RAILA: SUPREME COURT RULING WAS UNFAIR

Prime Minister Raila Odinga has criticised the decision by the Supreme Court to uphold the election of Uhuru Kenya as Kenya’s fourth president. Raila said the decision by the county’s highest court was unpopular, as he dismissed it.

 “Supreme Court ishindwe (May the Supreme Court be defeated,” he said. The premier said the decision by the top court was tantamount to the persecution of Jesus Christ.

“The decision is like the persecution of Jesus Christ that occurred over 2000 years ago. Like Jesus, I am still alive,” said the premier, when he addressed crowds in Kondele area, Kisumu on Friday. He said the Supreme Court, under its President Willy Mutunga, made its decision during Easter, on the same period Jesus was persecuted, died and rose. Raila said he would continue with the fight for democracy, despite losing the presidency. He urged Kenyans to continue to fight for justice and democracy, adding that he would spearhead this fight.

“When the cooking stick breaks, it does not mean the process of preparing meals should stop,” he said

Carrying a black Bible and dressed in a checked blue shirt, the premier said Kenyans had been let down by last week decision.

“Kenyan waited anxiously for the ruling. However, they were betrayed with the court’s ruling that was intended to kill his political career,” said Raila, amid chants from the crowd.

“We presented adequate evidence to the Supreme but it was expunged without any consideration,” said a visibly angry Raila.

Earlier, while addressing youth in Jua Kali area, he was presented with a Bible and urged to swear as a president. However, he held it up and said ‘Praise God!’ Uhuru, 51, is set to be sworn in as president on Tuesday, at an elaborate ceremony to be held at Moi Sport Centre Kasarani.

Among foreign dignitaries expected to attend the function is Ugandan President Yoweri Museveni. He is set to be the only guest who will speak apart from outgoing President Kibaki and Uhuru. Last Saturday, the Supreme ruled that Uhuru and his running William Ruto were validly elected after garnering 50.07 per cent in the final tally by the Independent Electoral and Boundaries Commission (IEBC). The judges, a ruling read by Mutunga, dismissed two petitions challenging Uhuru’s election, including one filed by Raila, who obtained 43.7 per cent in the election held on March 4.

Soon after the judgment, the PM said he had accepted the verdict but did not entirely agree with the some of its findings. This is owing to numerous anomalies Coalition for Reforms and Democracy (CORD) presented to court. On Friday, Raila visited several places in the lakeside town and opened a hotel owned by National Assembly member for Gem Constituency Jakoyo Midiwo.

On Thursday, Raila said CORD would stand as the main Opposition party in Parliament to keep Uhuru’s Government in check. He accused the Jubilee Coalition of plotting to weaken the Opposition by seeking post-election alliances with small parties. Among the parties Jubilee has formed alliances with include Kanu, New Ford-Kenya and Peoples Democratic Party.

 

Courtesy: Standard Digital

 

 

KIBAKI NEVER USED HOTLINE

When Chief Justice Willy Mutunga took up office in June 2011, he was promptly notified of the existence of a red telephone placed on top his office desk. At first glance, he thought the telephone was just like any other. But this was not the case. The person showing him round the office had information that startled him. 
The little red telephone was a direct line to State House and would only ring when the President wanted to issue instructions to him.
Said the CJ: “The person who showed me the hotline, pointed at President Kibaki’s photograph hung on the wall and told me ‘hii simu ni ya wenyewe’ (this phone has its owners).” As members of the Judiciary, led by Dr Mutunga, hosted a farewell luncheon for President Kibaki, the CJ revealed that the hotline never rang even once since he took up the office.
“I congratulate you Mr President for not picking up that telephone regardless of how you felt about the way matters were being handle at the Judiciary,” said Dr Mutunga.
He went on: “This is because of the cordial relationship between the Judiciary and the Executive. This relationship has never been one of instructing one another but pulling together when national duty demands.” The supreme court judges gave the President a golfing set comprising a bag, golf clubs and a tie.  Dr Mutunga said more than once, the Judiciary made several decisions that were not so favourable to the government and praised President Kibaki for accepting them.
“On these occasions, you felt that being the statesman, with the ability to see that there was democracy in the country, was more important than engaging in unnecessary contest on who is right and wrong,” he said. The CJ said it was unusual for any head of State to see their power questioned as happened in the events that preceded his appointment to office.
“It is equally not common for a president not to take offence when he is reminded by a court to carry out a constitutional obligation such as happened with the gazetting of the National Lands Commission.”
He said the cordial relationship cultivated between the three arms of government had led to increased budget allocations for the Judiciary. The institution received Sh16 billion from the exchequer. Judiciary Registrar Gladys Shollei noted that the last time a sitting president walked in the corridors of the Courts was in 1969. President Kibaki and others at the luncheon – Attorney General Githu Muigai, Justice Minister Eugene Wamalwa and former Speaker Kenneth Marende – heaped praise on the Judiciary, saying it had played a critical role in the country’s development. They lauded Dr Mutunga for spearheading judicial reforms.
“Since taking office, the team at the Judiciary has proactively instituted measures to enhance service delivery and the administration of justice. It is my prayer that you will continue leading this important arm of government with diligence, dedication, and determination,” said President Kibaki. He also congratulated the six Supreme Court judges for handling well the presidential election petition challenging the outcome of the March 4 General Election.
“I congratulate you for handling all parties with utmost respect, adhering to the constitutional timelines set for hearing and determining petitions, and for maintaining your independence and professionalism. I am certain that the confidence the people of Kenya had placed on you has been affirmed." He expressed delight that their verdict had been accepted by Kenyans, who also maintained peace.
“The ultimate winner was the people of Kenya. Indeed, those aggrieved by the outcome of an election have the right to be heard in our courts. In giving them an avenue to be heard and letting the respondents adequate time to reply, you helped instill confidence in our judicial system,” President Kibaki said.
“The open, transparent and timely manner, in which you dealt with the issues, sends a clear message that through hard work and accountability the large case backlog in our judicial system can be dealt with.
“I trust that the rest of the Judiciary will learn from the Supreme Court whose members, have set high standards and raised the bar in our corridors of justice.”

