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September 22, 2018

Not yet Uhuru

Opposition leader Raila Odinga leaves the Supreme Court after President Uhuru Kenyatta’s reelection victory was declared invalid on Friday. /REUTERS
Opposition leader Raila Odinga leaves the Supreme Court after President Uhuru Kenyatta’s reelection victory was declared invalid on Friday. /REUTERS

In a dramatic precedent-setting ruling for Kenya and Africa, the Supreme Court on Friday nullified President Uhuru Kenyatta’s reelection, citing irregularities and illegalities.

It ordered a new presidential vote within 60 days.

This was the first time an African court has nullified the election of a sitting president. The ruling was hailed in some quarters as a demonstration of judicial independence and a maturing democracy. Critics said it perverted the people’s will.

The reversal of Uhuru’s 54 percent win stunned many, including investors at the Nairobi Securities Exchange, which briefly halted trading after blue-chip shares plummeted.

  Both Kenyatta and his opponent NASA leader Raila Odinga said on Friday they are ready for fresh elections involving all candidates.

Following the judgment, the court broke into cheers and songs, with Raila punching the air with his fist.

The court area and potential hotspots were bristling with security personnel but there was no violence.

There was wild rejoining in opposition strongholds, dismay and disbelief in Uhuru’s Jubilee Party turf.

On August 11, Uhuru had been declared winner with 8.2 million votes to Raila’s 6.7 million. The former Prime Minister filed a Supreme Court petition, challenging the win, calling the election rigged.

Raila called IEBC commissioners and top officials criminals, said they should be imprisoned and a neutral team named to conduct new polls.

Meantime, three voters on Friday sued to stop the IEBC from conducting the fresh presidential poll ordered by the Supreme Court.  

 They are Brian Asin, Ben Wanasakaami and Kevin O. Olwanga

   They argue IEBC boss Wafula Chebukati, all commissioners and CEO Ezra Chiloba have been found guilty of misconduct by the Supreme Court, falling short of Chapter 6 of the Constitution.

“A declaration a person has been mismanaging the presidential election, and in particular the 1st to 8th respondents, shall not qualify to hold a public/state office,” the petition says.

IEBC chair Chebukati, Chiloba and six commissioners have been named as respondents.

President Uhuru, meanwhile, said he disagreed with the ruling, adding that six judges could not speak for the Kenyan people. But he said he respected the ruling and called for calm.

Jubilee holdslarge majorities in the National Assembly, Senate, Council of Governors and some county assemblies. He said JP would campaign on the same pro-development manifesto.

The 4-2 ruling of the David Maraga-led court (one justice was absent and hospitalised) was delivered under tight security.

Raila, 72, alleged widespread fraud in the election, transmission tampering and attempts to hack the supposedly impregnable computer systems.

“Having considered  evidence by a majority decision, Articles 10, 38, 81 and 86 of the Constitution and Sections 39 ( 1 ),44 (a) and 83 of the Elections Act, the first respondent (IEBC) failed, neglected or refused to conduct the elections in a manner and the dictates of the Constitution,” the four judges said.

Maraga said, “Election is not an event, it is a process from the beginning to the end. We were satisfied that the election was not conducted in the dictates of the Constitution.”

        The majority are Justices Maraga, Philomena Mwilu, Smokin Wanjala and Isaac Lenaola. Judge Mohammed Ibrahim was admitted in hospital.

Two judges — Njoki Ndung’u and Jackton Ojwang’ — dissented and dismissed Raila’s petition in totality. They read brief statements in court.

Raila will feel vindicated against accusations he was a bad loser.

The decision is a massive indictment of the new electoral commission — which replaced the previous body that the opposition sent packing over allegations of vote rigging in 2013.

NASA now wants a new team to manage the presidential rerun in 60 days

The verdict also damages the credibility of international and some local election observers who profusely praised the election, especially Election Day, as free, fair and credible. They did not look closely at issues NASA raised and generally told Raila to move on.

People will  be watching for the reaction of former US Secretary of State John Kerry whose positive assessment was used in court. He headed the observer mission for the Carter Center.

Regardless of winners and losers, it was a proud moment for Kenya, which has suffered post-election violence. The debate on the validity of the election was conducted in court, not in the street.

CJ Maraga said in his opening statement, “The greatness of a nation lies in its fidelity to the Constitution and the strict adherence to the rule of law.”

Though the four judges found no wrongdoing by Uhuru, the decision casts doubt on the Independent Electoral and Boundaries Commission’s fidelity to the law.

In their dissenting views, Njoki and Ojwang said Raila’s petition was not backed by any evidence to prove irregularities significant enough to affect the outcome.

Ojwang said only general attribution of impropriety has been made.

“Much of the evidence is largely ascertained and there ought to be factual evidence. There is no iota of merit to upset the will of Kenyans.  The most democratic principles of the electors being left to choose their leader, without invocation, for my part, I would dismiss the entire petition,” Ojwang said.

Judge Ndungu said mistakes do happen and if they did, they were not deliberate or in bad faith.

The court said they determined four issues: whether the poll was conducted in accordance with election principles and law; whether there were illegalities or irregularities; if there were illegalities, what was their impact on the election’s integrity and what consequential orders should be issued, if any. 

The majority found there were irregularities that impacted the final outcome.

They said the IEBC failed to conduct the election in accordance with law.

“As to whether the illegalities affected the integrity of election, the court was satisfied they did thereby affect the integrity of the elections,” they said.

Raila said outside the courthouse, “This is indeed a very historic day for the people of Kenya and by extension to the people of the continent of Africa.

 “For the first time in the history of African democratisation, a ruling has been made by a court, nullifying irregular election of a president.”

“We will have to look deeply into the conduct of the IEBC as we do not believe they will conduct fair elections” Kalonzo said.

Kenyatta’s lawyer Ahmednassir Abdullahi  said the decision had been “very political” but had to be respected.

Opposition supporters celebrated outside court and in opposition strongholds.

The announcement on August 11 of Uhuru’s victory sparked days of sporadic protests in which at least 12 people were killed.

Devolution CS Mwangi Kiunjuri said the ruling only strengthened Jubilee’s resolve, saying they won fair and square and will do so again.

On Friday, the Law Society of Kenya, as a friend of the court, said Maraga’s directions were clear.

Murang’a Senator Irungu Kang’ata said Jubilee has a majority in Parliament.

“It is not over. We will mobilise our people again and ensure Uhuru is reelected again,” he said at court yesterday. “We shall win again.”




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