Preparations for a possible post-election legal battle at the Supreme Court are taking shape in the boardrooms of the Azimio la Umoja One Kenya Coalition and Kenya Kwanza Alliance presidential campaign secretariats, the Nation has learnt.
Besides assembling teams of lawyers, the campaigns are also gathering potential evidence that could come in handy should the outcome of the August 9 presidential election be contested at the Supreme Court.
In the presidential debate, which was boycotted by Azimio candidate Raila Odinga, Deputy President William Ruto said that the next phase of the election battle could be a petition to challenge the outcome after August 9.
“I will accept the election results. Accepting the election outcome includes exploring possibilities such as going to court. I will go to court if possible. And if I win the election, I am also prepared to govern this country,” said Mr Ruto.
For Mr Odinga, he has often given a condition to accepting the outcome of the election: it has to be free and fair. It is an indication that he is also preparing to head to the Supreme Court.
Meanwhile, at the Supreme Court, judges have been trained in anticipation that there will be a challenge to the outcome of the August 9 presidential election. Other preparations for holding the trial are also ongoing, including procurement of tents that will accommodate the media and the public who might turn up at the Supreme Court to follow the proceedings should one be filed.
IEBC advocates sensitisation workshop
At the same time, the Independent Electoral and Boundaries Commission (IEBC) recently conducted a two-day sensitisation workshop for its advocates from 124 pre-qualified law firms in readiness for the General Election. One of the focus areas for the workshop was the “development of advocates guidelines and strategy for handling election petitions”, which also signifies the preparation by the commission for a possible petition.
“The purpose of the training is to fully equip lawyers in readiness for possible election petitions that are likely to be filed. I am aware that the accusations from both the Azimio and Kenya Kwanza about IEBC's preparedness cannot hold water but we live in a highly litigious society. Even though (IEBC chairman Wafula) Chebukati and his team have done an excellent job to prepare for the General Election, petitions are likely to be filed,” says lawyer Peter Wanyama.
Mr Wanyama is among the lawyers who attended the IEBC workshop. He is in the legal team for IEBC which is preparing for a possible presidential election petition.
For the parties, the preparation for a Supreme Court battle has been ongoing for some time, according to Dr Linda Musumba, a legal expert with the Ruto presidential campaign secretariat.
“I think everybody is preparing. Any responsible party and a responsible legal team for a party would be readying itself. That is just so that in the eventuality. We hope for a peaceful transition but then should there be a need, it would be foolhardy to not be ready,” she said.
Dr Musumba says she cannot get into details of the legal team they have assembled but UDA secretary-general Veronica Maina in December 2021 unveiled 50 young lawyers, dubbed ‘UDA Lawyers Brigade’ to defend the DP and the party’s agenda. The brigade is led by lawyer Georgiadis Majimbo and has former Law Society of Kenya President Nelson Havi, who is also running for the Westlands parliamentary seat on a UDA ticket, as a member.
Preparing for two scenarios
“We are preparing for both scenarios where we defend our win or in the event of a loss, we must be in a position to point out any irregularities and firm up the evidence before challenging the election. We have people who we have specifically deployed in all the 290 constituencies to look out for such and collect evidence,” said Mr Majimbo.
UDA wrote to IEBC informing them that they will not be forwarding a list of agents as a party. Instead, each candidate will forward their lists.
Members of the brigade have now been included in the deputy president’s list of agents, said Mr Majimbo.
On Mr Odinga’s side, perhaps his preparation for a possible Supreme Court battle can be seen in the kind of agents he has appointed. Mr Odinga has appointed all lawyers to be his chief agents nationally, in all the 47 counties and the 290 constituencies, according to his long-term legal adviser Paul Mwangi. The “army or lawyers” is headed by Mr Mwangi. The national chief agent is lawyer Saitabao Kanchory.
The Supreme Court in 2013 threw out the petition that had been brought by Mr Odinga and his then running mate, Kalonzo Musyoka, against then TNA candidate Uhuru Kenyatta and running mate Ruto. In 2017, the Supreme Court by majority nullified President Kenyatta’s re-election citing “irregularities and illegalities” committed by IEBC.
“Elections are the surest way through which the people express their sovereignty. Our constitution is founded upon the immutable principle of the sovereign will of the people. …Therefore, whether it be about numbers, whether it be about laws, whether it’s about processes, an election must at the end of the day, be a true reflection of the will of the people, as decreed by the constitution, through its hallowed principles of transparency, credibility, verifiability, accountability, accuracy and efficiency,” the majority said in the judgment.
The judges then ordered a repeat election. The outcome of the repeat election was also unsuccessfully challenged by a group of civil society players. It will be the fourth challenge to a presidential election outcome if this year’s poll is also petitioned.
At both presidential campaign secretariats, the legal teams have files of letters they have written to IEBC and other institutions. At Ruto’s campaign secretariat are complaints forwarded to IEBC over the involvement of Cabinet secretaries in campaigns for Mr Odinga, use of state resources and violence at their rallies for which they wanted the commission to punish the offenders. The DP’s campaign also wrote to IEBC on the alleged deletion of voters from the register of voters and illegal transfer of voters.
At the Raila presidential campaign secretariat, the same evidence-gathering is taking place. The secretariat has written to the commission on numerous issues, including the availability of a manual register as a backup, demand that representatives of presidential candidates travel to Greece to monitor the printing of presidential ballot papers, appointment and deployment of county and constituency returning officers, and representatives to supervise data entry to Kiems kits, among others.
“We have been on a warpath with IEBC ever since because we want everything about this election to meet the constitutional requirement. And we have had significant victories,” says Mr Mwangi.
According to Mr Mwangi, they are doing all these because of “what we went through in the petition in 2017 and we know how serious this thing can be”.
Not taking any chances
“So we are not taking any chances. We know that as much as we protect ourselves against our rivals, we must equally protect ourselves from IEBC because the commission is the one that cost us an election the last time. So we are protecting ourselves to make sure UDA cannot steal our votes and also that after all this work, you don’t have our win annulled because IEBC has misconducted itself. Those are the fears,” said Mr Mwangi.
For both camps, the files of correspondences and complaints to IEBC and other institutions involved in the forthcoming elections could form a crucial body of evidence should the outcome of the presidential election be challenged.
“No one is saying it is definitely going to be like this or like that but by learning from history, we should be prepared and ready should this become the eventuality,” said Dr Musumba. In the first petition of 2017, the majority judgment set two grounds upon which an election can be nullified: one, illegalities like bribery, undue influence and intimidation and; two irregularities committed in the transmission and announcing of results. These illegalities and irregularities, the judges determine, must either violate the principles of the Constitution or affect the results of the election.