Courtesy: Nation Digital

THE JUDICIARY BIDS KIBAKI FAREWELL

Members of the Judiciary have bid outgoing President Mwai Kibaki goodbye in a Farewell Luncheon held at the Supreme Court. Present at the Function were Chief Justice Willy Mutunga, Attorney General Githu Muigai, Justice Minister Eugene Wamalwa alongside other distinguished Judiciary officials. CJ Mutunga thanked Kibaki for his support of the Judiciary adding that as President, he (Kibaki) did not interfere with the Judiciary.
Addressing the function, President Kibaki lauded the Judiciary for the large strides they have made in reforming the Justice system. “In the past few years, Kenyans have witnessed the reform of our Judiciary. Since taking office, the team at the Judiciary has proactively instituted measures to enhance service delivery and the administration of justice, “said Kibaki.
Highlighting the conduct of the Supreme Court during the presidential petition process, Kibaki commended the six-judge-bench for the professionalism they exhibited.  “I congratulate you for handling all parties with utmost respect, adhering to the constitutional timelines set for hearing and determining petitions, and for maintaining your independence and professionalism,” he said.
He urged other members of the Judiciary to borrow from the conduct of the Supreme Court. Concluding his address, Kibaki asked the Judiciary to partner with the incoming administration. Other officials speaking at the function praised Kibaki for his service to the nation and they wished him well.

Mwai Kibaki's speech
http://www.youtube.com/watch?v=BBb4DR8skws

 Dr. Willy Mutunga Speech
http://www.youtube.com/watch?v=J0fCVPa5-eM&feature=player_embedded

Jomo Kenyatta Documentary

http://www.youtube.com/watch?v=Twvtuxz-XPA

Jomo Kenyatta was born Kamau Wa Ngengi at Ng'enda village, Gatundu Division, Kiambu in 1889. He was the son of Muigai and Wambui.In 1896 his father died and Wambui was inherited by Muigai's younger brother Ngengi.That is the union through which James Muigai, Kamau's half-brother was born. Kamau's mother later returned to her parents where she died. Kamau moved from Ng'enda for Muthiga to live with his grandfather Kingu wa Magana who was a fortune teller and medicine man. He took interest in Agikuyu culture and customs and used to assist his grandfather in the practice of medicine.

In 1909,Kamau joined Church of Scotland Mission, Thogoto, where he obtained elementary education and carpentry training. In 1912 he finished elementary school and became an apprentice carpenter. In 1913 he was circumcised at Nyogara stream near Thogoto Mission to become member of Kihiu Mwigi/Mebengi age group.

In 1914,he was baptized a Christian and given the name John Peter which he changed to Johnstone. He later changed his name to Jomo and during his later years was known as Jomo Kenyatta. During World War 1,when the British government was forcefully conscripting Africans into the army, Kenyatta took refuge in Narok where he worked as a clerk to an Asian trader. After the war, he served as a storekeeper to a European firm and this time, he began wearing his beaded belt Kinyatta.

He married Grace Wahu in 1920, with whom they had two children, Peter Muigai and Margaret Wambui. He worked in the Nairobi City Council water department between 1921-26 on a salary of about Kenya shillings 250.00 per month. Though he owned a shamba (farm) and a house at Dagoretti, he preferred to live closer to town at Kilimani in a hut and cycled home during weekends. He took interest in the political activities of the Kikuyu Central Association leaders James Beauttah and Joseph Kang'ethe. By 1926, he was the secretary of KCA. He was also chosen to represent the Kikuyu land problems before the Hilton Young Commission in Nairobi. This marked the beginning of his career in politics.

