Three options for Supreme Court in NASA petition

The National Super Alliance on Friday late evening filed their petition at the Supreme Court, setting the ground for a bruising legal duel that seeks to reverse President Uhuru Kenyatta’s victory in the August 8 election.

Uhuru was announced the winner last week on Friday, beating NASA leader Raila Odinga comfortably by 54 percent to 44 percent.

But Raila , in the presidential petition yesterday accused the Independent Electoral and Boundaries Commission of manipulating votes in favour of Uhuru and denying him the win.

The surprise move by NASA on Wednesday to petition the Presidential election results will now see the country wait for a minimum three weeks and a maximum 10 weeks to have a President in office substantively elected.

NASA had earlier indicated it would not move to court to challenge the Presidential results it maintained were computer generated.

The petition by the opposition outfit will be heard and determined within the next 14 days and can result in three scenarios: The seven-judge Bench under the leadership of Chief Justice David Maraga after hearing the parties may rule to uphold the announcement of Uhuru as the winner.

The judges can also order for a repeat of a fresh Presidential election or they can also order the re-tallying of the results. The decision to invalidate elections, legal experts warn, will spark off a Pandora’s box of petitions of other elective positions.

“If the petition succeeds, there is likelihood that any other petition that would be filed would rely on the decision of the Supreme Court,

if the facts would be the same, irregularities the same and then very many petitions will succeed,” city lawyer and political analyst Danstan Omari told the Star yesterday.

Uhuru would have been sworn in on August 29 – exactly the first Tuesday after the expiry of the 14th day after the declaration – had there been no election challenge.

But if the Supreme Court upholds his win, this would now pushes the inauguration party earliest on September 12. The maximum deadline to dispense the petition allowed by the law falls on September 1.

If the Supreme Court dismisses the petition and upholds the IEBC decision, then the law gives another seven days for the swearing-in, which falls on September 8.

The ceremony will however be held on September 12, being the first Tuesday after the expiry of the seventh day.

On Wednesday, hours before the NASA announcement, the Assumption of Office of the President Committee inspected Kasarani Stadium as part of its preparation for the now-postponed inauguration.

But in case the seven Supreme Court judges overturn the decision declaring Uhuru’s win, then the earliest the next President will enter office will be on November 28, 2017.

If, on September 1, the judges find the Presidential results invalid, then the IEBC will have 60 days to organise for another presidential election and this will see the country going to the polls to elect the President on November 1.

President Uhuru will effectively lose the President-elect title.

The Chebukati team will then have another seven days within which to declare results and a further 14 days’ period, after which the winner takes the oath of office.

In 2013, the Supreme Court ordered a recount of votes and scrutiny of some of the crucial forms before rendering its verdict that upheld Uhuru’s win. The court ordered scrutiny of Forms 34 from all the then 33,400 polling stations and all the Forms 36 used in the tallying of the Presidential results.

The court also directed re-tallying of the Presidential results in 22 polling stations using Forms 34 and 36, so as to determine the numbers of votes cast compared to number of registered voters.

On Friday afternoon, scores of NASA supporters camped outside the Supreme Court building, waiting for the filing of the petition. The placard-waving supporters waited patiently as NASA lawyers hurried to beat the Friday midnight deadline.

The Supreme Court Registry remained open even past working hours, to accommodate the petition.

“Uhuru must go! Uhuru must go!” they chanted.

Raila’s challenge of Uhuru’s election in 2013 was dismissed by a Bench chaired by the then Chief Justice, Willy Mutunga.

Although he accepted the outcome, Raila said he did not agree with the judges’ decision. Scores of anti-riot police were deployed outside the building, to keep watch.

On Wednesday, Raila said they would be moving to court to challenge the outcome. With the filing of the petition, Odinga has two days to serve respondents with the suit papers.

Respondents in the case, who include President-elect Uhuru Kenyatta, Deputy President-elect William Ruto, the Independent Electoral and Boundaries Commission and IEBC chairman Wafula Chebukati, will have four days to file responses and attempt to dismantle the allegations lodged by the opposition.

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