Narc Kenya party leader Martha Karua has moved to the East African Court of Justice censuring the electoral commission for a “shoddy” job and the Supreme Court for dismissing the 2022 presidential election petition that was challenging President William Ruto’s win.
In the petition, Ms Karua, who was the running mate of Azimio la Umoja presidential candidate Raila Odinga in the August 9 elections, has sustained her previous claim that unauthorized persons accessed the election systems of the polls agency and altered the election results.
She alleges Independent Electoral and Boundaries Commission (IEBC) ceded control of its systems to external service providers and as a result unauthorized persons gained access and deleted, altered and uploaded voter registration information and electoral results.
The former Cabinet Minister has also accused the Supreme Court’s Registrar of failing to render true results of the scrutiny of presidential election materials.
Among the questions she has raised against the Chief Justice Martha Koome-led apex court is lack of consistency in its judgments on presidential petitions, questioning whether the Supreme Court can rule one way in one election and another way in another election.
She wants the regional court to order the relevant organs of the Kenyan government to conduct investigations into the allegations of electoral irregularities and malpractices in the 2022 presidential polls.
She also wants the regional court to declare that determination of the presidential petition by the Kenya’s Supreme Court was not done in accordance with the provisions of the Constitution and the country laws.
In the petition filed jointly by Ms Karua and the Muslim for Human Rights (Muhuri), it is alleged that Supreme Court violated their rights and those of other citizens in how it handled the election dispute. Both were petitioners at the Supreme Court.
They allege that the Supreme Court refused to examine all the evidence presented before it, neglected to fully inquire into the technology applied and condoned IEBC’s cover-up in refusing to grant access to its technology critical to determining the matter fairly.
They allege that the actions of the Kenyan government through IEBC together with the Supreme Court curtailed the rights of citizens, registered voters and candidates.
The alleged violated rights include rights to freely access information in order to make informed electoral choices, rights to campaign, to vote or be voted for and the right for one’s vote to count.
They have raised eight violations against the Supreme Court, among them a claim that the Kenyan top judges failed or refused to ensure that all parties to the presidential petition were accorded a fair trial, with equality of arms.
“In particular, failing to ensure that the IEBC which is a public entity, provides the information necessary to vindicate the rights of the Applicants, other petitioners and citizens of Kenya fully and timeously, as the law required,” reads the petition.
It also allege that the Supreme Court failed to take cognizance of the evidence lodged or presented by Ms Karua, Muhuri and other petitioners against the election of Dr Ruto.
Another claim is that the apex court failed to provide for an adequate scrutiny of the elections and that the court’s Registry failed to render a true and comprehensive account of the results of the limited scrutiny that had been allowed.
They fault the Supreme Court for finding that the Chairperson of the IEBC Mr Wafula Chebukati conducted an election in an unlawful manner, on the one hand, yet failing to assign a legal consequence for the breach.
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“Authoritatively finding that the chairperson of IEBC conducted an election in an unlawful manner yet failing to assign a consequence to this. Deploying a standard of proof that is inappropriate in the circumstances,” the petition indicates.
They add that the Supreme Court failed to assert the applicable law on the proper standard of proof in presidential election petitions, failed to adhere to the court’s own set criteria in its 2017 judgment and treatment of all votes cast.
“The Supreme Court failed to assert the applicable law on the obligation of the IEBC, rather than of candidates, to ensure that the elections are free and fair and are free from violence, intimidation, improper influence or corruption; are conducted by an independent body, are transparent and are administered in an impartial, neutral, efficient, accurate and accountable manner,” says the petitioners.
Their case against the IEBC is that Commission failed to ensure that it had sufficient internal capacity to conduct the elections without undue reliance on external service providers over whom it had insufficient control.
They add that IEBC procured electoral materials, including the electoral technology, in violation of the country’s Constitution and applicable procurement laws and best practices.
“IEBC failed to properly register or recognize eligible voters and thereby disenfranchised them. IEBC failed to properly compile, maintain and update an accurate and clean voter’s register. It also failed and refused to publish the voter’s register in accordance with the strict timelines stipulated in law,” they state through lawyers Donald Omondi Deya and Esther Muigai-Mnaro.
Their joint Reference claims that IEBC failed to properly manage the August 2022 elections by ceding critical aspects of the process such as the electoral technology and results management to persons it had no control over.
In addition that the Wafula Chebukati-led commission failed to undertake a comprehensive audit of the register and failed to publish full results of the audit as provided by law.
Another allegation is that Mr Chebukati sidelined the other commissioners in the process of counting the presidential votes and declared results that had been rejected by the majority commissioners.
Apart from the affidavits they have filed in support of the petition, they say that they will call expert witnesses and adduce reports and statements of observers and the Election Observations Mission (EOMs) to the 2022 electoral cycle in Kenya.
They also intend to adduce formal reports of governmental and intergovernmental bodies, no-state actors and other documentary evidence.
They want the regional court to declare that presidential election and the results announced on August 15, 2022 was not done in accordance with the provisions of the electoral laws.
Resulting from the alleged non-compliance with the law and principles of governing elections, the results were vitiated.
They are also seeking a declaration that the judgment of the Supreme Court was not done in accordance with the provisions of the Constitution and laws and principles governing electoral dispute resolution.
“The applicants plead for an order directing the relevant organs of the Kenyan State to conduct prompt, efficient, impartial and professional investigations into all violations enumerated,” reads the petition.
In addition, they want an order that the government “makes full reparations, including paying (them) compensation and damages”.
“We are filing this Reference not only to enable the truth to come to light, but also so that we can secure guarantees of non-recurrence of failures in this sensitive area of elections in future,” they stated.