In 1928, he published a Gikuyu weekly newspaper, Muigwithania that dealt with the Kikuyu culture and new farming methods. The Kikuyu Central Association sent him to England in 1929 to influence British opinion on tribal land. After touring some parts of Europe, including Russia in 1930, he returned to Kenya to fight cases of female circumcision together with the Scottish Mission. He supported the idea of independent schools.

In 1931, he again went to England to present a written petition to parliament. It is during this time that he met India's Mahatma Gandhi in November 1932. After giving evidence before the Morris Carter Commission, he proceeded to Moscow to study Economics at the invitation of George Padmore, a radical West Indian. He was forced to return to Britain by 1933 when Padmore fell out with the Russians and he continued with political campaigns in the UK.
During the gold rush, land in Kakamega reserve was being distributed to settlers, something which angered Kenyatta causing him to speak about Britain's injustice. It is for this reason that the British dubbed him a communist. He taught Gikuyu at the University College, London and also wrote a book on the Kikuyu language in 1937. Under Professor Malinowski, he studied Anthropology at the famous London School of Economics (LSE). In 1938, he published a book entitled "Facing Mount Kenya".

During the World War II, Kenyatta served on a farm in the United Kingdom .He owned his own farm in the UK. He married Edna Clarke, mother of his son, Peter Magana in 1942. Along with other African leaders, including Nkrumah of Ghana, he took part in the 5 th Pan-African Congress in 1945 at Manchester.

When he returned to Kenya in 1946, he married Wanjiku, Senior Chief Koinange's daughter, who was the mother of his child, Jane Wambui. During his travels in the countryside at Kiambu, Murang'a and Nyeri, he always spoke to the local people on political matters. His last wife was Mama Ngina, the mother of Christine Uhuru, Anna Nyokabi and Muhoho. In 1947, he took over the leadership of KAU from James Gichuru.

On October 20, 1952, Sir Evelyn, Baring, newly appointed Governor of Kenya, declared a state of emergency in the country. Jomo Kenyatta and other prominent leaders were arrested. He was tried at Kapenguria on April 8, 1953 for managing Mau Mau. He was sentenced to 7 years in imprison with hard labor and to indefinite restriction thereafter. On April 14, 1959, Jomo Kenyatta completed his sentence at Lokitaung but remained in restriction at Lodwar. Later, he was moved to Maralal, where he remained until August 1961. On August 14, 1961, he was allowed to return to his Gatundu home. On August 21, 1961, nine years after his arrest, he was freed from all restrictions.

On October 28, 1961, Kenyatta became the President of the Kenya African National Union and a month later he headed a KANU delegation to London for talks to prepare the way for the Lancaster House Conference.

On June 1, 1963, Mzee Kenyatta became the first Prime Minister of self-governing Kenya. At midnight on December 12, 1963, at Uhuru Stadium, amid world leaders and multitudes of people, a new nation was born and a year later, on December 12, 1964, Kenya became a republic with Kenyatta as the President.

Mzee Kenyatta is acclaimed from all quarters of the world as a true son of Africa, a visionary leader. During his tenure, Kenya enjoyed political stability, and economic progress. In 1974, he declared free primary education up to primary grade 4.He is also remembered for urging Kenyans to preserve their culture and heritage.

He died on 22nd August 1978 at 3.30 A.M. in Mombasa at the age of 89 years, while on a working holiday.
Today, the late Kenyatta is widely acknowledged as one of the greatest men of the 20th century who played a key role in the independence of Kenya and other African nations. His name is always mentioned alongside the likes of Kwame Nkrumah and Julius Nyerere.

 

RAILA ACCEPTS SUPREME COURT DECISION

Prime Minister Raila Odinga has conceded defeat following the Supreme Court judgement that upheld Uhuru Kenyatta's election as president. Mr. Odinga wished Mr. Kenyatta well in running the affairs of government. An hour after the judgement was delivered Prime Minister Raila Odinga addressed the nation, conceding defeat and wishing the president-elect all the best as he takes over the government. Raila pledged to continue serving Kenyans.

http://www.youtube.com/watch?v=jGTjan6V98Y

PRESIDENT UHURU KENYATTA'S SPEECH AFTER SUPREME RULING

Press statement by HE Uhuru Kenyatta E.G.H., President-Elect of the Republic of Kenya following the ruling on the presidential

http://www.youtube.com/watch?v=e7RH4qvIa6A

SUPREME COURT UPHOLDS UHURU'S ELECTION AS PRESIDENT

The Supreme Court has upheld the election of Uhuru Kenyatta as Kenya's fourth president.

