President Uhuru Muigai Kenyatta’s lead lawyer argued that checks for whether the 8th August election met the constitutional threshold have been satisfied and Kenyatta was properly elected president.
Fred Ngatia, Kenyatta’s lead lawyer, told the Supreme Court on Tuesday that no evidence was presented to the court to show that the election was not held or that voters were unable to cast their ballots or that the election was not done by secret ballot.
Ngatia said the constitutional requirements that an election be held, voters be able to cast their ballots and the election be held by secret ballot were met. He said Kenyatta satisfied the constitutional thresholds of garnering 50 percent plus one of the votes cast and 25 percent of votes cast in at least 24 counties to be declared president.
“We are in unison that elections were held throughout the republic and in a peaceful manner,” Ngatia told the court.
He said there were errors in the tallying of votes but they were “miniscule” and had little impact on the margin of 1.4 million votes between Kenyatta and his closest competitor, Raila Amolo Odinga.
“That is not to say that we for one moment countenance the taking of a single vote from the first petitioner,” he said.
Ngatia was making submissions during a hearing at the Supreme Court on a petition challenging Kenyatta’s election as president. Kenyatta’s legal team was given three hours to make their submissions on the petition Odinga and Stephen Kalonzo Musyoka filed on 18th August.
On Monday the court heard submissions from Odinga’s and Musyoka’s lawyers and the legal teams of the Independent Electoral and Boundaries Commission (IEBC) and IEBC Chairman Wafula Chebukati. The IEBC and Chebukati are the first and second respondents in the case. Chebukati has been named in the petition because as IEBC chairperson he was the returning officer for the presidential election. Kenyatta is the third respondent.
During Tuesday’s hearing, Ngatia disputed the allegations made in the petition that Kenyatta had intimidated or bribed people to vote for him. Ngatia said an allegation was made that Kenyatta intimidated chiefs in Makueni into voting for him.
He said the Principal Secretary Interior, Karanja Kibicho, swore an affidavit, which was filed in court, that he had received intelligence that some chiefs in Makueni County were campaigning for candidates of the National Super Alliance (NASA) coalition, whose flagbearer was Odinga.
Ngatia said it is with this information in mind that when Kenyatta went to Makueni he reminded chiefs that as public officers they should remain impartial during the elections. He said in the results of the just concluded election, Kenyatta got only “a small decimal” of the votes that Odinga received in Makueni County.
The allegation, “is disproved by the results at the poll. It is disproved that no chief has been terminated from employment,” Ngatia said.
“It is quite unfair for an accusation of that magnitude has been made that ‘You intimidated chiefs’ whereas the opposite is true,” he said.
He said it was the same case with the allegation that when Kenyatta went to campaign in Kisii and Nyamira Counties he offered compensation to people displaced by the post-election violence of 2008 to get them to vote for him.
Ngatia said the issue of compensation for internally displaced people has been the responsibility of the government since the violence of 2008 ended. He told the court there is a National Consultative Committee that was responsible for administering any compensation to be given to IDPs. He said the money that committee dispensed was approved by the National Assembly.
“There is no evidence that any one of those beneficiaries was influenced by what he or she received from the National Consultative Committee. Not a single iota of evidence,” Ngatia said.
Ngatia told the court it was facing two realities. One would be to uphold the petition and “this nation will have to contend with another presidential election with all the invasive aspects of a presidential election.”
The other reality would be to allow Kenyatta to “move on with constituting a government. He has offered a hand of fellowship to the petitioners.”
“If given that opportunity by this noble court, ‘What I look for is an inclusive government where all Kenyans will be participants’,” said Ngatia, expressing Kenyatta’s wish.
Ngatia told the court that, “having demonstrated that elections were held within the expectation of the constitution it would be unfair to invalidate them for infractions, which infractions we have demonstrated do not exist.”
Next to make submissions was Harrison Kinyanjui, representing Michael Wainaina, who was also a presidential candidate in the just concluded election. Kinyanjui, who was given 20 minutes to speak, said his client was satisfied that the election was fair and he asked the petition be dismissed.
