Kenya Kwanza MP, three voters sue to stop Supreme Court from declaring winner in presidential polls

South Mugirango MP Silvanus Osoro. He  filed a case challenging apex court powers to declare a Presidential polls winner in case of a recount and re-tally of votes.

Photo credit: Pool I Nation Media Group

Mugirango South MP Silvasnus Osoro and three voters have moved to court seeking an interpretation of the law on powers conferred to the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati on declaration of presidential election results.

In two separate suits filed at the High Court Constitutional & Human Rights Division in Milimani, Nairobi, the petitioners are also challenging the powers of the Supreme Court to declare winner in a Presidential election in case of a recount and retally of votes.

They want Section 80(4) of the Elections Act, which allows the Supreme Court to declare a presidential election winner in a disputed election if arithmetical errors are found, nullified and declared unconstitutional.

The said section of the law, titled powers of election court, gives the Supreme Court authority to declare the presidential poll winner and direct the electoral commission to issue a certificate of the election to a candidate upon recounting of the ballot papers cast.

It says that "an election court may by order direct the Commission to issue a certificate of election to a President, a Member of Parliament or a member of a county assembly if upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence."

Principle of independence

According to Mr Osoro, an ally of President-elect William Ruto, the said statutory provision is unconstitutional, null and void as it expressly contravenes Article 138(10) of the Constitution and also offends the principle of independence of the IEBC.

Article 138(10) of the Constitution provides that within seven days after the presidential election, the chairperson of the IEBC should declare the result of the election and deliver a written notification of the result to the Chief Justice and the incumbent President.

"It is against this backdrop that I contend that Parliament overstepped its mandate in clothing the Supreme Court (election court in presidential election dispute) with the power to direct IEBC to issue a particular candidate with the certificate of election," says Mr Osoro.

He argues that the election laws exclude the election of county governor from class of offices that an election court can direct the IEBC to issue a certificate of election upon recount and retallying of votes.

"In essence, the presidential election results being hotly contested and of a higher political voltage than the other elective positions, the Supreme Court should be extremely cautious in assuming jurisdiction under Section 80(4) of the Elections Act," says the MP.

According to him, there is a real threat of abrogation of constitutional rights if the losing candidate in a presidential election moves to the Supreme Court seeking to be declared as the president-elect by relying on the said section of the law.

"The Supreme Court sitting as an election court in presidential election dispute can only hold that the elections results are valid or invalid and no more. The framers of the Constitution did not intend that Parliament would legislate on disputes relating to presidential elections," says Mr Osoro.

He urges High Court to declare the statute, Section 80(4) of the Elections Act, unconstitutional 'to the extent that it accords the Supreme Court the power to declare a winner in the presidential election'.

In the other similar petition filed by voters Ashford Koome Mbogo, Michael Ochieng Asola and Eric Githinji, they want the said law nullified and a declaration that only the chairperson of the IEBC can declare a presidential candidate as having been validly elected president.

They also want a declaration that the Certificate of Election issued by the IEBC to Dr Ruto is legally valid unless and until the same is annulled by the Supreme Court.

The two petitions came a day after Azimio la Umoja party leader Raila Odinga and his running-mate Martha Karua filed a presidential election petition at the Supreme court seeking a recount and retally of the votes and a declaration that they were the winners of the polls.

Mr Odinga and Ms Karua are seeking 23 reliefs including an order for inspection of IEBC servers and scrutiny of the rejected and spoilt votes.

They also want an order for scrutiny and forensic audit of the Kiems kits, IEBC website and portal and the returns of presidential election including Forms 34A, 34B and 34C.

Eight other petitions were also filed at the Supreme Court by different individuals and members of the civil society and one the orders sought is a recount and retally of the votes.