Chief Justice Willy Mutunga said Mr Kenyatta and William Ruto were validly elected as President and Deputy President respectively. "It is the decision that the third and fourth respondents were validly elected," Dr Mutunga said. The judgement paves way for the swearing in ceremony of Mr Kenyatta set for April 9 at the Kasarani Gymnasium in Nairobi. The Head of Public Service Francis Kimemia said the government will gazette Tuesday, April 9 as a public holiday when Mr Kenyatta will be sworn in as president.

"The rehearsals will begin on Monday. We have adopted the programme we had earlier on,” said Mr Kimemia Saturday. Martha Karua, who was a presidential candidate in the March 4 General Election, lauded the Supreme Court's decision.

"It is great that the first and most contested decision of the Supreme Court was unanimous. It is a good start for the court," she said.

Below is nation.co.ke live coverage.

http://www.youtube.com/watch?v=YT8Vh6G-35E&feature=player_embedded

MEET KETHI KILONZO, LIKE FATHER

The heavyweights in the Supreme Court room, some of whom are the age of her father and others her former lecturers, does not seem to deter her resolve to represent her client in the historic case. Ms. Kethi Kilonzo has won the hearts of Kenyans on the social media and is now the talk of town even before the presidential election petition gets under way this morning, owing to her manner of prosecuting the case. The daughter of Makueni Senator-elect and Education Minister Mutula Kilonzo who is also a Senior Counsel, is a typical case of like father like daughter.

Kethi, representing a non-governmental organisation, Africog, has not only done her father proud, but has also shown that the best legal minds can be found among young people. Ms Gladwell Otieno is Africog director. Unlike some of her seniors who have exhibited emotions, she has been able to prosecute her case in a composed manner, but hammering the point home to the delight of many. Kethi’s determination has demystified the myth that only seniors can handle major cases before the Court of Appeal and Supreme Court.

In the case filed by Prime Minister Raila Odinga before the Supreme Court, Kethi representing Africog (fourth petitioner) is the youngest counsel. The 2001 Law Degree University of Nairobi graduate has handled major cases touching on the society directly and indirectly as she builds her career among ‘learned friends’. Kethi has acted for former President Moi in a number of cases, including one in which former MP Mak’Onyango claimed he was unlawfully detained during the 1982 attempted coup. Based on her submission to the court, the then High Court judge Kalpana Rawal absolved the former Head of State from any liability on grounds that there was no evidence of personal misconduct in the detention of the petitioner.

The Attorney General was ordered to carry the burden of illegal acts perpetrated by the Government and awarded the petitioner Sh20 million compensation. In the first case that touched on the issue of dual citizenship, Kethi represented former Wajir South MP Mohammed Sirat in a matter that he was required to take plea as an Australian citizen before the Chief Magistrate’s Court. Last year, the young lawyer, who has been running Mutula’s law firm with her brother Mutula Kilonzo Jnr after their father resigned in 2008 after being appointed to the Cabinet, took the Kenya Revenue Authority to task when it seized Sh10 million from the company’s clients’ account to settle more than Sh300 million tax allegedly owed by their father. The High Court issued an order in the two siblings’ favour, compelling KRA to return the money.

In the case in which a group of politicians challenged nominations of Kenyan representatives to the East African Legislative Assembly, Kethi was in the team of lawyers that won the case that saw the East African Court of Justice (EACJ) order the Government to pay the politicians Sh160 million. In the representation of clients whose rights have been allegedly violated, she has filed several cases for her client, the Independent Medical Legal Unit (IMLU). She moved to the EACJ where she filed a case against the State for failing to take action against security officers who committed offences in Mt Elgon between 2006 and 2008.

Kethi was also one of the lawyers in the case Kanu filed against the then Narc Government on the Kenyatta International Conference Centre ownership dispute. She joined the University of Nairobi in 1997 for her Bachelor Degree in Law and joined the Kenya School of Law for a diploma in law before being admitted to the Bar. She returned to UoN where she did a Masters of Law degree in Public Finance.

Apart from studying law, Kethi was the top student in Kenya in 2006 audit examination conducted by Association of Certified Accountants. She is a member of Chartered Institute of Arbitrators (Kenya Branch), Association of Certified Chartered Accountants (United Kingdom), and Commissioner for Oaths.

Courtesy: Standard Digital

 

COURT TOLD, MERCY KEINO WAS TOO 'INTOXICATED'

Former university student Mercy Keino had taken too much alcohol before she met her death, a Government analyst told a court yesterday.

“The blood sample from her body contained a minimum intake of eight beer bottles of half litre or 18 tots of whisky, “the analyst said at a Nairobi Court.

