REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI PETITION NO. 18 OF 2017 BETWEEN OKIYA OMTATAH OKOITI.PETITIONER VERSUS AND

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1 REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI PETITION NO. 18 OF 2017 BETWEEN OKIYA OMTATAH OKOITI.PETITIONER VERSUS THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION 1 ST RESPONDENT THE CHAIRPERSON, INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION 2 ND RESPONDENT AND H.E. UHURU KENYATTA..1 ST INTERESTED PARTY RT. HON. RAILA ODINGA.2 ND INTERESTED PARTY DR. EKURU AUKOT JOHN. 3 RD INTERESTED PARTY DIDA MOHAMED ABDUBA 4 TH INTERESTED PARTY MWAURA MICHAEL WAINAINA..5 TH INTERESTED PARTY NYAGA JOSEPH WILLIAM NTHIGA..6 TH INTERESTED PARTY KALUYU JAPHETH KAVINGA.7 TH INTERESTED PARTY SHAKHALAGHA KHWA JIRONGO 8 TH INTERESTED PARTY 1 ST AND 2 ND RESPONDENT S WRITTEN SUBMISSIONS May it please this Honourable Court, 1. These Submissions are in response to the Petition dated 27 th October 2017 and filed before this Honourable Court on the same date. Background and Undisputed Facts Page 1 of 27

2 2. The following background facts are not in dispute:- a) The 2 nd Respondent is entrusted with the exclusive constitutional mandate of inter alia conducting or supervising referenda and elections to various elective bodies and offices established by the Constitution of Kenya. b) Presidential elections were held on 8 th August 2017 (the August 8 th Election ) pursuant to the provisions of Article 136 (1) and (2)(a) of the Constitution. c) On 18 th August 2017, Raila Odinga, a contestant in the August 8 th Election filed Election Petition No. 1 of 2017 in the Supreme Court, challenging the declaration of Uhuru Kenyatta as the winner. d) On 1 st September 2017, the Supreme Court delivered a determination of the Court (the Determination ). By the said Determination, the Court allowed the Petition filed by Raila Odinga and Kalonzo Musyoka and nullified the declaration of the Uhuru Kenyatta as the President-elect in the 8 th August 2017 presidential election. Pursuant to the said Determination, the 2 nd Respondent was directed to organize and conduct a fresh presidential election in strict conformity with the Constitution and the applicable election laws within 60 days under Article 140(3) of the Constitution. e) Immediately following the Determination by which the 1 st Respondent was ordered to conduct a fresh presidential elections within 60 days, the 2 nd Interested Party and members of his coalition announced a raft of new demands and widely propounded the rallying call that no elections would be held unless certain demands and irreducible minimums were met. f) In the absence of further guidance from the Court regarding the framework for carrying out the elections under Article 140(3) of the Constitution including the candidates to participate in the fresh elections Page 2 of 27

3 ordered, the 2 nd Respondent relied on the opinion at paragraph 290 of judgment of the Supreme Court in the 2013 Raila Case that the fresh election is confined to the Petitioner and the President-elect and that all the remaining candidates who did not contest the election of the President-elect, were assumed to have either conceded defeat, or acquiesced in the results as declared by the 2 nd Respondent; and such candidates may not participate in the fresh election. g) The 2 nd Respondent thereafter issued a Gazette Notice No dated 5 th September 2017 gazetting two candidates as the only ones eligible to participate in the said elections based on the 2013 Raila Case. h) Aggrieved by the Gazette Notice published on 5 th September 2017, one of the presidential candidates, Dr. Ekuru Aukot filed an application in the Supreme Court on 6 th September 2017, seeking interpretation of phrase fresh election as provided under Article 140(3) of the Constitution of Kenya In particular, Dr. Aukot sought clarification on the persons eligible to participate as candidates in the fresh election following the Court s determination rendered on 1 st September The application was struck out by this Honourable Court for want of jurisdiction. The Court noted that the application ought to have been filed in the High Court. i) On 22 nd September 2017, Dr. Ekuru Aukot, the 3 rd Interested Party filed a Petition at the High Court, Nairobi Petition No. 471 of 2017 seeking a declaration that his right to participate and representation in governance as a presidential candidate guaranteed under Article 38 and 27 of the Constitution had been infringed. He further sought a declaration that Gazette Notice No of 5 th September 2017 was in violation of his rights under Articles 38, 27 and 140(3) of the Constitution and sought for an order compelling the 1 st and 2 nd Respondents to issue a new gazette notice including his name. After hearing the Petition, on 11 th October 2017, the High Court allowed the Petition. Page 3 of 27

