1,133 is not just a number

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Kenya’s Supreme Court judges have a choice between upholding the beacon they raised on 1st September or apologising for doing the right thing

18 November 2017 - 10:11

Advocate Julie Soweto, the lead lawyer in the Njonjo Mue-Khelef Khalifa presidential election petition, gave a passionate speech when she introduced her case at the Supreme Court. We reproduce an edited version of the text below.

Julie Soweto:

My Lords, this is a petition for Kenyans by Kenyans. This is how my clients wish to be introduced: The First Petitioner is a devout Christian Kikuyu from Thika, in the President’s backyard; and the Second Petitioner is a devout Muslim from the Coast.

In their own words, one has little formal education; the other an advocate and a Rhodes Scholar from Oxford. What unites the two petitioners is their passion for human rights and defence of the Constitution.

My team is made up of a multi-ethnic group of passionate young volunteers who represent the new Kenya against the old Kenya. I am assisted by my learned friends and colleagues – Waikwa Wanyoike, Donald Deya, Eunice Lumallas, Haron Ndubi, Jane Odiya, Kelly Malenya, Sandra Oyombe, Edigah Kavulavu, Bemih Kanyonge, Opollo Okello and Silas Kamanza.

Today, as a country, we stand at the ledge of a cauldron of uncertainty. This Court is our last barrier before we plunge into the abyss.

Two presidential elections in as many months later, and Kenya is still at a crossroads. The choice is stark – between being another sorry apology for a republic, and enduring the sacrifices that purify this nation into the true democracy its people truly yearn it to be.

Now, as in August 2017, the Supreme Court is the last dam holding back a veritable flood of uncertainty that would engulf the entire nation were there to be any questions that our country is indeed governed by the Constitution and the law.

This Court’s judgment on September 1, 2017 held out hope for this country to keep together and stoked the embers of justice.

Honourable Judges, our struggles for dignity and personhood are framed by the Constitution. When any forces, however prodigious, challenge our resolve to be governed as free women and men, we are all called upon to defend the Constitution.

This Court is part of the immunity the Constitution designed for itself in times of crisis such as we face. It is among the last defences against any and all assaults on the Constitution by all interests, however benign or benevolent their disguises may appear.

The Constitution is the voice of the people – 68 per cent of the voting population at the time of its passage – affirmed it as the sovereign will of Kenya. Elections occur in the context of a wider will of the people. What does it matter that there is a little fudging here and a bit of cheating there?

The will of the people says we shall hold elections by: a) universal suffrage; b) that those elections shall be free, fair and credible; c) that they shall be conducted by an independent electoral management body that is impartial and neutral. These are not mere words. They are the will of the people of Kenya.

We only beseech you to do your duty to respect, uphold and defend the Constitution.

Whatever decision this Court makes will decide whether we move forward as a great nation, guided by first and foremost our fear of God; our fidelity to the Constitution, and by our strict adherence to the rule of law. It is only our fidelity to these principles that can and will give us a framework for orderly and objective relationships between citizens in a country.

The judgment of this Court will decide whether to uphold the beacon it raised on 01 September 2017, or apologise for doing the right thing.

We, the people, are beseeching this Court to act again in defence of the law and the Constitution. If we are to summarise our grievance in this petition, it is this, IEBC and the Chairperson of the IEBC simply do not seem to understand the Constitution and the law. Either they do not understand it, or they believe they can get away with disregarding the law.

The starting point is September 1, 2017 because that is where this Court gave its direction: Go and conduct a fresh election in strict compliance with the Constitution and the applicable law.

We are going to demonstrate that IEBC and the chairperson simply did not do this

If the IEBC believes it can get away with disregarding the law, one can only imagine which other institutions or public officials will want to follow suit.

The Respondents will try to present a legal dichotomy to the Court and the country, a false choice between holding an election within 60 days and holding an election that meets constitutional muster.

We submit that there is no contradiction in the dictates of the Constitution. Whenever there is any question that calls for interpretation of the Constitution or the law, the true North is always in Article 10 of the Constitution, which contains national values and principles that bind all State organs, State officers, public officers and all officers whenever they apply or interpret the Constitution.

These national values [Article 10 (2)] include patriotism, national unity, sharing and devolution of power, the rule of law and democracy and participation of the people. They also encompass human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised. They additionally include good governance, integrity, transparency and accountability; and sustainable development.

Whatever decisions the IEBC and the chairperson take or make, they must always ask themselves, how does this meet the aspirations of Kenyans?

Our petition rests on five limbs: the absence of universal suffrage, the environment of violence and intimidation; the independence of the electoral management body; its dishonesty and duplicity; and its failure to follow the law and its own procedures.

Our Constitution requires that for a person to be elected President, she/he should enjoy the support of at least 50 per cent of the votes cast, and at least 25 per cent in more than half of the counties. That requirement assumes that elections are held in a normative context with the participation of as many voting adults as possible. The purpose of these constitutional provisions should be obvious: It is no wonder that the Constitution also provides that the election of the President must take place in each of the 290 constituencies. A total of 3,635 polling stations out of the total 40,883 did not record any votes. This represents 1,770,475 Kenyans.

