NAIROBI, Kenya, Aug 8 — The electoral commission will mount a nationwide General Election on Tuesday setting in motion key timelines on declaration of election outcomes, including the presidential vote, and the 14-day timeframe within which the Supreme Court is to certify the result should any party file a contest.
The August 9 election, despite having the least number of presidential contenders since the re-introduction of multi-party politics, has been billed as a high-stakes poll with two top contenders — Kenya Kwanza’s William Ruto and Azimio’s Raila Odinga — emerging as clear frontrunners.
The two other candidates in the race — Agano Party’s David Mwaure and Roots Party’s George Wajackoyah — have hardly managed to poll beyond 1 per cent in most opinion polls which have projected the proportion of undecided voters to be as high as 5 per cent with another 5 per cent of likely voters said to be withholding their preferences.
Under Article 138 (10) of the Constitution, the Independent Electoral and Boundaries Commission (IEBC) has seven days, from the date of the General Election, to declare the outcome of the presidential election.
In addition to declaring the outcome, IEBC Chairperson Wafula Chebukati is obligated to “deliver a written notification of the result to the Chief Justice and the incumbent President” in line with Article 138 (10) (b).
Given the constitutional timelines, IEBC will have until Monday, August 15, to declare the presidential election result paving way for any aggrieved party to file a presidential election petition within seven days.
In the absence of a petition, the President Elect would be inaugurated on August 30 being the first Tuesday following the fourteenth day after the declaration of presidential election results in line with Article 141 (2) (a).
Where the court dismisses the petition, the swearing in of the President-Elect is to take place on the seventh day after the decision under Article 141 (2) (b). In the event the outcome of the election is rendered invalid, a fresh election is to be held within sixty days.
The seven-day window for filing a presidential election petition is set out under Article 140 of the Constitution and Supreme Court (Presidential Election Petition) Rules 2017, whose revision in June 2022 to firmly prohibit commentaries touching on matters before the court sparked a protest from the Law Society of Kenya (LSK).
This could imply the country’s top court would be seized of a suit challenging the outcome of Tuesday’s presidential Election by August 22.
Thereafter, the petitioner will be required to serve respondents with 24 hours (August 23), under Rule 10 of the Court, with responses expected to be dully filed within four days (August 27) under Rule 11.
The petitioner would then have another 24 hours to file their rejoinder (August 28) [Rule 11A] with another 24-hour window (August 29) provided for interlocutory applications under Rule 17(2).
The court will then proceed to receive responses to interlocutory applications within 24 hours (August 30) under Rule 17(3) with third parties and amicus curiae required to file responses to the petition within a day (August 31).
The seven-judge bench comprising Chief Justice Martha Koome (President), Deputy Chief Justice Philomena Mwilu (Deputy President), Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko would hold its pre-trial conference by August 30 in line with Rule 14 which requires the court to hold the session within eight days from the date a petition is filed.
The pre-trial conference will set the stage for the commencement of the hearing of the petition under Rule 18 during which parties will highlight their submissions before the court retreats to make a determination.
In case of an August 22 filing, the court would render its decision by September 5 being 14 days from the date the petition is filed (Rule 23).
Although court timelines have remained unchanged, the contention on public commentaries on petitions filed at the Supreme Court could emerge as a key issue during the hearing of the presidential petition.
Both the LSK and the Supreme Court remained silent on the progress of bar-bench talks agreed upon in May to iron out differences on revised court rules gagging litigants from commenting on petitions.
When she emerged from a meeting with the LSK leadership at the Supreme Court on May 26, Koome appointed Supreme Court Judge Lenaola will spearhead bar-bench talks with LSK to look into concerns raised over revised court rules gagging litigants.
Koome, in a May 24 gazette notice, asserted that litigants and lawyers in particular “shall refrain from expressing their opinion on merit, demerit or predict the outcome of the petition in any manner that would prejudice or impede Court proceedings, until a judgement is delivered.”
With an initial meeting slated for June 2, Koome who doubles up as the President of Supreme Court however insisted nothing in law bars the Supreme Court Rules Committee from making and gazzeting its rules of procedure, suggesting the apex court had a free hand to review its rules.
“The constitution allows the Supreme Court to make their own rules and even in the Supreme Court Act. There has been a very active committee that deals with the rules of the Supreme Court,” Koome said.
LSK President Eric Theuri however insisted on the need to find a compromise.
“We should be able to find a way forward because when the Judiciary and LSK are consulting we are both brothers and sisters and we serve at the table of Justice. We should be able to come to a compromise,” Theuri noted.
Media commentaries on election petitions have been a thorny issue in election litigation.
While rendering its verdict of the Building Bridges Initiative (BBI) appeal in March, the court singled out public commentaries by lawyers saying they amounted to intimidation, aimed at influencing and tainting the court’s image.
Lawyers Ahmednasir Abdullahi, Nelson Havi and Esther Ang’awa were among the lawyers faulted for expressing their opinions on social media.
“In the course of writing this judgment, the court observed with concern some commentaries carried out in the social media by some counsel, some of whom are appearing in this matter,” Koome said.
Focus will also be on politicians who have fiercely criticized court decisions in the past with President Uhuru Kenyatta once terming the growing independence of courts as a threat to the nation’s stability.
In one of the hardest hitting public outburst against the court during the 58th Madaraka Day celebrations held in Kisumu on June 1, 2021, Kenyatta said the judiciary had “stretched our democratic boundaries to the limit.”
“It has bent the will of the people; but it has not broken it,” President Kenyatta remarked while making references to two rulings; the September 2017 Supreme Court ruling nullifying his election, and the May 13, 2021, judgment by the Constitutional Court declaring BBI Constitution Amendment Bill unlawful.
