Supreme Court of Kenya set for pre-trial conference on Tuesday, November 14, 2017

By Samuel Ndalusia

November 13th, 2017

The highest court in the land will on Tuesday convene for a pre-trial conference for the three presidential election petitions that were filed with its registry. The court has until midnight Monday, November 20, 2017 constitutionally to hear and rule on the petitions.

The three petitions brought forward as a result of the October 26 repeat presidential polls were filed by Njonjo Mue together with Khelef Khalifa, former assistant Minister Harun Mwau and an NGO known as the Institute for Democratic Governance.

Petitions filed by Njonjo Mue and Khelef Khalifa, and the other one by former Assistant Minister Harun Mwau are contesting the outcome of the October 26 fresh presidential poll and want it invalidated while the petition by the Institute for Democratic Governance through its lawyer Kioko Kilukumi wants the NASA coalition leaders Raila Odinga, Kalonzo Musyoka and Musalia Mudavadi among others held in contempt and found guilty of infringing the rights of the citizens to participate in the repeat polls.

The petitions by Mue and Khalifa and a separate one by Mr Mwau also accuse the electoral body for failing to carry out a constitutional requirement for a credible election by failing to initially carry out nominations after the August 8 presidential vote was invalidated.

The Tuesday’s pre-trial conference will be framing contested and uncontested issues in the petitions; possibly consolidate some petitions; give directions on the place and time of the hearing of the petition; give directions to the electoral commission on the handling of all the relevant election materials and documents relating to the petition before commencement of the hearing; and make such other orders as may be necessary to ensure a fair determination of the petition.

Some of the preliminary issues that the court will be expected to deliberate on in determining the validity of the October 26 repeat presidential election will include the question as to whether the Independent Electoral and Boundaries Commission (IEBC) violated Article 82(1)(b) and 2 (a, b) of the constitution by not complying with the mandatory requirement for nominations; and the question as to the constitutional effect of the NASA leader Raila Odinga’s withdrawal in the October 26 repeat poll.

Raila Odinga withdrew his candidature from the repeat polls on October 10, 2017 citing Supreme Court decision of 2013 on a question brought for direction by Attorney General, whereby the Supreme Court found that a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election and since such a fresh election is built on the foundations of the invalidated election, it can, in court’s opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest. Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(1) (b) would become applicable, with fresh nominations ensuing.

Other issues that are expected for discussions in court in determining the constitutionality of President Uhuru’s win in the repeat poll will revolve around the president’s unpopular mandate given the low turnout in the October 26 repeat poll with only about 38% of registered voters turning out to participate in the exercise; relocation of some polling stations in some regions during the repeat poll; lack of participation in the repeat poll by at least 25 constituencies in opposition regions, appointment of some returning officers without gazetting and the printing on the ballot paper of the name of at least one presidential candidate (Mr. Jirongo) without gazetting.

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