Attorney General Githu Muigai and LSK ask the court to consider voters first when making its decision
Two friends of the court urge judges to ignore political intrigues and determine whether the election was fair and transparent.
Attorney General Githu Muigai on Tuesday asked the Supreme Court to close its ears to political intrigues and determine the presidential election petition based on law.
The AG, who was submitting as a friend of the court, argued that although political airs hang on the case filed by National Super Alliance (NASA) presidential candidate Raila Odinga, the seven judges ought to consider the voter first.
“This court must continue to resist an invitation to ignore black letter law. If fidelity to law means anything, it means respect to the law. Whenever the court is invited to the spirit of the Constitution, it’s being invited to decree political preference of a party,” he argued.
“Elections are not about politicians, elections are not about political parties, elections are about voters. You must put a voter at the centre of the election, it is his right,” he said.
The AG also argued that the important thing to the court is whether the three pillars of fairness, accountability and transparency were adhered to on August 8.
“It is not true that the Constitution can give answer whether an election was properly conducted. Parliament has the powers to make the regulations governing the law. A prudent lawyer will go to the principles and the statutes to find and answer about the question raised before the court,” the judges were told.
Prof Githu also argued that the electronic system adopted by the country was not 100 per cent fool proof and thus there is need to get back to the paper trail in order to ascertain who was validly elected.
He added: “There is a jurisprudence that has been adduced by a party that I do not accept. The question about the election of a President, the court will go to the Constitution and get a clear determination.”
He said the case filed by lobbyist Maina Kiai on the finality of the presidential election changed the way IEBC conducted the whole process.
According to the AG, IEBC Chairman Wafula Chebukati was only rendered a conveyor belt as he was only required to collate and declare what was handed to him.
“The Maina Kiai case changed the way we conduct the election. It was changed in a very radical way,” he argued.
He urged the court to stick to the precedent which it had set in other seven cases it had determined previously.
“I beseech you to do one thing, stabilise the law, and create continuity and certainty. You are being to abandon standards set in seven cases, you will throw the jurisprudence to a spin,” he argued.
Law Society of Kenya (LSK), also a friend of the court, argued that the law made in the august House was equally important in determining who the legitimate winner was or if the incumbent’s election would be invalidated.
The commission through lawyer Stephen Mwenesi and Omwanza Ombati argued that the court should put itself in the shoes of a voter when it is making its final decision.
The judges were told that the court should consider whether voting was done through a secret ballot, whether there was intimidation or not, whether anyone bribed or was bribed, whether the election was transparent and was conducted in an impartial manner.