Kenyans will on Friday be eagerly awaiting the verdict of the Supreme Court on whether President Uhuru Kenyatta’s win in the August 8 elections was valid.
Although they did not indicate what time they will deliver their decision, the justices, led by Chief Justice David Maraga, said they will notify lawyers and the public on the time.
But Mr Maraga, as a Seventh-day Adventist adherent and also president of the court, will ensure that the decision is made before sunset, when Sabbath starts.
Independent Electoral and Boundaries Commission chairman Wafula Chebukati declared President Kenyatta winner of the election on August 11, announcing that the incumbent had garnered 8,223,163 against his closest rival Raila Odinga’s 6,822,812.
The judges can dismiss the petition altogether, meaning that President Kenyatta would be deemed duly elected, or they can declare the poll invalid, sending Kenyans back to the ballot in two months.
The rejected votes will play a key role in deciding whether President Kenyatta met the threshold of 50 per cent plus one vote.
However, Mr Odinga, of the National Super Alliance, contests the win, arguing that the poll was marred by massive irregularities and inconsistencies.
He says there were “grave inaccuracies” that were either as a result of negligence by, or the willful intention of, the IEBC.
The Nasa leader argues that the poll agency adopted “a consistent pattern of increasing” President Kenyatta’s figures but reducing his votes.
Among the issues the seven judges will be grappling with are whether there were irregularities in the poll and, if so, whether they were massive enough to annul the results.
In his submissions in court, Attorney-General Githu Muigai said that “the threshold required to disturb the election is such that the evidence has to disclose profound irregularities in the management of the electoral process”.
Whereas President Kenyatta, through lawyers Ahmednasir Abdullahi and Fred Ngatia, says that a voter should not be punished for the mistakes of poll officials, Mr Odinga argues that the process should have been “clean”.
Mr Abdullahi said that in 99 per cent of the cases, the court can only invalidate a presidential election on the transgressions of the voter.
He added that were the petition to succeed, the court would have to find that the 15 million Kenyans who voted on August 8 do not count.
The issue of rejected votes was brought back to court once again as Mr Odinga pleaded with the court to revisit the matter. During the 2013 election petition, it was argued that a ballot paper once rejected, or declared void by law, is incapable of expressing any preference for or against a candidate.
The rejected vote is, therefore, invalid and cannot be introduced into the percentage-vote tallying process.
Arguing for the dismissal of this prayer, Mr Ngatia said nothing had changed to convince the court to overturn the 2013 judgment.
“Rejected votes cannot be taken into account in the final tally. It is a point we argued in 2013 and nothing has changed to make us depart from it. There should be uniformity in the judgments of the court,” Mr Ngatia said.
Another matter the judges will be grappling with is the different sets of results and disparities in votes between presidential, gubernatorial and senatorial seats
Mr Odinga, through his lawyers, submitted in court that the IEBC released five sets of rejected votes, casting doubts on the validity of the final outcome of the presidential result.
Although the electoral body termed the numbers “mere statistics”, Mr Otiende Amollo, for Nasa, said it cannot be true, arguing that the results in all the platforms should be similar.
The judges will also be deciding whether to depart from the 2013 decision on the interpretation of the Constitution.
Nasa also claimed that scrutiny of the results forms revealed irregularities, with a number of them not bearing the commission’s stamp or watermarks, or were unsigned or missing serial marks.
In the 2013 presidential petition, the Supreme Court dismissed the case, saying the evidence brought before them failed to prove the alleged irregularities.
With barely two days to rule on poll petition, judges have 70,000 pages of evidence to wade through.