Dingake in Kenya to observe the Odinga petition case
Bame Piet | Tuesday August 29, 2017 18:00
The petition is to be observed by Trial Observation Mission headed by former Zambian Chief Justice, Ernest Sakala.
Other members of the mission are Martin Masiga from Uganda and Brian Penduka from Zimbabwe.
Speaking from Nairobi via email yesterday, Justice Dingake confirmed that the proceedings have commenced and that the court is expected to make a ruling on Friday.
“I am already in Nairobi. The Constitution obliges the Supreme Court to pronounce its position within 14 days of the petition. They should therefore pronounce their verdict on Friday the 1st of September,” he said.
According to a report by Capital FM, the observer mission of judges will also review the socio-political climate in the country prior to the petition and will attend all the hearings of the Presidential petition.
Observers will develop a comprehensive report on the whole process with the aim to contribute to a more professional, independent, impartial and accountable judiciary; a more independent legal profession; and a better adherence to the rule of law and standards concerning the resolution of electoral disputes.
The Raila Odinga movement has petitioned the court citing the Kenya Independent Electoral and Boundaries Commission, its chairperson, Wafula Chebukati and President, Uhuru Kenyatta.
The petition is challenging the outcome of the August 8 elections, which Kenyatta won.
In the petition filed two weeks ago, Odinga argues that the elections were not held under a conducive environment, were not fair, and that the use of Electronic Voting Machines compromised the integrity and credibility of the elections. The petitioners further argue that the sole and only purpose for which the Independent Electoral and Boundaries Commission was established was to give effect to the sovereignty and the exercise of the sovereign will of the people of Kenya.
“By this very premise, the 1st Respondent is not, cannot be and must never be an institution and law unto itself. It is for this reason that Article 88(5) of the Constitution categorically stipulates that the 1st Respondent “shall exercise its powers and perform its functions in accordance with [the] Constitution and national legislation.”
The petitioners further state that in the conduct and management of the Presidential Election, the Commission abdicated its role and duty to exercise, protect and safeguard the sovereign will of the people of Kenya.
“The petitioners aver that in the conduct of the Presidential election the first respondent so deliberately failed and/or neglected to act in accordance with the Constitution and national legislation, thereby subverting the sovereign will of the people.
“The national legislation and written laws must mean something and be given their legal effect. Otherwise, there is no point of having legal provisions if they will not be obeyed. Similarly, there is no point of holding elections if the law, procedure and regulations to govern their conduct will not be respected and adhered to.”
The petitioners argue in the 25-page petition that the Presidential election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner. “The nature and extent of the flaws and irregularities significantly affected the results to the extent that the first respondent cannot accurately and verifiably determine what results any of the candidates got.
“Instead of giving effect to the sovereign will of the Kenyan people, the first respondent delivered preconceived and predetermined computer-generated leaders,” he petition reads. The petitioners want the elections to be invalidated, as they did not comply with the Constitution or any written law.
“The petitioners contend that during the 2017 Presidential election, a number of critical factors, including the registration of voters affected the votes cast, their numbers and the final result of the Election.
One of these critical factors is the number of rejected votes that account for at least 2.6% of the total votes cast. In addition to other factors that affect the tally of the votes, this factor has an effect on the final result and outcome of the Presidential Election.”