Uhuru and IEBC fight back against Raila election claims

President-elect Uhuru Kenyatta and the electoral commission on Thursday defended themselves against claims that the State House race was not free and fair.

Their lawyers denied allegations by Prime Minister Raila Odinga that the contest was skewed in favour of Mr Kenyatta and Deputy President-elect William Ruto.

Mr Kenyatta’s lawyer played a video of ODM officials and Cabinet ministers calling on the IEBC to abandon the biometric voter register and revert to the manual register to facilitate the General Election.

The clip showed top ODM officials and Cabinet ministers, among them Mr Henry Kosgey, Mr Otieno Kajwang’ and Mr Ababu Namwamba, criticising delays in procuring the biometric voter kits and calling for the system to be abandoned.

The issues of the voters register and the electronic system of managing the transmission of results have been some of the major points of contention during the petition hearings that ended on Thursday night.

Mr Fred Ngatia, for Mr Kenyatta, said it was inconceivable that the PM did not know about the existence of a manual register.

Similarly, the IEBC denied claims that the elections were bungled. There was no proof that Mr Odinga’s votes were added to Mr Kenyatta’s final tally, Mr Paul Nyamodi, one of the lawyers representing the commission, said.

He said the IEBC had no obligation to use the electronic voter system, which he said was just an administrative exercise.

He said invalidating the presidential results would result in a constitutional crisis.

“We agree there was an amendment to the final register, but this was within the IEBC mandate and all political parties were informed,” Mr Nyamodi stated.

“Yes there was an amendment to the register after February 18 as a result of complaints received after inspection of the register but it was within the mandate of IEBC. 36,236 people not on the official register were those without biometric information.”

He denied claims that Mr Odinga’s agents were locked out of the national tallying centre at the Bomas of Kenya, saying that they were sent out after they started a fracas.

He also said there were no electoral malpractices as several independent bodies had confirmed the elections as free, fair and transparent.

Attorney-General Githu Muigai said the nullification of Mr Kenyatta’s election could result in fresh polls for all the six elective posts.

Backed by Deputy President-elect William Ruto’s lawyer, Mr Katwa Kigen, he said the court should consider the consequences of its decision as the law gave two different meanings of fresh polls.

Prof Muigai that said if the election of Mr Kenyatta was declared void and a fresh election ordered, the polls could either be held up to the primary level or for a limited number of positions.

Fresh elections should then be held within 60 days — and this could require a new voters register, he said as he gave his submission as a friend of the court.

The AG said the judges should look at the threshold of evidence in determining whether the election of Mr Kenyatta was invalid or not. The court should further look at the nature of reliefs it can grant.

But Mr Justice Mohamed Ibrahim disagreed with Mr Muigai’s claim that the court could not hear witnesses.

“While the Constitution gives us limited time to complete such important hearing, we could also hear witnesses if we want,” he said.

In his submissions, Mr Ngatia, for Mr Kenyatta on Thursday fought off claims that his election had been marred with irregularities.

He said there was nothing wrong with his election as Kenya’s fourth President, saying, this was an indication of the will of the majority of Kenyans.

“This will of the people ought to prevail at all times,” Mr Ngatia told the court. “In a democracy, there are always winners and losers. It is now time for Kenyans to get on with their daily businesses.”

He said elections are tiresome and obstructive.

“It is not fair, on these accounts, that the elections should be repeated. One should not win a political office through a court process. It must be won in an election and the courts should have no role in such contests.”

Mr Ngatia also poked holes at most of the evidence presented by Mr Odinga’s lawyers challenging his victory, pointing out that even foreign observers including the Commonwealth, the African and European unions gave the process a “clean bill of health”.

With regard to electronic identification of voters as well as transmission of results after an election, Mr Ngatia said the law has no preference whether it is manual or electronic.

“There’s no preferred method of identification of a voter or transmission of results. In fact, it has always been that the entire electoral process in the country has always been manual,” he said.

Procurement of the BVR kits was spearheaded by Mr Odinga, who is now up in arms over their failure, Mr Ngatia said.

He, together with his colleague Mr Njoroge Regeru, said the disputed voters register had been used in the other five elections for senate, governor, MPs, women representative and county assembly representatives and wondered why the outcome of these polls had not been contested.

Mr Regeru is representing three voters allied to Jubilee who have filed a case seeking to determine if spoilt votes should be included in deciding the final tally, and he scoffed at claims that most of the 36,236 voters, who had been classified as having no biometrics, came from Bomet, Meru and Kiambu, saying in fact they were spread throughout the country.

And he gave an example of Likoni constituency which had 2,243 voters without biometrics compared to Kiambu which had 1,869.

Late in the evening, Mr Odinga’s lawyer, Mr Ochieng’ Oduol, completed his final submission on why the results of the presidential election should be annulled.

He asked the Supreme Court to adhere to the law and make its judgment without fear or favour.

Mr Oduol said the court should determine whether Mr Kenyatta garnered the 50 per cent plus one of the votes cast as declared by IEBC.

“The jurisdiction to examine and declare is catered (for) in this court,” Mr Ochieng’ said, adding that the court should tell whether Mr Kenyatta was validly declared as President. 

Mr Oduol differed with claims that annulling the results of the presidential elections would result in fresh elections for all the six elective positions, saying, the Supreme Court only deals with presidential polls.

“We have discharged both legal and evidential burden. The issues show the first respondent (IEBC) did not execute its mandate as per the constitution,” Mr Oduol said.

He denied that the economy will go down and that there would be constitutional crisis if Mr Kenyatta’s election were annulled.

Reported by Lucas Barasa, Paul Ogemba and Dave Opiyo