When we say each vote counts, did the vote of these Kenyans count? It was the constitutional duty and responsibility of the IEBC to ensure that their vote counts.

It will be argued that other persons affected the ability of the IEBC to ensure universal suffrage. That is not true. And even if it were, it was still IEBC’s responsibility to address that issue. What did IEBC do? Nothing!

Did IEBC only realise on Election Day that it could not meet the principle of universal suffrage? No. It chose to go ahead with an election that was flawed. IEBC is squarely to blame. Failing to appreciate the environment and take remedial action is incompetence. Either that, or simple disregard for the law.

Where the election excludes the participation of over half of the voting population, it cannot be said to meet constitutional muster.

Secondly, that the election was marred by violence and intimidation is not in dispute. The IEBC chairman’s public address on the Status of the Fresh Presidential Election on October 27, 2017 confirms as much. It matters not who was to blame. It is sufficient that there was violence and intimidation; and it marred the election environment.

Reports by various reputable organisations, including the government’s own Kenya National Commission on Human Rights, recorded loss of life and harm to limb. People died, hundreds were injured, scores more were sexually violated. The threat to life and limb was clear and present. It was not possible to vote in 3,635 polling stations out of the total 40,883.

Thirdly, this Court cannot avoid the reality before its eyes, which is that the IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent. Their pleadings are either similar or complementary. The affidavit of the IEBC chairman, is proof that the commission was never independent but was working overtime to please political players such as the National Super Alliance and the Jubilee Party. The internal incoherence of the commission is proof of its discordance, brought to light most dramatically by the resignation of Commissioner Roselyn Akombe.

Part of IEBC’s dysfunction is right before the Court in the form of the affidavits sworn by the vice chair on her own behalf and on behalf of five other commissioners excluding the chair. What is to be understood by this?

IEBC is wholly to blame for this state of affairs. Their own internal environment precipitated the climate of violence and intimidation.

Dr Akombe feared for her life. The Chairperson’s address on October 18, 2017 acknowledged her as “one of our brightest”. His statement show and confirm his awareness that this was no environment to hold a free, fair and credible election. This is the National Returning Officer making such statements a week to the election. Can it then be argued that his own statement did not have an effect on the conduct of the electorate? For one side, definitely, he must have affirmed and reinforced their convictions that the election was a sham. Could this damage be undone in seven days?

That damage had led to the withdrawal of a candidate, which precipitated boycotts and attendant consequences. The IEBC is squarely to blame for this state of affairs. This is the chairperson confirming the internal environment of the IEBC was discordant. At this point the damage is already done. It is too late. He confirmed that there were attempts to interfere with the commission and that there was partisanship within it.

What could he and should he have done? He could have come to this Court and presented his challenges. He came to clarify what to do about wrong numbers! How to do add numbers. If he had read and applied the Constitution holistically he could similarly have come to seek help. He did not.

Fourth, the IEBC decided what law to follow and what law to ignore. It chose to rely on the Supreme Court decision in 2013 where it provided that only the President-elect in a nullified election and the successful petitioner should contest the fresh election; but it did not want to obey the direction that one candidate abandoning the race would automatically require a new election. The IEBC printed ballot papers with Shakhalaga Khwa Jirongo’s name on the list of candidates on October 19, and then gazetted his candidature on October 24, 2017. It declared that no nominations would be conducted, when it could have declared the candidates as having been nominated by dint of the Supreme Court’s nullification of the August 8, 2017 election. It held consultations with a variety of stakeholders but neglected to inform political parties about the gazettement of returning officers.

Finally, the IEBC has been unable to tell a consistent story about the elections. The number of registered voters is a moving target. The voter turnout in the fresh presidential election changed at least three times. Voter turnout is the true north of any credible election result, and it is locked down at the close of polling. The Commission’s behaviour around the voter turnout suggests that it was fluid.

There are doubts about the validity of the Register of Voters. In June, the IEBC’s gazetted total number of registered voters was 19,611,423.

When the IEBC chairperson announced the presidential election results (including registered voters) on August 11, 2017, the total number of registered voters was 19,631,796. The IEBC’s Form 34C from August 2017 shows yet another total:  19,611,457. When the IEBC chairperson announced that the October election would be delayed in 27 constituencies, he said that 1,770,475 registered voters were affected by this delay. Using the gazetted register to calculate the total number of affected voters in these 27 constituencies, results in 1,776,460 affected voters. Together, these inconsistencies indicate a fluctuating Register.

Article 81 of the Constitution says the electoral system shall comply with certain principles, including freedom of citizens to exercise their political rights; universal suffrage free and fair elections, among others.

These are the constitutional imperatives. Failure to comply with any one of them automatically renders an election void. We refer to them as vitiating elements

They are also indivisible. An election must comply with all the principles. Not one or two or either. For an election to be valid, all elements must be present.

 

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