How lawyers swayed Supreme Court to dismiss Raila case
Senior Counsel Fred Ngatia who led President-elect William Ruto’s defence team at the Supreme Court during the presidential petition hearing.
Senior Counsel Fred Ngatia led William Ruto’s defence team and started off by saying that the problem with elections is not how they are conducted but that some people have failed to “inculcate the culture of accepting defeat”.
He pleaded with the court to uphold Dr Ruto’s victory, submitting that asking Kenyans to go for fresh elections might lead to a constitutional crisis.
This he attributed to claims Mr Raila Odinga has repeatedly made that he will not participate in fresh polls under Independent Electoral and Boundaries (IEBC) Chairman Wafula Chebukati.
“It is time for finality and stability. In doing so, Madam Chief Justice, you will be sending another message to the political class – that this country does not belong to them. This country belongs to all of us,” he said.
Mr Ngatia said the petitioners were unable to prove claims of infiltration or hijacking of forms 34A and replacing them with fresh ones that favour Dr Ruto. Prof Kithure Kindiki who was Dr Ruto’s chief agent during the August 9 General Election, claimed that the chaos at Bomas of Kenya just before Mr Chebukati declared Dr Ruto the winner was meant to interfere or stall the process. The lawyer said Kenya Kwanza Alliance made a complaint to the police over the chaos but no one has been arrested or questioned over the matter.
‘Fairest election’
Former Attorney General Githu Muigai led the team that defended IEBC and Mr Chebukati. He said all observers and came up with one conclusion; “that this was the fairest election”.
Prof Muigai admitted that the election was not perfect but the few mistakes made by IEBC officials could not be reason enough to interfere with the final outcome. He said there was a concerted effort to ensure that the process at the National Tallying Centre came to an end without a declaration.
“So the sanctimonious self-righteous pompous pontification of the so-called four commissioners are an afterthought,” he said of the four IEBC commissioners who disowned the final outcome.
“As we sit here, there are no less than three governors, there are no less than four senators, and four MPs elected under this election. It is none of my duties to direct this court what questions to ask. But if I may, are they happy with their own elections? If they are, how is it that this election [presidential] is irredeemably flawed?” he posed.
An open election
Senior Counsel Kamau Karori was also in the team that defended IEBC and argued that the electoral body and its chairperson was being vilified and publicly criticised for conducting an open election.
“The decision as to who will be the leader of this country is made at the polling station. If the votes you got are not enough, the problem is with the people who you did not persuade to vote for you. You cannot foment chaos. You cannot foment trouble and use it to come to court,” he said.
Another IEBC lawyer who helped thrash claims by the petitioners in the case was Mahat Somane. He lawyer dismissed claims that the IEBC systems were infiltrated by foreigners including one identified as Jose Carmago. He explained that the forms had been photographed over an envelope bearing Carmago’s name, which had borne a physical register of voters printed by his firm Smartmatic.
“I invite this court to ask the question of whether the 50 per cent plus 1 vote threshold was met and to that question, Your Ladyship, the late Justice Antonin Scalia’s answer would be ‘Get over it, it’s over!’,” and to the petitioner, “I think the simple answer to that would be, get over it,” he said.
Process matters
Siaya governor James Orengo, the lead lawyer for Azimio La Umoja One Kenya Coalition presidential candidate Raila Odinga, insisted that process matters, saying, it doesn’t matter how many votes one garners, it cannot be an election if one becomes the winner through falsification of Forms 34A.
“However good the outcome is. If there were infractions against the Constitution—because the constitution says how we should conduct an election—it doesn’t matter,” he said.
Ms Julie Soweto for Mr Odinga maintaining that foreigners interfered with the elections.
She said Forms 34A were intercepted, manipulated and uploaded afresh into the IEBC portal. Senior Counsel Philip Murgor claimed the election was decided before the final tally. Mr Willis Otieno for Khelef Khalifa accused Mr Chebukati of deliberately ignoring the law during the entire process. Senior Counsel Zehrabanu Janmohammed for John Njoroge argued that the framers of the Constitution did not envision a situation where some commissioners were left out of the tallying and verification process.
Non-existent voters
Busia Senator-elect Okiya Omtatah claimed more than 500,000 non-existent voters voted.
Mr Paul Nyamodi for Youth Advocacy Africa accused Mr Chebukati of arrogating to himself the role of national returning officer, when such a position is non-existent.
Senior Counsel George Oraro represented Attorney General Kihara Kariuki as a respondent in the case and defended members of the National Security Council Committee, dismissing claims that they tried to interfere with the declaration of the results.
