Key issues to determine Apex court verdict
As Kenyans wait patiently for the Supreme Court of Kenya’s verdict on the presidential petition, there will be key issues that will likely determine the outcome.
Chief Justice Martha Koome and her six colleagues were treated to a legal showdown pitting legal teams representing petitioners contesting the 2022 presidential polls.
The lawyers went head-to-head with those against the outcome and declaration of William Ruto as president-elect by Independent Electoral Boundaries Commission (IEBC) chairman Wafula Chebukati.
With that done and dusted the attention now shifts to the seven Supreme Court judges, as they pen down their judgment.
Back in 2017 Chief Justice, David Maraga’s historic ruling annulling President Uhuru Kenyatta’s election victory was grounded, not in proof of actual election rigging, but a finding of so many things wrong with the conduct of the polls that the result could not stand.
This year there is a probability that the case will be decided more on processes and in particular the split in the IEBC which exposed a critical public institution riven by partisan feuds.
The Supreme court led by Martha Koome had singled out the nine key issues for determination in the 2022 presidential election petition as follows:
Technology
Justice Martha Koome will be seeking to rule on whether the technology deployed by the Independent Electoral and Boundaries Commission (IEBC) for the conduct of August 9, 2022, met the standards of integrity, verifiability, security, and transparency to guarantee accurate and verifiable results.
The Apex court will also seek to determine whether there was interference in the uploading and transmission of polling station results from the polling stations to the IEBC public portal.
Postponement of gubernatorial elections
The Chief Justice alongside the other judges will also determine whether the postponement of gubernatorial elections in Kakamega and Mombasa counties and parliamentary polls in Kitui Rural, Kachileba, Rongai, and Pokot South constituencies and electoral wards in Nyaki West in North Imenti constituency and Kwa Njenga in Embakasi South Constituency resulted in voter suppression to the detriment to the petitioners in petition number E005 in 2022.
Discrepancies in the votes cast for president and other elective positions
Unexplained discrepancies between the votes cast for presidential candidates and other elective positions will also be a key issue that the apex court will seek to determine while giving its verdict.
Tallying
The Apex court will also have a huge task in trying to determine whether the IEBC led by Wafula Chebukati carried out the verification, tallying, and declaration of results per the provisions of articles 138 (3) C and 138 (10) of the Constitution.
The 50 per cent +1 threshold
The seven-judge bench is expected to determine whether President-Elect William Ruto attained 50 percent plus one vote of the vote’s case in accordance with article 138 (4) of the Constitution.
Irregularities and Illegalities that could have affected final presidential results
At 12 noon today the court will determine whether there were irregularities and illegalities of such magnitude as to affect the final results of the presidential election.
Similarity of forms
The judges will also determine whether the forms uploaded on the portal were similar to the physical documents submitted to the national tallying centre at the Bomas of Kenya by returning officers, alongside forms 34B that were used to tabulate results at the constituency level.
Tallying of votes and differences with other elective positions
On the conduct of the August 9th presidential election, the supreme court judges will be expected to determine if there was an unexplained difference between the number of votes garnered by the four presidential candidates and those received by candidates contesting for other five elective positions; 47 governors, senator and woman representative seats, national assembly member in the 290 constituencies and 1450 MCA slots.
Uploading of forms 34A to the IEBC portal
Closely tied to this, the judges will also rule on whether there were differences in forms uploaded to the IEBC portal by presiding officers in the polling stations, with copies of the results declaration forms given to agents of the four presidential candidates.
Should the judges find no merit in the petition, they will affirm Ruto’s election and set the stage for his swearing-in as the country’s fifth president on September 13.
Would they allow the petition, Ruto’s declaration as president-elect will be nullified and a repeat state house race conducted within 60 days.
