By opting to file a petition challenging the re-election of President Uhuru Kenyatta at the eleventh hour, Nasa may have inadvertently exposed itself to dirty tactics by suspected agents of state or overzealous actors in the security docket.
Interviews with opposition lawyers who assembled the petition showed a series of tactics they were allegedly subjected to by forces determined to ensure they did not file it at the Supreme Court in time.
The lawyers, who sought anonymity for fear of reprisals from security organs, said the lorries hired to ferry the documents to the court on August 18 were caught up in a huge traffic jam between Nyayo National Stadium and Parliament buildings.
“At that point, we almost regretted the decision to take our evidence to the court at the last minute,” one of the lawyers, who insisted that such a jam was unusual in Nairobi at 10pm, said.
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The opposition insists there was every indication that the jam was artificially created to delay the filing of the petition before the midnight deadline, effectively killing the case.
“Getting to the City Centre was a feat in itself. We spent close to two hours to cover a distance one would ordinarily do in less than an hour, given it was past rush-hour,” a senior member of the Nasa legal team said.
It took the intervention of the security team attached to Mr Raila Odinga — the plaintiff in the case — to manoeuvre its way into town to present the documents to the court in time.
The petition was eventually filed at 11.42pm, just 18 minutes to the deadline.
And on Friday, two lawyers acting for Nasa in the petition — MPs Millie Odhiambo (Suba North) and Anthony Oluoch (Mathare) — were forced to use six boda bodas to reach town to deliver additional files to buttress their case.
They were rushing to beat the 1pm deadline set by Chief Justice David Maraga.
Before then, Nasa officials said they were being watched by intelligence officers.
Our sources said they were also monitored on a 24-hour basis by undercover police officers, reportedly detailed to kidnap or induce them to switch camp.
The history of Kenya’s politics is replete with cases of political competitors being kidnapped by their opponents’ agents on the eve of filing nomination papers to ensure they are locked out on technicality.
The decision to file the petition was as a result of a last-minute change of mind on the part of Mr Odinga who, during the campaigns, said he would not seek legal redress if he felt the Independent Electoral and Boundaries Commission would not have conducted the August 8 elections properly.
“We had said we would not go to court but changed with the attack on civil society and the determination to silence voices that could seek redress like AfriCOG and the Kenya Human Rights Commission,” the opposition chief would later explain.
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But while lawyers will be hogging all the limelight during hearing sessions that start today (Sunday), it is the researchers and clerical staff numbering about 900 — both for IEBC, Jubilee and Nasa — that have shouldered the bulk of the immense work.
For three and half days, they suspended sleep.
Researchers ploughed through thousands of pages to assemble their evidence or defence while others drafted and edited affidavits and other filings.
And it has also been brisk business for printers.
IEBC manager in charge of communications Andrew Limo admitted that it was not easy for staff.
“We have had to sacrifice family and personal engagements to focus on this.
“Coming after an extensive election, we had to re-summon our energies one more time since you realise this is intensive in terms of human and resources,” he said.
Jubilee Vice-Chairman David Murathe said the parallel tallying centre the party set up came in handy when assembling material to defend Mr Kenyatta’s victory in court.
“With the material in place, we have engaged top lawyers to execute the case,” Mr Murathe told the Sunday Nation.
Quietly, Jubilee and IEBC had been crossing their fingers that Mr Odinga stuck to his declaration not to file a petition against the presidential poll results.
Their fears were well grounded as has been demonstrated by the huge filings and what promises to be an epic legal battle that could see Mr Kenyatta’s win nullified and a fresh election held.
Before this, the government had through the National NGO coordination Board resorted to attacks on agencies that expressed plans of challenging Mr Kenyatta’s election victory.
The petition has almost brought government business to a halt, with the private sector equally taking a beating.
The verdict on Friday will therefore come as a relief, whether it takes the country back to the elections or validates Mr Kenyatta and Jubilee’s poll win.