Section 14 (2) of the Elections Act requires IEBC to specify the day on which the election must be conducted, which must be 21 days after nominations, he added.
"It is a fact that when an election is annulled under section 140, all processes are done away with, including all the previous candidates," Musyoki said.
His sentiments were echoed by lawyer Mark Ouma who said nominations before a presidential election are critical yet IEBC "deliberately ignored" the exercise.
Ouma said nomination certificates for all the candidates expired immediately after the court nullified the original election.
"According to this court, an election did not even take place...IEBC ought to have allowed nominations before the repeat election."
More on proceedings:
Also read:
