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NASA’s decision to go to the Supreme Court rekindles controversial 2013 dispute

The Opposition’s decision to challenge the presidential election outcome at the Supreme Court has rekindled memories of the controversial 2013 petition.

Immediately after the Supreme Court threw out a petition by the Coalition for Reforms and Democracy (CORD), Raila Odinga – then CORD’s presidential candidate – said he respected the verdict but disagreed with the judges’ findings.

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While changes at the Supreme Court that saw the entry of three new judges have altered the composition of the team that determined the 2013 controversial decision, attention now turns to the seven judges who will uphold or trash President Uhuru Kenyatta’s re-election.

Second chance

In 2013, then Chief Justice Willy Mutunga presided over the presidential petition, with justices Jackton Ojwang’, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Philip Tunoi. It was a six-judge bench after the then Deputy Chief Justice Nancy Barasa was suspended.

Out of the six, Mr Ojwang, Mr Ibrahim, Mr Wanjala and Ms Ndung’u will have a second chance to determine a presidential election petition.

The four have been joined by Chief Justice David Maraga, who will preside over the case, his deputy Philomena Mwilu and Justice Isaac Lenaola.

One of the contested decisions in the 2013 petition was the rejection of Raila’s 900-page affidavit, which detailed evidence of alleged rigging.

Former Law Society of Kenya (LSK) Chief Executive Officer Apollo Mboya believes the affidavit, had it been admitted, would have changed the Supreme Court’s reasoning in preparing its final verdict.

“The presidential election petition was undoubtedly controversial as many thought the Supreme Court judges made a big mistake. It would have been fair if they admitted the affidavit as it contained a huge chunk of evidence against electoral malpractices,” he said. The judges ruled that admitting the affidavit would have been unfair to other parties involved since CORD had introduced additional evidence outside the set timelines.

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After the ruling, Dr Mutunga faced the wrath of LSK, which accused him of presiding over the “unacceptable” decision. He, however, remained defiant saying he had no regrets over the decision.

The landmark ruling also landed former LSK chairman Eric Mutua in trouble, when he was summoned by the judges for criticising them and issuing statements that demeaned the court’s reputation. The judges let him off the hook.

The court’s decisions revolved around three petitions, which were consolidated, with CORD’s petition being the benchmark.

Raila claimed the election was not free and fair and the electoral agency inflated votes in favour of President Kenyatta and his deputy William Ruto, given that the system that was in place was not accurate, verifiable or transparent.

He further claimed there were anomalies from voter registration, transmission of results and tallying.

The former Prime Minister also claimed the Independent Electoral and Boundaries Commission (IEBC) declared results based on unsigned Form 36, which were allegedly multiplied.

IEBC also altered entry files, he added.

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The second petition was by Africa Centre for Open Governance (AfriCOG).

Although they did not directly challenge Uhuru’s election, the group was concerned about the process IEBC used to tally votes.

Results transmission

AfriCOG claimed failure by the commission to use electronic transmission of results as their primary data compounded the credibility of the process and contravened the Constitution and electoral laws.

The third petition, which questioned the validity of rejected votes tallied, was filed by Moses Kuria (now Gatundu South MP), Dennis Itumbi and Florence Sergon.

They argued that in calculating the percentage attributable to each presidential candidate, IEBC erroneously used a formula that included the rejected votes.

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