He said a number of allegations had been made about how the election was managed but no evidence was presented. He said an allegation had been made that the IEBC’s system had been hacked.
“Who manipulated the system? It is not stated. When was it done? It is not stated,” Kinyanjui said.
After Kinyanjui spoke, the lawyers for Odinga and Musyoka were given the opportunity to respond to the different submissions made calling for the dismissal of the petition. The Supreme Court allocated them one hour for their rejoinder.
Otiende Amollo said the respondents did not answer the issues raised in the petition. He said one issue was whether the records of the votes counted at the polling stations were filled and transmitted electronically as required by law. The records Amollo was referring to are Forms 34A that each polling station produced. There were 40,883 polling stations in this August’s election.
“In their address to you they (the IEBC and Chebukati) admit they did not transmit at least 11,000 of those forms. They tell you whether those forms were transmitted or not is irrelevant because the announcement (of the result of the presidential election) was based on Forms 34B,” said Amollo.
“In the end, the results are neither based on an electronic transmission nor are they based on a manual transmission” of the records of the vote count, said Amollo.
He went on to highlight examples of the contradictions in the responses of the IEBC. On the issue of whether all the Forms 34A were electronically transmitted before the presidential result was announced, Amollo said one laywer, Paul Nyamodi, said yes and another lawyer, Issa Mansur, said no. Nyamodi was one of the lawyers representing the IEBC. Mansur was representing Chebukati.
“I submit that the contempt and un-seriousness (the IEBC and Chebukati have shown) reflects the un-seriousness with which they treated the electoral process,” Amollo said.
Pheroze Nowrojee also responded on behalf of the petitioners to the submissions by the legal teams of the IEBC, Chebukati and Kenyatta.
Nowrojee said the IEBC accepted that at the time the presidential election result was being declared on 11th August, more than 10,000 Forms 34A had not reached the national tally centre, where the presidential election result was being collated. He said that in correspondence with NASA in the days after the declaration of the presidential election result, the IEBC said those Forms 34A had still not reached the national tally centre.
“Supposing you change the 34As to match the results that you have been given? My Lords, in order to have 41,000 false 34As you need time,” said Nowrojee.
“And that is what may have happened, this is what could have happened because My Lords have no other evidence before you and the only person who knows what was being done is the second respondent and the first respondent and they have not chosen to explain this Bomas Triangle,” said Nowrojee.
A little earlier he had talked about the Bermuda Triangle, the area in the Atlantic Ocean where it is said planes go missing. He said Bomas of Kenya, the venue of the national tally centre had taken on the same characteristic in relation to Forms 34A.
Orengo rounded off the rejoinder. He observed that the petition had been described by one of Kenyatta’s lawyers, Ahmednasir Abdullahi, as “science fiction” but the lawyers for the respondents still used all the six hours allocated to them to make submissions on the petition.
“If there was no case in the petition they should have taken the short cut of filing an application to strike out the petition,” Orengo said.
Attorney General Githu Muigai was the next to speak. He addressed the Supreme Court as a friend of the court and was limited to addressing points of law. Muigai said it would not be good if the court heeded submissions that it put aside the 2013 judgement it made on that year’s presidential election petition.
“I beesch you to do one thing about the future of our jurisprudence. Create continuity and certainty. You are being asked to abandon standards that you have confirmed not in one case, but in seven cases. How could you do that without throwing your jurisprudence in a tailspin?” said Muigai.
Stephen Mwenesi spoke after Muigai, on behalf of the Law of Society of Kenya, which was also admitted as a friend of the court.
Mwenesi said the Supreme Court’s jurisdiction to handle presidential election petition was only explicitly referred to in the constitution. He said this was different from election petitions for other offices where jurisdiction and standards to be followed were laid out in Acts of Parliament.
He said the constitution said the Supreme Court was not bound by its previous decisions and if the judges wanted to review the court’s 2013 judgement on that year’s presidential election petition, “You have the freedom to do so.”