For the first time in Kenya’s history, a petition challenging the results of a presidential election will go to a full hearing at the Supreme Court on Wednesday. This election saw Uhuru Muigai Kenyatta, who faces trial at the International Criminal Court (ICC), declared winner.
As the hearing gets underway Wednesday, a court-ordered scrutiny of key elections forms from the Kenya’s 33,400 polling stations will have already gone on for one day as will the re-tallying of the results from 22 polling stations. The Supreme Court announced this decision on Monday, which it made on its own motion, a major development in itself. The decision was announced in the afternoon of the first day of a pre-trial conference to help the court and different legal teams prepare for hearings.
Two of the petitioners have made the authenticity of the elections forms filled at the polling stations an issue in their demands that the results of the March 4 election be set aside. They have also claimed that in some polling stations the number of people who voted was higher than those registered to vote at those locations. In order to verify this, the Supreme Court ordered the re-tallying at the 22 polling stations.
Previous court challenges to presidential results filed in 1992 and 1997 have never gone to full hearing because judges have dismissed them at the preliminary stages on one technicality or another. As the Supreme Court marks another first, the proceedings will be broadcast live on most television channels. It is also being streamed online on the websites of two television stations as well as the judiciary’s own website.
The second day of the pre-trial conference, Tuesday, however, was disappointing for the petitioners, compared to the first day. The Supreme Court declined to allow two applications by lawyers for Prime Minister Raila Amolo Odinga, who is challenging Kenyatta’s election.
One application was for a forensic audit of the Independent Electoral and Boundaries Commission’s (IEBC) information technology system. Mohammed Ibrahim, who read the court’s decision on behalf of his fellow judges, said they made the decision because Odinga’s lawyers did not indicate in their application who should conduct such an audit and the time needed for something like that would extend beyond the Saturday deadline the court has to meet to deliver a judgement on the petitions before it.
The other application was for the court to grant leave for Odinga’s lawyers to formally file an 839-page bundle of affidavits and other evidence. Odinga’s lawyers, who had already filed the bundle at the registry and served all parties, argued that this huge addition to what they had already filed on March 16 was necessitated by what the IEBC and its chairman filed in response to Odinga’s petition. Lawyers for the IEBC, Kenyatta, and Ruto objected to the new material, arguing that it changed the previously filed petition and amounted to a new petition being filed. Phillip Tunoi, reading the decision of his fellow judges, said the court ordered the material expunged from court records because Odinga’s lawyers had not sought leave to file it from the court. Tunoi also said that the court’s time was limited by the constitution and it would difficult for the respondents to file responses and the judges consider the material by the constitutionally-determined deadline of Saturday.
Three petitions were filed at the Supreme Court by the March 16 deadline to seek a ruling on matters related to the presidential election. One petition was filed by members of Kenyatta’s campaign who are asking the court to determine whether rejected votes should be considered when declaring a winner of the presidential election. Another petition was filed by Gladwell Gathoni Otieno of the Africa Center for Open Governance and Zahid Rajan. The third one was filed by Odinga. The last two petitions are asking the court to overturn the presidential result and also rule on the credibility of the entire electoral process. On Monday, the court ordered the petitions be consolidated into one to allow the judges better manage the hearing, which will run into Thursday.
Kenya’s two and a half year-old constitution requires any dispute around a presidential election be resolved by the Supreme Court within 14 days of a winner being declared, and no swearing-in ceremony can be held until then. The old constitution did not set any timelines for resolving electoral disputes nor did it designate a specific court to handle such disputes. Also under the former constitution, the declared winner could be sworn-in as a petition was in process.