High Court Judges George Odunga, Joel Ngugi and John Mativo at Milimani law court during the hearing of ballot tender case. (Photo: George Njunge)
The National Super Alliance (NASA) is leaving nothing to chance on the elections, with yet two other suits before the High Court two days to the D-day.
The Opposition’s high staked political battle with Jubilee in the corridors of justice is to ensure the ruling party does not take the advantage of being in power to rig the elections.
NASA on Friday filed a case to stop the State from deploying the military to maintain peace during and after the Tuesday polls.
The Africa Centre for Open Governance (AfriCOG) also filed a suit to have NASA allowed to adopt poling stations and limit the police to mere spectators unless they are given instructions by a presiding officer.
Both cases will be heard and determined on Monday.
NASA claims the military will join the police to maintain calm on election day and its adopt-a-polling-station programme was frustrated by acting Interior CS Fred Matiang’i’s announcement that no one should remain in the polling station after voting.
In its case, NASA claims the Government hatched a plan to deploy disciplined forces in areas perceived to be its strongholds to intimidate voters.
Through lawyer Jackson Awele, the alliance argues that there is no way the military can leave the barracks on August 8 to maintain peace throughout the country as the National Assembly has not given them the green light.
“The petitioner is otherwise apprehensive that unless the orders sought are granted and in any effect before the next General Election, the first and second respondents (Defence and Interior ministries) shall set a dangerous precedent of internal deployment or inclusion of the Kenya Defence Forces,” said Awele.
NASA’s case is pegged on a multi-agency training programme held on June 9 at the Embakasi Garrison, Nairobi County. The training dubbed ‘operation dumisha utulivu’ was meant to prepare law enforcement agencies for any violent disturbances during and after the polls.
It trained officers from the National Police Service, the National Intelligence Service, the Kenya Wildlife Service, the National Youth Service, the Kenya Forestry Service and the Kenya Prisons to enhance co-operation and tame civil unrest during the election period.
The idea was to ensure there will be no blood shed as it were in the 2007/08 election chaos.
In the AfriCOG’s case, the lobby also wants the court to declare that the Communication Authority of Kenya (CA) cannot switch off a media house for tallying and relaying the results.
“Pending the hearing of the case, the third respondent be restrained from ordering the members of the National Police Service to remove persons not accredited by first respondent 400 metres from the polling station,” the court papers read.
A total of 21 cases touching on the forthcoming election have so far been filed.
The first case was filed by NASA’s predecessor CORD to block Parliament from amending the current elections law.
Then followed the case on Al-Ghurair ballot printing tender, the voters register audit and the political campaigns financing law. Out of the 21, only two cases are still on, the one on the military and on adopt-a-polling-station programme.
Jubilee Party had its way on the use of a manual back-up system in the event the integrated elections management system fails. On Friday, the Court of Appeal dismissed the case that had been filed by NASA to vouch for a purely electronic system to identify voters and transmit results.
Court of Appeal judges Roslyn Nambuye, Martha Koome and David Musinga threw out the case, but said they will give their reasons on September 22.
“Having considered the submissions by the counsels and the authorities and bearing in mind the ramifications of our decisions, as they relate to the forthcoming elections…, we hereby declare there is no basis of setting aside the High Court judgement as prayed by the appellant (NASA),” Justice Nambuye read the judgement.
The court further ordered that the IEBC must ensure that a printed register is only used as a last resort.
“The contents of the first respondent’s internal memo dated July 27, 2017 shall be adhered to by all parties in application of regulation 69 and 83,” the court ruled.
The memo explains that when a voter enters a polling station, he or she is required to produce an identification card. It is then they are identified using a biometric system. If the system fails, then the polling clerk will use alphanumeric (ID number search) in the presence of the presiding officer.
The last step will be use of the printed voter register, but this will only be done after approval by the commission.
In the case, the Opposition argued that the High Court erred when it established that there was sufficient public participation and that a purely electronic system will be a disaster to the country in the event it fails.