Sunday, 24 March 2013

Battle rages for Kenya’s presidency

Supreme Court to decide Kenya's next course of action as it determines election petitions before it. FILE/TEA 
Supreme Court to decide Kenya's next course of action as it determines election petitions before it. FILE/TEA  Nation Media Group

By SEKOU OWINO Special Correspondent

Posted  Saturday, March 23  2013 at  17:03

Kenyans will this week know whether president-elect Uhuru Kenyatta will assume power or not when the Supreme Court determines the two election petitions before it.The first and more widely known petition is by the Cord presidential candidate Raila Odinga, and seeks to have the declaration of Uhuru Kenyatta as winner of the presidential election declared illegal, and fresh elections conducted.In the petition, Mr Odinga argues that the Independent Electoral and Boundaries Commission did not conduct the presidential elections as required by the law: That is, in a free and fair manner.Specifically, the petition contends that the whole of the process of the elections was flawed — from the manner in which the IEBC conducted the process of acquisition of the biometric voter registration system, the registration and compilation of the register of voters, the actual conduct of the voting and the manner of tallying of the votes and declaration of the results.

In summary, Mr Odinga’s petition contends that the IEBC did not administer the election process in a manner that would meet the constitutional and statutory standard of free and fair. This claim states that the freedom was not accorded to all voters who did not get to vote because the polling stations were opened late and closed much earlier on the election date due to the failures on the part of the IEBC and its officials. This action, he states, deprived the people of their right to vote.Secondly, the petition argues that the presidential election was not conducted in line with the constitutional requirements of a framework for a proper electoral system in which there is equal opportunity for all voters and efficient administration of the voting exercise. He argues that the failure to implement the requirements of the law was seen in that, in some instances, voters were given multiple voting papers of the presidency and in some polling stations, the number of voters exceeded the registered voters in the IEBC register.The petition further argues that the number of votes declared as having been cast for the persons seeking other offices such as governor, senators and members of the National Assembly do not compare realistically with those declared as having been cast for the presidency, that the numbers declared for the presidency were unrealistically higher, implying that too many persons came and voted exclusively in the presidential contest and not for the other offices.

The petition argues that this is not only implausible but an indication of ballot stuffing.Mr Odinga’s petition also states that subsequent to the casting of ballots, the IEBC and its officials failed to count, tally and announce the votes accurately. He argues that the constitutional requirement for a free and fair election made it imperative that the tallying be transmitted firstly by electronic means to the National Tallying Centre, and thereafter the physical documents for the tallying be delivered to the tallying centre for verification.The failure on the IEBC’s part to do this, the petition argues, resulted in an increase of votes between the constituency tallying centres and the National Tallying Centre. This, he argues, resulted in the padding of the Jubilee candidate’s votes and the reduction of the Cord candidate’s votes.The petition also argues that the use of an electronic tallying system for results with regard to the presidency was imperative, and the failure to use it therefore so compromised the process of tallying as to render the results declared a nullity.Mr Odinga asks the court to make several orders to the effect that the election held on March 4 was flawed in process and its results invalid and that the certificate issued to the Jubilee candidate as president-elect be cancelled and fresh elections held.ALSO READ: Poll petition puts Kenya in transition dilemma

The Jubilee candidates, Uhuru Kenyatta and his running mate William Ruto, have responded to the petition by stating that there is no legal substance to or credible evidence for the claims made in the petition.They say the elections were held properly within the law and that the declared results are valid. The petition, in their view, is brought in bad faith so as to deny them their rightful entitlement to the offices of president and deputy president. They also say the petitioner is simply misusing the process of court for political ends and that the petition should be dismissed.The IEBC, on its part, argues that the elections were held within the legal requirements generally and that the manual tallying of the results was a method permitted by law. It argues that the constitutional standard for invalidating the elections has not been proved and therefore the petition should be dismissed.The IEBC also contends that the court ought to seriously consider the public interest in considering whether to grant the petitioner’s prayers for annulment of the elections and ordering for a fresh election.

The second petition, filed by the Africa Centre for Open Governance (Africog) also challenges the manner in which the IEBC conducted the election. Its complaint is that the failure by the IEBC to use the electronic method of tallying of votes rendered the system opaque and susceptible to manipulation.This, the petition continues, rendered the results declared largely unverifiable and therefore failed to satisfy the constitutional and legal requirement for transparent processes of elections. It asks the court to declare that the methods used by the IEBC in tallying the results did not comply with the law.The IEBC has responded to the Africog petition by stating that the electronic system failed for technical reasons and the failure was not deliberate, and that the resorting to the manual system was permitted by law and, therefore, valid.

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