4 j) In its decision, the High Court expressed the view at paragraph 73 that all candidates who participated in the 8 th August Election ought to have been included in the fresh election. k) In the meantime, on 10 th October, 2017 the 2 nd Interested Party and his Running Mate announced that they would not be participating in the fresh elections ordered by this Honourable Court. l) In compliance with the decision of the High Court, by Gazette Notice No dated 13 th October 2017, the 1 st and 2 nd Respondents issued an addendum to Gazette Notice 8751 of 5 th September 2017 setting out the names of the candidates who shall participate in the fresh presidential election slated for 26 th October 2017 in compliance with the orders of the High Court of 11 th October m) The Judgment of Hon. Mr. Justice Mativo culminated in two sets of appellate proceedings as below: i. Civil Appeal (Application) Number 349 of 2017, Abraham Kiplangat Mutai Vs Dr. Ekuru Aukot, IEBC & Others which was subsequently formally withdrawn before the Court of Appeal on Wednesday, 18 th October, 2017; ii. Civil Appeal No. 359 of 2017, Orange Democratic Movement v IEBC & Others which is currently pending before the Court of Appeal. n) The fresh elections ordered by the Supreme Court were held on 26 th October, Following tallying of results, the 1 st Interested Party was on 30 th October, 2017 declared President-Elect having met the threshold set out in Article 138(4) of the Constitution. o) The 1 st and 2 nd Respondents oppose the Petition on the grounds set out in the Replying Affidavit sworn by Mahamud Jabane on 7 th November, Issue No. 1: Jurisdiction Page 4 of 27

5 3. It is the 1 st and 2 nd Respondents humble submission that that this Honourable Court lacks jurisdiction to hear and determine the Petition for the following reasons:- a) The issue as to what constitutes a fresh election under article 140(3) of the Constitution and whether paragraph 290 of the 2013 Raila Case is binding, is currently the subject of proceedings before the Court of Appeal in Civil Appeal No. 359 of 2017 (Orange Democratic Movement v Dr. Ekuru Aukot & 4 Others). It is the 1 st and 2 nd Respondents humble submission that this Honourable Court therefore lacks jurisdiction to adjudicate on an issue which is still the subject of judicial determination in the Court of Appeal as it would amount to interference with the due process and with the rights of parties to be heard before the Court of Appeal which is vested with jurisdiction as the first appellate court from the decision of the High Court in Constitutional Petition No. 471 of The same would also constitute an impediment to the prospect of an appeal from the Court of Appeal to the Supreme Court. b) The jurisdiction of this Honourable Court under Article 163 (3) of the Constitution as read together with the Supreme Court (Election Petition) Rules, 2013 becomes operative only upon declaration of results of a presidential election. As held in Isaac Aluoch Polo Aluochier v IEBC & Others, Petition No. 2 of 2013 [2013 [eklr], Advisory Opinion No. 2 of 2012 does not confer jurisdiction upon the Supreme Court to hear matters other than in the manner provided by the Constitution and statute. To the extent that the Petition was filed on 27 th October, 2017 which was before the declaration of results of the fresh presidential election on 30 th October, 2017, the Petition lacks the requisite legal foundation and ought to be dismissed forthwith. c) The Petition herein has been filed as a constitutional Petition but seeks orders that can only be granted in a Presidential Election Petition within the contemplation of Article 140 of the Constitution, Section 12 of the Page 5 of 27

6 Supreme Court Act and the Supreme Court (Presidential Election Petition) Rules, d) The Honourable Court is not properly seized of the matter for want of compliance with the mandatory provisions of the law relating to the filing of a Presidential Election Petition as provided by the Supreme Court (Presidential Election Petition) Rules, e) The Petition further seeks interpretation and/or review of the decision in Petition No. 5 of 2013 Raila Odinga v IEBC & Others (hereinafter referred to as (the 2013 Raila Case ). This Honourable Court lacks jurisdiction to review and/or interpret its own decision. In Fredrick Otieno Outa v. Jared Odoyo Okello & Three Others; Supreme Court Petition No. 6 of 2014 ( Fred Outa Decision ). In the Fred Outa Decision, the Supreme Court held that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, except in the manner contemplated by Section 21(4) of the Supreme Court Act. However, in exercise of its inherent powers, the Supreme Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. The listed circumstances are limited to situations where:- a) the judgment, ruling, or order, is obtained, by fraud or deceit; b) the judgment, ruling, or order, is a nullity, such as, when the Court itself was not competent; c) the Court was misled into giving judgment, ruling or order, under a mistaken belief that the parties had consented thereto; d) the judgment or ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision. f) The Petitioner is, in effect, inviting this Honourable Court to amend the provisions of the Constitution by including an event of notification by way of a letter of Page 6 of 27

7 a voluntary withdrawal by a candidate as one of the circumstances provided for under Article 138(8) of the Constitution. The jurisdiction of this Honourable Court as conferred under Article 163 does not include the power to amend the Constitution. g) The Petitioner is seeking an interpretation of the provisions of Article 138 of the Constitution. This Court has already found that the jurisdiction to interpret provisions of the Constitution belong in the first instance to the High Court pursuant to the provisions of Article 165(5) of the Constitution and thereby divested itself of jurisdiction. h) As regards the issue of appointment of Returning Officers and Deputy Returning Officers, the decision of the High Court in Misc. Application No. 628 of 2017, Republic IEBC Ex Parte Khelef Khalifa & Anor was stayed by the Court of Appeal on 25 th October 2017 in Civil Application No. 246 of The matter is pending determination before the Court of Appeal. In the circumstances, the validity of the appointment of the Returning Officers and the Deputy Returning Officers who conducted the 26 th October 2017 is a live issue pending before the Court of Appeal, and under the doctrine of ripeness, ought to be canvassed before that Court. 4. Based on the foregoing, it is the 1 st and 2 nd Respondent s humble submission that the jurisdiction of this Honourable Court has been wrongly and prematurely invoked. The 1 st and 2 nd Respondents urge that the Petition be struck out or dismissed in limine. Authorities: a) Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others, Supreme Court Petition No. 27 of 2014, [2014] eklr where the Honourable Court stated: As it stands, the matter is still pending before the Industrial Court. The petitioner has come to this Court too early in the day and the Court cannot Page 7 of 27

8 admit him. The matter is not ripe for the consumption of the Supreme Court. The Honourable Court further cited with approval the remarks of Jeffrey Tobin, commenting on the ripeness doctrine in page of his book The Oath: The Obama White House and The Supreme Court and stated thus: There are a (sic) number of procedural doctrines that can be used for this purpose. Other examples include ripeness (is it too early for a court to decide the case?), mootness (is it too late for a court to decide a case?), venue (is this court the right one?), and the political question doctrine (is the subject matter appropriate for a court to decide at all?). Everyone agrees that these doctrines are necessary, at some level; the courts cannot be allowed to weigh in on controversies simply because judges feel like deciding the merits. b) In Peter Oduour Ngoge v Hon. Francis Ole Kaparo, SC Petition 2 of 2012, the Court stated as follows at para : The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals. In the instant case, it will be perverse for this Court to assume a jurisdiction which, by law, is reposed in the Court of Appeal, and which that Court has duly exercised and exhausted. In the interpretation of any law touching on the Supreme Court s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court. c) In Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 Page 8 of 27