The analyst, Ms. Eunice Njogu told a court inquiry into the death of Ms. Keino that she carried out a chemical analysis on specimens taken from her body which revealed that she had taken too much alcohol. Ms. Njogu said the examination done on June 22, 2011 was to check whether Ms. Keino had taken any chemical poison prior to her death. No other toxic chemical was detected in the blood sample apart from the alcohol, the analyst said.

She had been given samples of Ms. Keino’s blood, contents from the kidney, liver and her stomach by the police. She found high alcohol content in the blood tested. But she added that the alcohol concentration she found in Ms. Keino’s blood could have been residual as she may have urinated, excreted or vomited.

Ms. Njogu who is an analyst of 26 years’ experience, added that if Ms. Keino was a teetotaller she must have blacked out for taking such a high amount of alcohol. Ms. Keino a former student of the University of Nairobi was last seen alive while attending a party at Wasini Luxury Apartments in Westlands Nairobi on June 17 2011. Her body was found on the wee hours of the morning along Waiyaki Way.

The Director of the Public Prosecutions, Mr. Keriako Tobiko ordered an inquest to determine the cause of death because police investigations could not unravel how she died. He body was found along Waiyaki Way on The inquest was ordered by the DPP to investigate the death of Mercy, who died under unexplained circumstances on the night of June 17, 2011 last after attending a party at Wasini Luxury Apartments in Nairobi.

A scenes of crime expert who examined a Mercedz Benz, a caller told the police it had run over Ms. Keino said the vehicle had damages showing that it had hit an object.

Chief Inspector Mwangi Gitau said the damages were concentrated on the front side of the vehicle. He concluded that the vehicle was ion motion when it hit the object. The case was adjourned to June 14. A total of 23 witnesses have testified. The prosecutor will call 33 more witnesses before closing his case.

Courtesy: Standard Digital

 

NO CONJUGAL RIGHTS, I WANT TO GO TO COURT

Dear Harold,

I was forced to resort to sex toys nine months ago after my husband of five years consistently denied me conjugal rights. We have a son and daughter who are below five years old, and it depresses me that matters of the bedroom has torn our young family apart. I am also on the verge of depression as my husband makes me feel unattractive. He even says he has no problem with me using vibrators. I have tried talking to him to open up if he may be having an affair as our matrimonial bed has no life. Is it possible to go to court and demand my conjugal rights or should I seek a divorce?

Laura, Nairobi

Dear Laura,

The court cannot grant orders to compel a spouse to perform conjugal responsibilities in the bedroom. It would be better to consider seeking professional assistance from a qualified marriage counselor. Divorce or separation are legal options as family law acknowledges denial of sexual intercourse among spouses as cruelty — a ground to end marriage, according to precedence set by the English case of Sheldon vs. Sheldon in 1966. In the case, the court granted a wife orders to divorce her husband for consistently denying her conjugal rights, which amounted to cruelty. According to Lord Denning — the judge in the case — the persistent refusal of sexual intercourse by the husband for long without excuse caused grave injury to the health of his wife. The judge said that spouses both have rights and responsibilities that should be fulfilled in matrimony. Local courts can apply such landmark judgments by courts in Commonwealth countries.

Got a family related legal issue? Ask the lawyer on hayodo@standardmedia.co.ke

 

ICC PROSECUTOR ALLOWED TO AMEND UHURU CHARGES

The Pre-Trial Chamber of the International Criminal Court (ICC) has allowed the prosecutor to amend charges facing president-elect Uhuru Kenyatta. Pre-Trial judge Ekaterina Trendafilova granted Fatou Bensouda permission to add charges to state that “victims were also killed by gunshot in Naivasha.”

“Thus, from an evidentiary perspective, the prosecutor has fulfilled her statutory duty by presenting evidence which supports her allegation that victims were also killed by gunshot in Naivasha. Suffice to mention that the four witness statements presented by the prosecutor reveal that guns such as G3 rifles and more commonly AK47s were used in the killings of Luos in Naivasha. As the Appeals Chamber has stated in one of its early judgments,” Trendafilova said in her communication.

Trendafilova further explained that by amending the charges, no new charges were introduced since it was the Pre-Trial Chamber that dismissed the allegations by the prosecution that victims were shot using guns after the prosecution failed to provide evidence to prove it.

“The chamber explicitly rejected the prosecutor’s allegation that weapons were used in Naivasha due to lack of evidence, and stated: The chamber clarifies that the use of weapons and uniforms is established by the evidence only in relation to the events in Nakuru. Conversely, the chamber does not at this stage of the proceedings find sufficient evidence to substantiate the prosecutor’s allegation that weapons and uniforms were used in Naivasha,” Trendafilova recalled.

