Kenya’s Supreme Court received two petitions on Monday to overturn the result of last month’s presidential election, which was already a re-run poll ordered by the court after it annulled an earlier vote in August.
In a flurry of legal activity before the midnight deadline to challenge the October 26 vote, the Supreme Court also received a petition to declare opposition leader Raila Odinga guilty of electoral offences linked to his boycott of the re-run.
Kenyan President Uhuru Kenyatta won the election with 98 percent.
However, only 38.8 percent of registered voters turned out to vote, on a day marked by violent protests and chaos at polling stations in opposition strongholds.
A first petition was filed by former lawmaker and businessman John Harun Mwau, calling for the court to again annul a presidential election in the country.
The Supreme Court overturned an initial poll on August 8 due to “irregularities and illegalities” in a historical decision hailed as a chance to deepen Kenyan democracy, however the move led to crisis and acrimony that has left the nation bruised and divided.
Mwau contests the inclusion of a minor candidate in the presidential re-run who had been declared bankrupt and argues that the Independent Electoral and Boundaries Commission (IEBC) should have conducted fresh nominations ahead of the vote, according to court documents.
In a second petition, the chairman of the Kenyan chapter of the International commission of Jurists (ICJ) and director of Muslims for Human Rights Khelef Khalifa made the same plea.
The two argued that the IEBC and its chairman Wafula Chebukati had “so mismanaged the fresh election that what was conducted on 26 October 2017 cannot by any standards be deemed to have been an election … conducted in ‘strict conformity with the Constitution and the applicable law”.
The petition cites a series of events including the resignation of an IEBC commissioner just days before the vote who fled to the United States in fear for her life claiming the vote could not be credible.
It also mentions that just hours after this event, Chebukati himself gave a public statement saying he could not guarantee a free, fair and credible election.
The petition refers to the constitutional requirement that “an election shall be held in each constituency”, pointing out that voting was unable to take place in 25 constituencies hit by violence and opposition protests on election day.
The petitioners want the court to order what would be a third presidential election, a move that would likely prolong uncertainty that has hit the economy hard.
While the court last time took the unusual steps of invalidating an election based on irregularities without considering whether this affected the result of the election, it will face hurdles doing so again.
A contentious set of new election laws that were gazetted last week forbids any court from invalidating election results for non-compliance with any laws if this “did not substantially affect the result of the election.”
An urgent petition to block the October 26 election had been scheduled on the eve of the vote, however the Supreme Court was unable to muster a quorum to hear it, which the opposition blamed on interference.
The IEBC and Kenyatta were not the only ones targeted by petitions, the Institute for Democratic Governance asked the Supreme Court to declare Odinga and other leaders of his National Super Alliance (NASA) coalition guilty of electoral offences.
The NGO said “the respondents unlawfully, illegally, recklessly and with impunity, sought to subvert the democratic process by interfering with the fresh presidential elections.”
In its petition the group said the NASA leaders should have known their calls for there to be “no election” would incite their supporters to “cause violence and destroy property”.
The petition also blames the NASA leaders for attacks on IEBC officials in the run up to the vote.
After being declared the victor, Kenyatta conceded his victory was “likely to once again be subjected to a constitutional test through our courts”, adding he would submit to such a process “no matter its outcomes.”
Odinga vowed the election “must not stand”.
His coalition has formed a “resistance” wing which has called for economic boycotts of certain companies and has said it will hold protests and other forms of civil disobedience.