9 [2012] eklr, the Court pronounced itself on jurisdiction at paragraph 68 thus: (68) A Court s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law... d) The Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011 where the Court underscored the principle that where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits and that the court cannot expand its jurisdiction through judicial craft or innovation. e) Isaac Aluoch Polo Aluochier v IEBC & Others, Petition No. 2 of 2013 [2013 [eklr], Advisory Opinion No. 2 of 2012 where the Court stated thus: [35] While it is clear to us that this Court s exclusive original jurisdiction covers the matters in the gravamen of the petitioner s grievance, the law has defined the time of declaration of Presidential results as the operative moment in the exercise of this jurisdiction. (underlining added). 5. Without prejudice to the preliminary objections set out above which are supported by the authorities cited above, and without in any way admitting the competence of the Petition, the 1 st and 2 nd Respondents make further submissions in answer to the Petition as below: Issue No. 2: Nomination of Candidates for the fresh Presidential Elections 6. The following key provisions of law are instructive in relation to the nomination process: a) The Elections Act, 2011 defines nominations as the submission to the Commission of the name of a candidate in accordance with the Constitution and [the Elections] Act. Page 9 of 27

10 b) Section 27 (1) of the Elections Act which provides that A political party shall submit its nomination rules to the Commission at least six months before the nomination of its candidates for review by the Commission before issuance of a certificate of compliance. c) Section 13. (1) of the Elections Act which provides that A political party shall nominate its candidates for an election under this Act at least ninety days before a general election under this Act in accordance with its constitution and nomination rules. d) Section 13 (3) of the Elections Act provides that Notwithstanding subsection (1), in the case of any other election, the Commission shall by notice in the prescribed form, specify the day or days upon which political parties shall nominate candidates to contest in a presidential, parliamentary or county election in accordance with its constitution or rules, which shall be at least fifty-five days before such election. e) Section 13 (2A) of the Elections Act which provides that A political party shall hear and determine all intra party disputes arising from political party nominations within thirty days. f) Section 41 of the Political Parties Act, No. 11 of 2011 provides that the Political Parties Disputes Tribunal shall determine any dispute before it expeditiously, but in any case shall determine a dispute within a period of three months from the date the dispute is lodged and that an Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court. 7. As regards the initiation of Presidential Elections, section 14 of the Elections Act provides thus: 14. (1) Whenever a presidential election is to be held, the Commission shall publish a notice of the holding of the election in the Gazette and in electronic and print media of national circulation- (a) in the case of a general election, at least sixty days before the date of the election; or Page 10 of 27

11 (b) in the case of an election under Article 138(5) of the Constitution, at least twenty-one days before the date of the election; (c) in any other case, upon the office of the President becoming vacant. 8. It is clear from the foregoing legal framework on nominations that the full spectrum of the nominations processes requires way in excess of 60 days and that it is therefore impracticable for nominations to be held in the case of the repeat elections. Indeed, the applicable legal framework indicated above does not contemplate fresh nominations in the case of fresh elections under Article 140(3) of the Constitution. 9. As detailed in the Replying Affidavit of Mahamud Jabane the 1 st Respondent held extensive internal consultations as to the manner in which the fresh presidential election was to be conducted as envisaged in the Court s determination and it was clear that it would not be possible to hold fresh nominations for the explained reasons. Indeed, none of the Presidential candidates or parties raised the issue of nomination with the 1 st Respondent as it was common ground that fresh nomination by the parties was not a requirement. 10. The decision of the 1 st Respondent not to conduct fresh nominations before publishing Gazette Notice No dated 5 th September 2017 was further informed by the views expressed by the Supreme Court at paragraph 289 of Raila Odinga & 5 Others vs Independent Electoral and Boundaries Commission & 3 others, Petitions 3, 4 and 5 of 2013 (consolidated), [2013] eklr (the 2013 Raila Case or 2013 Raila Odinga Decision ) where the Court expressed itself as follows:- Since a fresh election under Article 140(3) of the Constitution is triggered by the invalidation of the election of the declared President-elect by the Supreme Court, the fresh presidential election is built on the foundations of the invalidated election and as such Page 11 of 27

