CORD and Jubilee alliances will take their fierce political rivalry to the Supreme Court over the outcome of last week’s presidential election.
On Wednesday at the High Court, the Independent Electoral and Boundaries Commission (IEBC) was ordered to provide CORD with voting data and other materials it wants to use in its petition challenging the commission’s declaration that Uhuru Kenyatta won the March 4 presidential race.
But it has now emerged that TNA and URP, the main parties in the Jubilee Alliance, are planning to be enjoined in the suit on behalf of their presidential candidate, Uhuru, whom the IEBC proclaimed as Kenya’s President-elect
The stage is now set for an epic and precedent-setting courtroom battle as Jubilee fights to ensure the Supreme Court does not overrule the IEBC. Jubilee has assembled its team of lawyers working from a building in Kilimani area, Nairobi. By Wednesday, CORD’s petition expected to be filed by Mr Eliud Owalo, chief campaigner for the alliance’s presidential candidate, Prime Minister Raila Odinga, was yet to be lodged with the Supreme Court, but Jubilee was working on what it anticipates will be the key issues in the case.
“We are not leaving anything to chance,” said a lawyer in the Jubilee legal team who did not want to be named.
“We have been preparing for this thoroughly well and we are ready to go.” The two main parties in the Jubilee alliance, TNA and URP, will apply to be enjoined in the petition once it is filed. They also intend to use their legal experts to back the IEBC lawyers in opposing the petition.
On Wednesday TNA and URP applied for and were granted access to the material CORD will be given by the IEBC and mobile phone service provider Safaricom.
But accessing most of the documents, which run into thousands, will be a big challenge for the parties.
Some documents are still in the constituencies in anticipation of petitions that could be filed to challenge election of other candidates. Some other documents sought by CORD are not available at the IEBC.
Own cost
The High Court yesterday ordered the IEBC to give Mr Owalo presidential election documents to inspect and copy at his own cost for his petition. He will also get the final results announced at the IEBC tallying centre in Bomas. Mr Nani Mungai, the lawyer for IEBC, told Justice Isaac Lenaola during yesterday’s hearing that Form 34 from the 33,000 polling stations used in the manual tallying is available at Bomas and Owalo could photocopy them at his own cost.
However, Form 35, which carries results of other candidates is only available in constituency polling centres where the petitioner can access the same.
Also available is Form 36 for the 291 constituencies, including the Diaspora. Owalo wanted the IEBC and Safaricom compelled to provide specific documents and evidence, which they were holding.
The parties went before Justice Lenaola at 8.00am but were given a three-hour break to go and negotiate. They returned to court before midday and informed the judge they had agreed on what should be released.
Earlier, Owalo withdrew the case against Safaricom after the mobile phone services company undertook to give him most of the information he had requested.
The IEBC will also give Owalo copies of six contracts signed with other companies for provision of software for the elections. It, however, added that the companies should be given a hearing if they object to the release of the contracts.
The commission told the court it had procured 17,000 mobile phones from Safaricom, for use in transmitting results from across the country. Safaricom was to provide IEBC with a secure virtual private network for the phones.
Other phones came from the commission’s stores bringing the total number to over 40,000, which were used in every stream in polling stations. IEBC’s lawyer, Mungai, said they had no serial numbers for the phones kept in their stores.
“We know which officers have them, but it will take days to get and verify them, their lawyer told the court.
The IEBC claimed there were no electronic results declared at Bomas as Owalo had claimed saying all results announced came from Form 36. “We cannot avail what was not declared,” Mungai added.
The CORD legal team will also have right to access the Green Books in the constituencies that were supposed to be signed by party agents and observers at the polling stations.
The commission said it had no provisional register of voters.
“We only have the final certified register which we can provide in soft copy because printing it would take seven days,” lawyer Mungai said.
They said they would provide the final tally of the presidential votes, which they have already hosted on their website but admitted that not all were signed by party agents.
Safaricom agreed to provide the petitioner with details of all the log files and information on the transmission of results to the IEBC from polling stations.
Legally disclosed
In a statement sent to the media later, the company’s corporate affairs director Nzioka Waita said the information to be provided would be limited to what can be legally disclosed, what is technically available and specifically only that which directly emanates from its contractual scope with the IEBC.
“That notwithstanding, we maintain that our contractual mandate to the IEBC was fully and properly executed,” Nzioka added.
Justice Lenaola, however, rejected an application by Jubilee to be enjoined in the case under that name questioning its legal standing.
“I did not see Jubilee when I got my ballot papers,” he quipped.
At that moment the coalition lawyer Katwa Kigen changed the application and asked to have TNA and URP enjoined as parties so they could also access the information from IEBC and Safaricom. His request was granted. Also enjoined was the Attorney General as a “friend of the court”.
Lenaola told the parties to appear before him tomorrow for further orders and directions. They would then record consent on the new developments.
Under the Constitution, any petition challenging the presidential election must be filed with the Supreme Court within seven days after announcement of the results, but excluding weekends and public holidays. The petition must then be heard and determined within 14 days.
The law, however, allows the Supreme Court to deliver a short judgment and then give reasons for its findings later. Its decision is final.
In a statement sent to the media later, the company’s corporate affairs director Nzioka Waita said the information to be provided would be limited to what can be legally disclosed, what is technically available and specifically only that which directly emanates from its contractual scope with the IEBC.
“That notwithstanding, we maintain that our contractual mandate to the IEBC was fully and properly executed,” Nzioka added.
Justice Lenaola, however, rejected an application by Jubilee to be enjoined in the case under that name questioning its legal standing.
“I did not see Jubilee when I got my ballot papers,” he quipped.
At that moment the coalition lawyer Katwa Kigen changed the application and asked to have TNA and URP enjoined as parties so they could also access the information from IEBC and Safaricom. His request was granted. Also enjoined was the Attorney General as a “friend of the court”.
Lenaola told the parties to appear before him tomorrow for further orders and directions. They would then record consent on the new developments.
Under the Constitution, any petition challenging the presidential election must be filed with the Supreme Court within seven days after announcement of the results, but excluding weekends and public holidays. The petition must then be heard and determined within 14 days.
The law, however, allows the Supreme Court to deliver a short judgment and then give reasons for its findings later. Its decision is final.
