Independent Electoral and Boundaries Commission (IEBC) chairman Ahmed Isaack Hassan, Mr Kenyatta and Deputy President-elect William Ruto said in response to the petition that most of the issues raised lay with the human rights and commercial courts.
Mr Hassan said Odinga’s petition is disguised as being hinged on Article 140 of the Constitution but is grounded in the Bills of Right, which he said limits the jurisdictions of the Supreme Court over the petition.
“The fusion of the two distinct Constitutional issues takes away the jurisdiction of the court to determine the many issues raised in the petition, with the exception of the sole issue of the validity of Election,” said Hassan.
He added that Article 38 on which the petition is grounded had no relevance to the petition. Article 38 is a clause in the Bills of Rights that sets out the political rights of individuals.
Mr Hassan says the procurement issues raised by Odinga are not issues for determination by the Supreme Court. Mr Kenyatta said IEBC adhered to the law and carried out elections that are fair, transparent, devoid of discrimination, verifiable and accountable.
He said Mr Odinga was coordinator and supervisor of the execution of the ‘government to government’ tender for acquisition of the Biometric Voter Registration (BVR) kits from Canada, and, therefore, should not condemn a process he participated in.
He presented a video evidence to support his assertion. Further, he said, the Elections Act gives IEBC power regarding choice of use of technology in the electoral process.
“There is no requirement in law obliging the 1st respondent (IEBC) to register or identify voters by electronic means,” said Mr Kenyatta.
He said the crash of the electronic result transmission left the commission with the only lawful means of tallying and announcing on the basis of manual records entered on Form 34 at polling stations.
Mr Ruto says the nullification of elections would affect other elective posts on which the Supreme Court lacks jurisdiction, such as for members of Parliament, county assembly and women representatives, governors and senators.
Mr Ruto said the Prime Minister did not contest in the Elections outside that of the President and, therefore, lacked right to seek their invalidation.
The Prime Minister moved to the Supreme Court on Saturday seeking to nullify the IEBC’s declaration of Mr Kenyatta as President-elect and William Ruto as Deputy President-elect.
During a special session on Wednesday Supreme Court president Willy Mutunga and five other judges who will sit over the appeal heard that all the parties had filed their responses.
The petition was mentioned alongside other two petitions filed by civil society challenging the tallying process and another by a group of voters seeking interpretation on the legality of the inclusion of rejected votes in the final tally.
gfayo@ke.nationmedia.com