“Thus, it is apparent that the nature of the requested amendment does not aim at adding an additional charge or substituting an existing charge with a more serious one. Rather, it is a re-insertion, on the basis of the new evidence presented, of an already known specific factual allegation for an existing charge of murder in Naivasha – a location that has already been referred to in the Confirmation of Charges Decision.

It follows that the Single Judge does not need to hold a hearing for the purpose of deciding on the prosecutor’s request,” she asserted. Though the prosecution is not allowed to do investigations after confirmation of charges according to the Rome Statute, the judge said under special circumstances it is allowed to continue with investigations even after charges are confirmed based on reasons given by the prosecutor in her request.

Trendafilova said based on complaints by the prosecution that the government of Kenya failed to cooperate with the court and was also unwilling to submit required information to help in the investigations, the Pre-Trial Chamber allowed the prosecution to continue with investigations after charges had already been confirmed.

She also based the approval on security challenges owing it to the alleged intimidation of victims and witnesses.

Another concern that allowed the prosecution to continue with investigations at such a stage was also the challenges that it faced in getting ‘insider witnesses to provide information to the court.’

“In the context of the present case, the prosecutor managed to furnish the chamber not only with evidence supporting the existence of the factual allegation, but also with a reasonable justification for the continuation of her investigation subsequent to the confirmation hearing,” Trendafilova asserted.

Kenyatta’s legal team on Monday urged the ICC to dismiss the case against him after prosecutors last week dramatically dropped all charges against his co-accused former Head of the Civil Service Francis Muthaura after a key witness withdrew testimony.

It was the first time ICC prosecutor decided to drop a case since the world’s first permanent independent war crimes court began operating in 2002. Lawyer Steven Kay on Monday said all the five charges against Uhuru should now also be reconsidered.

On Wednesday, Bensouda said she would not drop the crimes against humanity charges facing the president-elect. She told reporters in Paris that it is only a question of when and not if, Uhuru goes to trial.

Kenyatta’s trial is scheduled to begin in July and he has repeatedly vowed to cooperate with the legal proceedings.

KALEMBE FILES ELECTION PETITION

Politician Kalembe Ndile on Wednesday protested against the announcement of two different results for Kibwezi West constituency in a span of three days. In an election petition before the High Court in Machakos challenging the election of  Patrick Musimba as the MP for Kibwezi West, Ndile argues that tallying in most polling stations was conducted improperly.

He says the returning officer used form 35 to declare Musimba winner with 17,174 votes against his 16,975. “But on March 8, the same returning officer this time using form 36 declared Musimba winner with a different figure of 17,196 against 16,976 that I purportedly scored,” Ndile says.

The former MP, who is represented by lawyer Andrew Makundi, has sued Musimba, Kibwezi West returning officer and the electoral commission. The Kibwezi West seat had nine contestants. Ndile lists 10 grounds challenging the results.

He says counting of votes in most polling stations was done after midnight in dim light. “Some stations used light from their mobile phones and motorcycle headlight and the petitioner took video of such instances to help argue his case,” Mr Makundi said.

“This happened at Wivia primary and Kyandundu primary schools polling stations,” he said. Ndile wants the court to order a vote recount.

RUTO'S RESPONSE TO RAILA'S PETITION

Ruto maintains the Jubilee team won the presidency by over 50.02 per cent. “Part of the Jubilee coalition votes were lost in an improper reconciling of spoilt and rejected votes but the coalition accepted the declared results,” he says in the papers prepared by his lawyer Katwa Kigen.

He says Raila’s allegation that Uhuru did not garner over 50 per cent votes was unfounded and untrue. The Jubilee luminaries contend that most of the observers accredited by IEBC, including Heads of States and representatives of other countries, had returned the verdict the polls were substantially free, fair and credible.

Their lawyers led by Fred Ngatia for Uhuru and Katwa Kigen for Ruto, argue the Supreme Court has no jurisdiction to entertain some of the questions of criminal culpability sought by Raila against the IEBC and its chairman. It cannot deal; they go on, with the procurement process of the electronic equipment used in the polls.

Ruto says Raila cannot seek what would be an invalidation of all the other elections for other seats. The court has no power to address the issue of voter registration, civic education, campaigns, elections and declarations into various offices, they added.

UHURU'S RESPONSE TO RAILA'S PETITION

Below is a summary of Uhuru Kenyatta’s response to the Raila Odinga’s Presidential Election Petition filed at the supreme court of Kenya.

The contents of paragraph 2.3 of the Petition are incorrect to the extent that the Petitioner attributes the enactment of the Constitution to the Government of the Republic of Kenya, civil society and the private sector whereas the Constitution is in truth adopted and enacted by the people of Kenya.

The 3rd Respondent having perused the Petition has noted that no Accusation is made against him.

