Prime Minister Raila Odinga moved to the Supreme Court on Saturday, seeking to nullify the Independent Electoral and Boundaries Commission’s (IEBC) declaration of Mr Kenyatta as President-elect and William Ruto as Deputy President-elect.
Mr Kenyatta, of the Jubilee Coalition, was declared winner on March 9 after garnering 6,173,433 votes against Mr Odinga’s 5,340,546, but Cord has disputed the results, alleging widespread electoral irregularities.
According to the results declared by IEBC, Mr Kenyatta garnered 50.07 per cent of the total votes cast to emerge the winner with a margin of 8,100 votes. Mr Odinga has named IEBC, commission chairman Issack Hassan, Mr Kenyatta and Ruto as respondents.
He says that in light of the widespread irregularities and if the votes wrongfully credited to Mr Kenyatta are removed, Uhuru’s votes would fall below the 50 per cent plus one vote target for a first round win.
“The third respondent did not obtain the total of more than fifty per cent of the valid votes cast as required by Article 138 (a) of the Constitution in order to be duly elected,” says Mr Odinga in the petition. He therefore wants Mr Kenyatta’s win nullified and fresh presidential elections held.
Mr Odinga says that in some polling stations, the valid votes cast exceeded the number of registered voters. Cord has identified these as Tiaty, Laisamis, Igembe Central, Buuri, Chuka, Iburi Igamba Ngombe, Lari, Laisamis, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai constituencies.
“Regulations 83(1) of the Elections (general) Regulations 2012 provide that in tallying an announcement of elections results from polling stations in respect of each candidate, the returning officer shall disregard any polling station in which he finds that the valid votes exceed the number of registered voters,” says Mr Odinga.
He says if results from these polling stations had been cancelled as required by the law, then Mr Kenyatta’s votes would have fallen below the 50 per cent mark.
Mr Odinga also cites Webuye East Constituency where he says he got 20,932 votes, but the results announced at Bomas showed he got 16, 461 votes and Nakuru County where Mr Kenyatta’s votes were increased by 3,796.
Further, Cord says IEBC failed to follow the proper electoral system and voting process as required in the law.
According to Cord, the total number of registered voters published by IEBC on February 20 after completion of cleaning up of the voters’ register is 14,267,572, but says the number given on March 9 when declaring the result was 14,352,533.
Cord says IEBC increased the number of registered voters after the release of the final register and that this violated the constitution, the Elections Act and the IEBC Act. “All and any votes cast under such circumstances are thus unconstitutional and invalid,” says Cord.
The failure of the Biometric Voter Identification (BVI) will for the next two weeks form the grounds on which Cord’s petition is anchored.
The coalition says failure of the BVI and electronic result transmission system, all intended to make the process transparent and free of any malpractices, cast doubt on the process.
Mr Odinga says the electoral commission failed to act on the advice of its ICT director concerning the incompatibility of the BVI devices by Face Technologies with other technologies the commission relied on and Safaricom’s advice that the transmission system could fail. Cord claims the failure of the system prevented millions of voters from having their votes counted.
According to Cord, KenCall co-hosted the IEBC server and that of Mr Kenyatta’s party, The National Alliance (TNA), giving their rivals access to confidential information.
The Supreme Court has 14 days to hear and determine the petition. According to the time line issued by the Judiciary, the registrar will publish the petition within the first three days of the petition’s filing.
If the election is found to be invalid, a fresh election will held within 60 days and in the circumstance the petition is dismissed the President- elect will assume office on the seventh day following the date on which the decision is given.
The Supreme Court judges are Chief Justice Willy Mutunga, Smokin Wanjala, Philip Tunoi, Jackton Ojwang, Muhamed Ibrahim and Njoki Ndung’u.
Cord will serve the respondents within the first three days of filing the petition and the respondent will then file and serve their responses within three days of service.
The pre-trial will take place on the 9th day from the date of filing of the petition. The hearing will take two days and the judges will deliver their verdict on or before the 14th day from the day of the filing of the petition.
According to the chief registrar, Gladys Boss Shollei, the Judges can give their verdict and write their reasons later. The Supreme Court’s decision is final.
gfayo@ke.nationmedia.com
