AG Githu Muigai sides with Kenyatta in Raila Petition
The Attorney General Githu Muigai who was appearing in the case as a friend of court strongly dissuaded supreme court from departing from its earlier findings in election petitions.
He also urged the seven judge bench to put first the interest of voter as opposed to that of political parties or politicians.
“My Lords elections are not about politicians nor political parties but voters. First recognize the sovereignty of voter.
It is his election, it is his will, his sovereignty so a voter must be kept in mind when asked to upset election,” said the AG.
The AG urged the judges not to rely on constitution solely but instead read it together with other statutes relating to election.
“Constitution isn’t election statute but it contains the principles observed in creating electoral system. My Lords constitution cannot yield an answer on whether election was conducted properly,” said the AG.
Prof Muigai asked the court to resist an invitation to avoid clear black letter law clear binding precedent because if fidelity to law means anything.
In his view to determine whether the election is free and fair the constitution will look at neutrality accountability verifiability and transparency.
Independent presidential candidate Prof Michael Wainaina has asked the Supreme court to dismiss the petition challenging the re election of president Uhuru Kenyatta saying the polls were conducted within the law .
Wainana, through lawyer Harrison Kinyanjui while arguing before the court faulted NASA leader of failing to table enough evidence to support his claims of tempering.
He said there was no evidence of hacking as earlier suggested by Raila and further blamed the leader for failing to rebut his claims.
“My lords , where is the evidence of hacking, where is the evidence if intimidation that can provide for invalidation of election” Kinyanjui further asked.
The lawyer told court that Raila and his chief agent Musalia Mudavadi had committed a serious error by failing to file affidavits in court to support their claims or rebut them.
He said the petitioner failed to demonstrate if there were any voters whose right to vote was denied.
The lawyer submitted that Raila only want the Supreme Court to lower the threshold set by the 2013 decision in admitting evidence, and that would be wrong in the absence of evidence.
While closing their case , the NASA legal team dismissed arguments by IEBC and Uhuru saying all they had failed to respond to the real issues they had raised in the petition.
The lawyers said the IEBC failed to explain if Forms were generated , scanned and transmitted to the tally center as required by the law by the time of declaration of the final results.
The court was told to hold as a breach of law , the decision by IEBC Chairman Wafula Chebukati of announcing and declaring polls results despite not having received Forms from 11,000 polling stations .
“They have just created an imaginary case and proceeded to answer it ….of all the 8 lawyers who have submitted, they have taken the petitioner and Kenyans voters in contempt “ Otiende Amollo said
Orengo urged the judges to endorse their arguments and find that the elections were not free and fair.
“If a proper scrutiny is carried out as the court has ordered, and all the evidence is brought to court as it has been ordered, this court will find that the elections as conducted by IEBC were shambolic” Orengo said.
“We have a definite question ,it is not about mid- wifely, its not a baby but a legal process” added Orengo.