The Petition is replete with falsehood and is a robust effort to exaggerate facts and circumstances which are intended to secure for the Petitioner an unjust advantage. The Petition in essence seeks to substitute the will of Kenya people who elected the 3rd Respondent in elections that were free, fair and credible by the standards established by law.

The 1st Respondent’s conduct of the election must also be assessed against the following novel circumstances;

For the first time in Kenya’s history, 6 elections were held simultaneously on the same day.

For the first time in Kenya’s history, portions of the electoral process were conducted through electronic means including voter registration.

The general election was the first one under the new Constitution.

The record registration of over 14 million voters.

Creation of 80 new constituencies and delimitation of new electoral units undertaken in 2011 pursuant to the provisions of Article 89 of the Constitution of Kenya.

The conduct of elections under a statutory framework for the creation of coalitions and a new Political Parties Act.

The conduct of elections that will lead to the first devolved system of Government in Kenya.

Significant delays in the enactment of electoral laws by Parliament which was compounded by several late stage amendments to such laws with the attendant consequence that the 1st Respondent’s schedule of executing the efficient conduct of the elections was disrupted.

A legal challenge and political opposition to the procurement process commenced by the 1st Respondent for BVI, BVR and electronic results transmission system.

The Constitution does not impose any duty on the 1st Respondent to use BVI, BVR and/or a system of transmitting election results electronically hence it is a fundamental misconception of the law for the Petitioner to contend that either registration of voters, identification of voters or transmission of the votes cast was required by law to be done via an electronic system.

At a press conference convened on 31st July, 2012,the Petitioner and several senior members of ODM called for a return to the manual system and declared that Kenyans did not want the BVR system. It is therefore the height of hypocrisy for the Petitioner to now claim that the only credible process of conducting elections must be founded on an electronic system.

Following consultations between the President, the Petitioner and the 1st Respondent, a decision was made to procure the BVR Kits from the Government of Canada in a Government – Government deal. The Cabinet meeting at which the decision was made was chaired by the President and the Petitioner.

It therefore follows that the Petitioner had a critical role in the identification and eventual purchase of the BVR Kits. The Petitioner cannot therefore either found a cause of action arising from his participation in the purchase of the BVR kits and/or benefit from the ultimate partial failure of the electronic systems.

The notion that electronic voting systems are the only accurate, accountable, verifiable, transparent and efficient method of voter registration, voting and results transmission is not only fundamentally unsound in law but also factually incorrect. Such systems have failed all over the world in the past in the following instances:

(i) The BVR system crashed and/or failed in 2012 in the Ghana Presidential election.

(ii) Electronic voting systems failed during the 2000 Presidential election in the United States of America.

(iii) Electronic voting systems have failed, crashed and or mulfunctioned in numerous elections in Europe and in Municipal elections in the United States of America to the extent that legislation has been introduced in some jurisdictions requirement for a manual back up system in every election.

In excess of 800,000 people expressed their preference for the 3rd Respondent who are more than the total number of voters in 3 densely populated counties namely Tharaka Nithi, Kakamega and Bomet.

Every effort humanly possible was made to ensure that the voting method adopted by the 1st Respondent was simple, accurate, verifiable, secure, accountable and transparent.

The results announced were indeed accurate and verifiable in accordance with the standard established by law and were announced in a transparent and lawful manner as contemplated by Article 86 of the Constitution and the Election (General) Regulations, 2012.

The allegations at page 14 paragraph 5.2 of the Petition are false. In particular the 3rd Respondent states that the will of the people of Kenya expressed in a free fair and credible electoral process can not in law be overturned or subverted on the basis of a hypothesis. The petition correctly understood, is founded on a hypothesis incapable of proof; it is an expression of bitterness arising from the Petitioner’s loss of the poll and raises no legal issues capable of a judicial inquiry.

The allegations at page 16 paragraph 5.5 are false. The agents for all political parties present at the national tallying centre were not ejected from the tallying centre but rather provided with suitable alternative facilities within the tallying centre after the Petitioner’s supporters started shouting and mis-conducting themselves in a room which they and other agents had been allocated for verification of results.

It is thus manifestly clear that the Petitioner’s attempt to impeach the entire electoral process and invalidate the results is an afterthought informed by the shock of losing the election rather than on any impropriety or irregularities by the 1st and 2nd Respondents.

The 3rd Respondent states that the burden of the Petitioner’s case is that the entire electoral process commencing with voter registration, voting and tallying of results and the declaration of results was invalid, null and void. The 3rd Respondent contends that the court is being invited to stage a coup against the constitutional governance of Kenya in that not only the Presidential election would be impugned but the Parliamentary, Gubernatorial, Senatorial and County Assembly elections would also be vitiated.

