Kenya 2022: Looming court battle on presidential election

By Jeff Otieno
Posted on Wednesday, 17 August 2022 11:40

Kenya's opposition leader Odinga addresses the nation after Ruto declared president-elect
Kenya's opposition leader Raila Odinga of the Azimio La Umoja (Declaration of Unity) One Kenya Alliance, who competed in Kenya's presidential election, addresses the nation following the announcement of the results of the presidential election, in Nairobi, Kenya August 16, 2022. REUTERS/Thomas Mukoya

As was the case in Kenya back in 2017, the credibility of this year’s presidential election will once again be decided by the Supreme Court after the Azimio La Umoja flagbearer Raila Odinga rejected the results terming them ‘null and void’.

Speaking a day after the Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati declared William Ruto the winner, Raila vowed to seek justice in court to overturn the win.

“In our view, there is neither a legally and validly declared winner nor a president-elect. Mr. Chebukati’s announcement purporting to announce a winner is a nullity,” he said, accusing the chairman of acting with gross impunity and in total disregard of the constitution.

“He could have plunged the country into chaos had our supporters not exercised great restraint,” Raila said.

Our team of lawyers will prove to the Supreme Court that the presidential election was quantitatively and qualitatively flawed

Ruto was declared the winner after garnering 50.49% of the vote against Raila’s 48.85%.

However, the announcement was marred by controversy after four commissioners disowned the final results declared by Chebukati.

Nullified presidential election

In 2017, Raila successfully contested the presidential election outcome that declared President Uhuru Kenyatta the winner.

The Supreme Court found that Raila – the National Super Alliance (NASA) presidential candidate – had a solid case, stating that the exercise was marred by irregularities hence could not meet the threshold of a free and fair election. The apex court ordered a repeat election that was however boycotted by Raila who argued that the IEBC had failed to address all the concerns raised by NASA.

Speaking to party members at the Kenyatta International Conference Centre (KICC) on Tuesday, Raila claimed that the IEBC chairman was the only person who accessed the tallied figures and informed the other commissioners without permitting any discussion.

He termed the four commissioners who walked out on Chebukati as heroes “who stood up to bullying and illegal conduct of Mr. Chebukati”.

Teams of lawyers

The two camps have already assembled teams of lawyers who will either defend or seek nullification of the presidential results.

“We are ready for them [the Azimio legal team]. We will defend our victory and we are sure the court will uphold the win by the deputy president,” said Nelson Havi, a member of Ruto’s legal team.

A source from the Azimio coalition, who did not want to be named because of the sensitivity of the matter, says Raila has also put together a legal team that is in the process of gathering evidence against IEBC and Chebukati.

“Our team of lawyers will prove to the Supreme Court that the presidential election was quantitatively and qualitatively flawed,” says the source.

He says the case will be filed at the Supreme Court within seven days as required by law. This means that President Uhuru Kenyatta will continue occupying the top seat until the case is heard and determined.

Giving the reasons for their walkout, the four commissioners said Chebukati insisted on announcing the results despite concerns they raised about the final figures noting that the aggregation of the results were not mathematically correct and did not include totals of registered voters, votes cast or rejected votes.

Important facts

IEBC’s Vice-Chairperson Juliana Cherera, who spoke on behalf of the other commissioners, said Chebukati’s summation is not logical, adding that it lacked important facts to support the percentages scored by respective candidates.

“The total percentage from figures displayed by four candidates is 100.01%, which translates to 142,000. This will make a significant difference in the final results,” said Cherera.

Her calculation was however found to be incorrect by Tony Gichuhi, the chairperson of the department of statistics and actuarial science at the University of Nairobi, who said 0.01% of 14.2 million (the approximate number of voters who cast their ballot) is 1420 and not 142,000.

Constitutional lawyer Charles Kanjama says he was taken aback when the four commissioners mentioned the 100.01% issue as one of their main reasons for disowning the results.

“I was quite surprised that this kind of an error makes a commissioner reject the results. I was also surprised that the Vice-Chair made an error in computing what 0.01% of 14.2 million represents, which was a bit perturbing,” says Kanjama.

Point of divergence

The lawyer observes that the point of divergence between the four commissioners and the chairman is whether all the commissioners should be involved in verifying the presidential tally and agreeing on the final figure before it is announced.

“The four commissioners insinuated that the presidential election does not have a national returning officer even though [the] IEBC does gazette the chair of the commission as a returning officer. The true position is that the returning officer has the delegated authority  to declare the results,” says Kanjama, adding that Chebukati did not break the law in declaring the final results.

The Supreme Court might also find that the Azimio team has no case hence upholding Ruto’s victory to pave [the] way for his swearing-in as president

The lawyer however says the chair of the commission, when playing the role as a returning officer, ought to share the election result forms with his fellow commissioners as a sign of good practice in management.

According to the Elections Act, there are two grounds on which elections can be overturned. First, the failure in the quantitative test where the votes that have been indicated on the final tally do not reflect the votes cast. Second, the failure in the qualitative test,  where the processes were marred by irregularities that introduce significant doubt as to whether the outcome was free and fair.

Kanjama says if the Supreme Court declares the presidential election null and void then a repeat election will have to be conducted. However, if the judges declare the exercise invalid but one that does not require repeat elections, then there will be a runoff between Raila and Ruto.

“The Supreme Court might also find that the Azimio team has no case hence upholding Ruto’s victory to pave [the] way for his swearing-in as president,” he says.

Azimio’s arguments

Kanjama predicts that the Azimio team will make two sets of arguments: The first one could be the arithmetic and quantitative arguments, which will be based on addition and subtraction of the votes cast, while the second one could be the qualitative arguments that will focus on the participation of stakeholders in the tallying process.

The arithmetic one has been proven to have little weight. However, if the court finds Chebukati wrong on the qualitative question, that is, he did not involve the other commissioners in the tallying process, the judges will first have to consider whether the issue is significant enough to influence the outcome of the final result,” the lawyer says.

Kanjama says Azimio will also have to provide evidence that there was injection of algorithm in the IEBC system, which was used to interfere with the process of tallying by media houses, evidence of discrepancy in terms of the tallies of presidential, senatorial and gubernatorial elections, evidence of discrepancy between the KIEMS (Kenya Integrated Elections Management System) kit figures on voter turnout and the actual results.

“Their [Azimio] leaders have been making the above allegations, the onus will be on them to provide evidence and they have seven days to gather the evidence and file a case,” he says.

Despite the challenges, the lawyer argues that the IEBC made improvements on issues that led to the nullification of the 2017 election.

‘The key areas that led to the nullification of the 2017 presidential election had been dealt with in 2022, the major one being opening the portal to allow anyone to download the elections result forms and do their own tabulation. That was a very positive move.”

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