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February 23, 2019

Why it would be hard to nullify Uhuru’s win

Supreme Court judges arrive for a hearing of the petition challenging NASA's presidential election petition, August 28, 2017. /REUTERS
Supreme Court judges arrive for a hearing of the petition challenging NASA's presidential election petition, August 28, 2017. /REUTERS

It would almost be impossible to invalidate President Uhuru Kenyatta’s reelection at the Supreme Court after the radical election amendment became law on Thursday.

The Jubilee-championed changes makes it mandatory that a petitioner must prove in court violations to the Constitution or any electoral law significantly alter the presidential outcome, as declared by the IEBC.

The new Act also seeks to protect the result from being annulled on the basis of inconsistencies in the result forms as long as they are not meant to mislead.

“A court shall not declare an election void for noncompliance with any written law relating to that election if it appears that the noncompliance did not substantially affect the result of the election,” Section 83 of the new Election Act states.

While nullifying the August 8 vote, the seven-member judge bench ruled that elections are not events but processes.

“Elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe,” Deputy Chief Justice Philomena Mwilu said while reading the detailed ruling.

She continued, “Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution.”

So far, no petition has been filed at the apex court to invalidate Uhuru’s win. However, NASA and a section of the civil society have strongly objected Uhuru’s win and poked holes in the electoral process.

The seven-day widow for the filing of a petition will officially lapse on Monday at midnight.

Already civil society has highlighted inconsistencies in the October 26 repeat polls involving among others, the register and number of valid votes cast.

Under the umbrella of Kura Yangu, Sauti Yangu, the group says the IEBC got its math wrong in the final declaration, with the figure for three candidates varying from the calculations of the 47 county figures.

There is speculation the lobby could challenge Uhuru’s win.

Already, the Katiba Institute and Africog - two other NGOs opposed to the conduct of the repeat vote – have moved to court seeking to have the electoral laws declared unconstitutional.

In his acceptance speech after the declaration of presidential results on Monday, Uhuru said he failed to sign the Bill because law must be founded on “reasoned national consensus”.







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