The Orders sought by the Petitioner are also mischievous and designed to cause disproportionate harm to constitutional governance in that they call for impeachment without legal basis of the only body established in law to conduct elections so as to trigger a crisis in the Executive and Legislative arms of Government that would enable the Petitioner to negotiate and/or bully his way to power in contravention of the Constitution.

EXECUTIVE SUMMARY OF AFFIDAVIT IN REPLY

I have actively participated in all aspects of the electoral process either directly or through agents of the Jubilee Coalition and TNA. I can unequivocally state that in my view the 1st Respondent and its staff, including the 2nd Respondent, have conducted the entire process with remarkable diligence, efficiency and in full fidelity to the standards established in the Constitution and all the electoral laws notwithstanding logistical and technological problems encountered on 4th March 2013.

The difference between the votes cast in my favour and those cast in favor of the Petitioner is 832,887. In all humility, the said difference is very significant and emphatically demonstrates the resolve of the people of Kenya to exercise their free and sovereign will.

At a press conference held subsequent to the election the Petitioner disclosed that he would contest the results of the election in court because he believed that he won the election by 52% – 53% having been so advised by foreign journalists who had seen “exit polls” results prepared by an unknown entity.

During the 21 months or so that the 1st Respondent has been in existence, it has outdone itself in establishing and overseeing the creation of a very solid statutory and legal framework for the conduct of free, fair and credible elections. In my very respectful assessment, which I humbly invite this Honourable Court to share, the 1st Respondent has also scrupulously complied with such statutory requirements within the limits of human capacity.

I am a firm and passionate believer in Kenyan institutions, some imperfections notwithstanding, and in the sovereign right of the Kenyan people to reform and improve such institutions without disparaging them in the manner the Petitioner has done. The 1st Respondent has, in my view, acquitted itself very well under very difficult circumstances and is to be commended and not vilified.

I am aware that soon after the BVR tender process commenced by the 1st Respondent was terminated in June 2012, the Petitioner and other senior members of ODM held a press conference at which they demanded that the 1st Respondent reverts to the manual registration of voters. I now produce a recording of the said press conference which is available at http://www.youtube.com/watch?v=ijnglywxdmQ and is produced to this court in electronic form contained in an envelope marked “UK9”.

I am also aware that in the United States of America, some states have taken the step of abandoning electronic systems in favour of ballot papers. I now produce an article published in Time Magazine on 3rd November 2007 titled “Voting out e-voting machines”. The article is marked “UK10”.

There is no legal requirement for the transmission of final election results electronically. Indeed, the 2nd Respondent is obliged by law to announce the results on the basis of manual Form 34’s.

In response to the allegation that Kencall co-hosted servers for TNA and the 1st Respondent, I now produce an affidavit sworn by Nicholas Alexander Nesbitt on behalf of Kencall setting the record straight. The affidavit is marked “UK14”. Also annexed hereto and marked “UK14A” is an affidavit sworn by an ICT expert Stephen Kanyatte Mwangi, which provides further clarification on pertinent issues.

I nevertheless wish to state very firmly that the allegation that the voter register was unlawfully tampered with after the registration period had ended so as to confer a benefit to me is deceitful, irresponsible and a false allegation peddled by the Petitioner so as to attract unjustified sympathy and inflame public passions.

Nearly all local and international observers and monitors who were accredited by the 1st Respondent have issued preliminary reports stating that the election was substantially free, fair and credible notwithstanding the minor irregularities and other logistical problems experienced during the election process.

The Petitioner has, subsequent to the announcement of the results, repeatedly stated that the election was “stolen” from him and that the 3rd and 4th Respondents are “criminals who should be in jail”. I now produce a video clip depicting the said speech by the Petitioner, which is in electronic form contained in an envelope marked ”UK 19”.

The Petitioner and his agents, particularly one Johnstone Muthama, have repeatedly engaged in hate speech and incitement in violation of the provisions of Article 33(2), the Electoral Code of Conduct and the National Cohesion and Integration Act so as to:

Undermine the electoral process

Compromise the fair adjudication of this petition; and

Subvert the free and sovereign will of the people of Kenya expressed on 4th March 2013.

I now produce a summary of news reports marked “UK 20” which identify instances of show the Petitioner inflaming and inciting public passions before and after the elections.

The public utterances by the Petitioner since the election when seen against the orders sought in the Petition are so broad and ungovernable that it appears to me that the Petitioner seems intent on provoking a constitutional leadership crisis that would enable him to negotiate his way to government. The utterances by the petitioner demonstrate beyond peradventure that he would only consider an election free, fair and democratic if he were declared the winner. I urge this Honourable Court to protect this nation by rejecting this irresponsible and unlawful attempt to secure power notwithstanding the resounding loss suffered at the General Elections.