The Supreme Court of Kenya on Friday nullified the re-election of Uhuru Kenyatta as president of Kenya upholding the petitions of his closest challenger Raila Odinga and ordered a new vote in 60 days.
The Court by majority -Chief Justice David Maraga, deputy Philomena Mwilu, Judges Smokin Wanjala, and Isaac Lenaola ruled that the August Presidential elections contained “irregularities and illegalities”.
“The declaration of Kenyatta’s win is invalid, null and void,” ruled Chief Justice David Maraga. However, “The First Respondent – Independent Electoral and Boundaries Commission (IEBC) failed, neglected or refused to conduct the Presidential election in a manner consistent with the dictates of the constitution and Elections Act.”
In the ruling, Justice Jackton Ojwang’ and Njoki Ndung’u dissented against the majority decision.
Ndung’u said the election was conducted in accordance with constitution, while Ojwang’ said the petitioner did not have enough evidence.
“It is worth noting that NASA did not challenge results of polling stations. In any election, there must be challenges and there were challenges but none of them occurred deliberately and in bad faith,” she said.
“I respectfully disagree with the opinion of the majority. Expect my full judgement within 21 days,” said Justice Ndung’u.
According to Ojwang, “Only general attributions of impropriety have been made.” “I would dismiss the entire petition as it was devoid of the requisite requirements. There is no iota of evidence to invalidate the will of the Kenyan people.”
IEBC had declared Uhuru, the Jubilee candidate winner of the presidential vote after he garnered 8,203,290 (54.27 per cent) votes against Mr Raila’s 6,762, 224 (44.74 per cent).
Reacting to the ruling NASA flag bearer Raila Odinga said it’s a historic day for Kenya saying the ruling sets a precedent in Africa.
“This is a very historic day not just for Kenya, but for Africa as a whole.” “For the first time in history of African democratisation a ruling has been made by a court nullifying irregular elections for the president. I want to thank the judges for doing this for posterity of people of Kenya,” he said.
He however, said the opposition has no faith in IEBC which is expected to organize a fresh Presidential election. “We have no faith in the electoral commission as currently constituted,” Raila said.
“They have committed criminal acts. Most of them actually belong in jail and therefore we are going to ask prosecution for all the electoral commission officials who have committed this monstrous crime against the people of Kenya.”
Wiper leader Kalonzo Musyoka, who is a NASA co-principal said he was happy, but noted that the IEBC must be punished.
“I am happy to be a Kenyan today. We will have to look deeply into the conduct of IEBC. We do not have faith that they are capable of conducting a free and fair elections,” he said.
Siaya senator James Orengo said IEBC should not participate in the polls adding that, “impunity must be punished not again in Kenya.”
On the other hand, Ahmednassir Abdulahi, uhuru’s lawyer told the court that, “My lord it’s obvious, and I’m not afraid to say, that this is a very political decision you have made this morning but we will live with the consequences.”
Uhuru – I disagree with it
Uhuru Kenyatta addressing the nation from State House, Nairobi said he ‘disagreed with the Supreme Court ruling.’
“I personally disagree with the Supreme Court’s ruling. I disagree with it, but respect it,” said Uhuru. “The Court has made its decision, but I respect. The fault is not yours (voters),” he added.
Uhuru used his address to the nation to call for peace and respect of the law as his party prepares to go back to the campaign trail.
“My primary message is peace, let us be people of peace.” “Your neighbour shall be your neighbour regardless of what has happened … regardless of their political affiliations… tribe….colour or race, let there be peace.”
The Independent Electoral and Boundaries Commission (IEBC) chair Wafula Chebukati told the media that the court’s ruling only faulted them on the transmission of the results, “There were no aspersions on the voting. The sovereign will of the people was respected.”
Chebukati said they ‘intend to change their internal process and personnel as they prepare for the repeat presidential elections. Chebukati further, called upon the Director of Public Prosecution to investigate and prosecute all those who allegedly affected the integrity of the elections.
The Supreme Court based its ruling on three issues: whether the 2017 presidential election was conducted as per the constitution and the laws relating to the Elections Act, whether there were irregularities and illegalities around the transmission of the elections results and the the impact on the elections integrity and what consequential orders should the court grant.
Election petitions were instituted in the 1992 and 1997 elections. In 1992, Kenneth Matiba who had run as the FORD Asili presidential candidate, petitioned Moi’s election, but the case was struck down because he had not personally signed the petition; his advocate had signed it for him.
In 1997, Kibaki’s petition against Moi was also dismissed on the grounds that Moi was not personally served with the petition.
In 2002, there was no petition at the presidential election as the loser conceded defeat.
After the 2007 elections, 38 petitions were filed against members of the tenth parliament disputing parliamentary elections. Four petitions were dismissed.
In 2013, 188 petitions were filed challenging the results or the process of the election, with 24 challenging the election of County Governors; 13 against Senators, 70 against Members of the National Assembly; 9 against County Women Representatives; 67 against County Assembly Representatives and 5 against County Assembly Speakers.
Unlike in 2007, the 2013 general elections were the first under the new constitution’s dispensation, a fact that had a significant effect on the manner through which elections were to be conducted and how disputes arising therein were to be mitigated.
Among the 2013 petitions, 3 challenged the results of the Presidential Elections were filed at the Supreme Court.