Raila Odinga’s did not withdraw from the October 26 re-run but merely declared his intention to do so, the Supreme Court has said.
The Opposition chief successfully petitioned Uhuru Kenyatta’s August 8 victory at the court but pulled out of the repeat claiming the winner had been pre-determined. He also said IEBC ignored his irreducible minimums.
Following his boycott, elections primarily did not take place in Siaya, Kisumu, Migori and Homa Bay counties.
But the top court, whose judges gave detailed explanations for upholding Uhuru’s victory, said the NASA candidate’s boycott announcement was one of “mere intention” to withdraw.
They said he did not formally withdraw from the vote.
“Raila’s withdrawal was not submitted within the prescribed time-frame hence it was of no effect,” said judge Smokin Wanjala.
The judges noted that two petitions against the President’s win were heard together but that each part was allowed to submit issues separately.
The petitions were by chairman Njonjo Mue (International Commission of Jurists) and Khelef Khalifa (Muslims for Human Rights).
The court said the primary issues included failure by the electoral commission to conduct fresh nominations, withdrawal by the NASA flag bearer and failure by voters in 25 constituencies to take part in the election.
The court said judges unanimously upheld Uhuru’s win on November 20 as the cases lacked merit.
They said allegations such as voter intimidation by people dressed in army regalia were dismissed as there was no evidence.
“Petitioners didn’t have proof that Jubilee Women’s Brigade act of dressing in military regalia intimidated voters and that those who were intimidated would have been NASA voters who did not take part in the election in some parts of the country,” Wanjala said.
On nominations, the judge said IEBC was not at fault for excluding some parties as there was no need for a fresh exercise.
Regarding use of government resources to advertise achievements with 60 to the elections, he said evidence was not submitted.
“On October 19, the High Court gave a clear determination and forbade the government from advertising using public resources. But petitioners didn’t prove that Uhuru was in contempt.”
He further said none of them was intimidated by the President’s statements after the decision to annul the August 8 result so there was no interference with the final ruling.
Justice Njoki Ndung’u said the move to validate an election cannot be addressed by the lack of elections in areas that experienced violence.
She said IEBC did everything in its powers to ensure election preparedness in all parts of the country.
“The validity of an election cannot be challenged on the basis of whether it was held in all 290 constituencies because violence hindered. There was politically instigated violence while others boycotted the election,” she said.
“It was not in our view for counsel Julie Soweto to argue that it didn’t matter who caused the violence.”
Justice Isaac Lenaola said IEBC did no wrong in including all others candidates in the election as it was following court orders.
The other judges are Chief Justice David Maraga, Deputy CJ Philomena Mwilu, Jackton Ojwang’ and Mohamed Ibrahim, who did not attend all hearings after falling sick.