Sunday, September 03, 2017

By William Yaw Owusu with additional files from agencies
Saturday, September 02, 2017

The Supreme Court of Kenya yesterday nullified the August 8 re-election of President Uhuru Kenyatta and ordered a re-run within 60 days.

In a 4-2 majority, the panel presided over by Chief Justice David Kenani Maraga upheld the opposition leader Raila Amolo Odinga’s reliefs that there were widespread irregularities that affected the outcome of the results and that the whole election was not organised in accordance with the dictates of the Kenyan Constitution.

President Kenyatta had been declared winner by the Kenyan Independent Electoral and Boundaries Commission (IEBC) Chairman Wanyonyi Wafula Chebukati on August 11 and was due to serve another five-year term, until Mr Odinga, leading the opposition National Super Alliance party (NASA), said the whole process was a sham and, therefore, filed a petition at the Supreme Court to challenge the declaration of the commission.

Panel Decision
In summary, Justices Prof Jackton Boma Ojwang and Njoki Susanna Ndung'u dissented while the Chief Justice together with his deputy Justice Philomena Mbete Mwilu, Justice Dr Smokin Wanjala and Justice Isaac Lenaola upheld the petitioners’ case, but a sixth judge Justice Mohammed Ibrahim, who fell ill on the second day of the case hearing, did not take part in the decision because he is still in hospital.

In what can be seen as a precedent in Africa, the judges, in a bold move, ordered the IEBC to conduct a fresh presidential election within strict confines of the law within 60 days.

"The presidential election was not conducted in accordance with the constitution, rendering the declared results invalid null and void," Chief Justice Maraga said, adding, “A decision is, hereby, issued that the elections held on August 8 were not conducted in accordance with the Constitution and the applicable law. The results are therefore invalid, null and void.”

"Election is not an event but an process. After considering the totality of the entire evidence, we are satisfied that the elections were not conducted in accordance to the dictates of the Constitution and the applicable principles."

The judgement is a slap in the faces of all the international observers who had said the election was credible, free, fair and transparent.

President’s Protest
Lawyers who represented President Kenyatta and the IEBC protested the judgment and sought explanations and clarifications from the judges.

President Kenyatta, after the verdict, said he disagreed with the judges who said the results should be annulled but said he respected “the ruling as much as it had been made.”

Jubilant Odinga
Raila Odinga was jubilant as he welcomed what he called a "precedent-setting ruling" by the court, saying, “For the first time in the history of African democratization, a ruling has been made by a court nullifying the election of a president.  This, indeed, is a very historic day for the people of Kenya and by extension the people of the continent of Africa."

He condemned the IEBC for trying to steal the verdict for President Kenyatta had the court not overturned their decision, saying, "We have no faith in the electoral commission as currently constituted."

"They have committed criminal acts. Most of them actually belong in jail and therefore we are going to ask prosecution for all the electoral commission officials who have committed this monstrous crime against the people of Kenya."

Hot Arguments
The two Justices, Ojwang’ and Ndung'u, who sided with the IEBC, had said that Raila Odinga had failed to prove claims that the polls were rigged in favour of President Kenyatta.

NASA lawyers, led by James Orengo, were happy with the decision and thanked the court for agreeing with them that IEBC flouted electoral laws.

“The decision is history. The first judgement in Africa that has upset a presidential election. Supreme Court has done Kenya proud and lived up to the principle and law regarding election,” he said.

“The decision by the court means well have new presidential election within 60 days. We hope this time around, they will not make the mistake of generating elections through computers.”

 “What IEBC did was treasonable because they wanted to declare the presidency against the Constitution. I don't think IEBC will preside over the election.

At Stake
Kenya's Supreme Court completed two days of hearings on Tuesday during which the opposition alleged fraud it claims handed victory to President Uhuru Kenyatta in the August 8 poll.

The court had ruled on whether the election should be annulled and rerun, as Odinga and his NASA sought, or the vote and result should stand, as the election IEBC and President Kenyatta contended.

Acrimonious Campaign
The presidential election — preceded by an acrimonious campaign and the murder of the IT manager at IEBC Chris Msando — pitted incumbent President Kenyatta against Raila Odinga, 72, who had run unsuccessfully three times in the past.

The August 11 declaration of President Kenyatta's victory with 54.27 percent of the votes, against 44.74 percent for Mr Odinga, was followed by two days of demonstrations and riots in the slums of Nairobi and in the western city of Kisumu, traditional opposition strongholds.

At least 21 people, including a baby and a nine-year-old girl, were killed on 11 and 12 August, mostly by police, according to an AFP tally.

Overwhelming Evidence
The court saw overwhelming evidence that contrary to IEBC IT Access Control and User Access Management Policy, user accounts were misused by both internal and external parties.

The election results were electronically transmitted and the IEBC server report provided by independent expert showed that strange IP addresses accessed the IEBC server!

Mahama Endorsement
"We have followed the whole process and wish to congratulate all on the process thus far. It is my fervent hope and expectation that the positive, peaceful and orderly atmosphere that we all experienced on 8 August 2017 will continue to prevail as we await the conclusion of this electoral process,” Ex-President Mahama, who was Chairman of the Commonwealth Election Observer Mission, had said after close of the August 8 ballot.

“Our overall conclusion is that the opening, voting, closing and counting process at the polling stations on 8 August 2017 were credible, transparent and inclusive. We commend and congratulate Kenyan voters, the staff of the Independent Electoral and Boundaries Commission, political party agents, candidates’ agents, the media and all security personnel for their commitment to the democratic process," he had added.

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