The Independent Electoral and Boundaries Commission, its chairman Wafula Chebukati and President Uhuru Kenyatta have asked the Supreme Court to quash a petition by activist Okiya Omtatah seeking invalidation of the October 26th repeat presidential election.
In an affidavit filed at the Supreme Court on Thursday, the IEBC argues that the repeat election satisfied the threshold spelt out by the Constitution. The electoral commission also says that Omtatah's petition is an abuse of court process and that Supreme Court lacks jurisdiction to hear and determine the case.
“To the extent that the petition was filed on 27th October 2017 which was before the declaration of results of the fresh presidential election on 30th October, 2017, the petition lacks the requisite legal foundation and ought to be dismissed,” says IEBC.
On the matter of not conducting fresh nominations before the repeat poll, IEBC argues it was impractical since the law requires nominations of presidential candidates be done 60 days before the election.
In his petition, Omtata claims the fresh presidential election conducted 26th October was irregular, invalid, null and void before it was held, due to withdrawal of opposition leader Raila Odinga and his running mate Kalonzo Musyoka.
Omtatah also argues that the confession of chairman Wafula Chebukati one week to election that IEBC could not guarantee a credible poll renders results of the October 26th election “untrustworthy”. “Given that the public announcement by the 2nd respondent that he cannot guarantee free, fair and credible elections had not been withdrawn at the time the exercise on 26th October 2017 was held, makes the results he will announce untrustworthy,” argues Omtatah.
“The fresh Presidential Elections Implementation Team was being sabotaged and that was jeopardizing the IEBC ability and capacity to conduct free, fair and credible elections,” reads part of the petition.
In his response to the petition, President Uhuru argues that the validity of his re-election cannot be questioned by Omtatah as he moved to the court even before he was declared.
Through his lawyer Fred Ngatia, Uhuru also says the activist has not provided proof that Raila withdrew from the October 26 poll. “It is common knowledge that the name of Raila Odinga was on the ballot as a candidate in the fresh election,” Jubilee Party Director of Legal Affairs Marykaren Kigen says in their affidavit.
“The only inference that can be drawn from this is that IEBC did not receive any valid notice of withdrawal from Nasa”.
Deputy Chief Justice Philomena Mwilu is set to constitute a Supreme Court bench to hear the petition.