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Why top court upheld Uhuru’s October 26 win

From left: Supreme Court judges Njoki Ndung’u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola delivering their full judgment on the dismissal of petitions against the re-election of President Uhuru Kenyatta yesterday. PHOTO | EVANS HABIL | NMG
From left: Supreme Court judges Njoki Ndung’u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola delivering their full judgment on the dismissal of petitions against the re-election of President Uhuru Kenyatta yesterday. PHOTO | EVANS HABIL | NMG 

Irregularities alleged to have occurred in the October 26 repeat election were not weighty enough to warrant cancellation of the entire process, the Supreme Court said yesterday when it delivered a detailed judgment on the petitions filed against the poll.

Neither of the two petitions challenging Uhuru Kenyatta’s re-election placed any tangible evidence of grave irregularities that would have moved the judges to nullifying the first repeat presidential election in Kenya’s history, the court said.

Former Kilome MP John Harun Mwau filed the first petition, while activists Njonjo Mue and Khelef Khalifa filed the second.

Chief Justice David Maraga, his deputy Philomena Mwilu, Jackton Ojwang’, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola found that the repeat presidential election was conducted in line with the Constitution, and that no evidence had been placed before them to prove otherwise.

The judges faulted both petitions for going big on allegations but failing to provide sufficient evidence.

“Not every irregularity is sufficient to invalidate an election. The irregularity must be of a profound nature for a court of law to invalidate the election. While the petitioners make far-reaching allegations, the same have been rebutted by counsel for the respondents,” the judges said.

Kenya’s apex court said the petitioners had failed to discharge the burden of proof and that the court had not been persuaded that the respondents violated the applicable law in the October 26 Presidential Election.

“We have come to the conclusion that the election was free, fair and transparent,” the Supreme Court judges said, insisting that former Prime Minister Raila Odinga’s letters to the Independent Electoral and Boundaries Commission (IEBC) communicating his decision to drop out of the race and his public pronouncements could only be considered as an intention to withdraw from the polls, hence was not sufficient to call off the vote.

Mr Odinga announced on October 10 that he would not be participating in the repeat polls, a move that Mr Mue and Mr Khalifa put at the centre of their petition. Mr Mwau had anchored his petition on the failure of the IEBC to conduct fresh nominations for the repeat elections.

But the Supreme Court found that a fresh nomination would only have been necessary if it had been the basis for nullification of the August 8 polls.
“Nomination was not the basis of nullification of the August 8 Election. The withdrawal of one candidate could not in law have led to invalidation of the fresh presidential election,” the judges said.

Mr Mwau, Mr Mue and Mr Khalifa’s petitions had also challenged the failure to conduct voting in 27 counties as a ground for nullification.

They argued that for polls to be in line with the Constitution, all 290 constituencies needed to have taken part in the voting.

But the judges argued that the IEBC provided voting materials in the 27 counties that did not participate in the polls, but violence marred the process.

They added that nullification of elections on those grounds could set a dangerous precedent that may encourage parties to sponsor violence as an excuse to seek nullification if the final results did not favour them.

“If we were to hold otherwise, the authority of the Constitution would be surrendered to cynical acts of violence. All one would need to do is to instigate violence in any corner of the Republic and thereafter petition this court to nullify the election,” the judges said.

The six judges, however, opted to stay away from two other issues raised at the hearing of the petitions — whether the election laws amended by Parliament in October were applicable and whether Mr Kenyatta was guilty of using State resources to campaign during the election period.

The judges held that the two issues are still the subject of suits before the High Court and the Court of Appeal. The petitioners had asked the Supreme Court to quash the amendments to the Elections Act.

Among the significant provisions of the Bill is a clause that would make it difficult for the Supreme Court to annul the election of the President on the basis of inconsistencies in the result forms as long as they are not meant to mislead.

Justice Ndung’u, however, held that the court should have dealt with all matters and that the request to quash the amendments should have been dismissed.

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