12 there will be no basis for a fresh nomination of candidates for the resultant electoral contest (paragraph 289) (Emphasis added). 11. The decision not to undertake fresh nominations was further reinforced by the guidance provided by the judgment of the High Court in Petition No. 471 of 2017, Ekuru Aukot vs IEBC & others (the Ekuru Aukot High Court Case ) at paragraph 73 where the learned trial judge held as follows:- Applying the principles of interpretation enumerated above, and to avoid an interpretation that may lead to absurd results, it is my view that the 60 day period may not be adequate for fresh nominations. Hence, the logical construction which to me would serve public interest is that those who participated in the invalidated election do qualify to contest in the fresh election. 12. In compliance with the judgment in Ekuru Aukot High Court Case which reinforced that the election be held on 26 th October, 2017 and directed that that election include Ekuru Aukot as candidate, by Gazette Notice No dated 13 th October 2017, the 1 st Respondent published an addendum and included Ekuru Aukot and in light of the other findings in paragraph 73 of the Judgment, also included four other candidates who had participated in the 8 th August 2017 presidential election. 13. Based on the foregoing it is the 1 st and 2 nd Respondents humble submission that the Petitioner s arguments in relation to the nomination of candidates for the fresh elections under Article 140(3) of the Constitution are erroneous and impracticable for the following reasons: A) the interpretation section of the Elections Act, No. 24 of 2011 defines nomination as the submission to the 1 st Respondent of the name of a candidate in accordance with the Constitution and the Elections Act; B) the interpretation section of the Elections Act defines nomination day as the day gazetted, at least sixty Page 12 of 27

13 (60) days before an election by the 1 st Respondent as the day for the nomination of candidates for that election; C) Section 27 (1) of the Elections Act requires political parties to submit their nomination rules to the 1 st Respondent at least six months before the nomination of candidates for review by the 1 st Respondent before issuance of a compliance certificate. D) In respect of any other election other than a general election, under Section 13(3) of the Elections Act, the 1 st Respondent is required to specify the day or days upon which political parties shall nominate candidates to contest in the election at least fifty-five (55) days before such election. E) Section 13 (2A) of the Elections Act requires political parties to hear and determine all intra party disputes arising from political party nominations within thirty (30) days. F) Section 41 of the Political Parties Act, No. 11 of 2011 provides that the Political Parties Disputes Tribunal shall determine any dispute before it expeditiously, but in any case shall determine a dispute within a period of three months from the date the dispute is lodged and that an Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court. G) Regulation 18(1) of the Elections (General) Regulations 2012, requires persons delivering applications for nominations as political party or independent presidential candidates to deliver to the 1 st Respondent at least five (5) days to the day fixed for nomination, a list bearing the names, respective signatures, identity card or passport numbers of at least two thousand (2000) voters registered in each of a majority of the counties. H) Regulation 18 (3) of the Elections (General) Regulations 2012, requires that the application for nomination be accompanied by a statutory declaration (in Form 13 of the Schedule) made not earlier than a month before the nomination day. Page 13 of 27

14 14. It is clear from the foregoing that the Petitioner s view that the fresh elections under article 140(3) ought to have been preceded by nominations is not only legally unfounded but also practically impossible in view of the applicable legal framework highlighted above. Issue No. 3: The purported withdrawal by the 2 nd Interested Party and his running mate 15. It is the 1 st and 2 nd Respondent s humble submission that the Petitioner s contentions under this head, as contained in paragraphs 20, 22 and 23 of the Petition, are untenable and lack merit for the following reasons:- a) as demonstrated in the Replying Affidavit of Mahamud Jabane, after the 2 nd Interested Party s purported withdrawal on the afternoon of 10 th October 2017 and before the 1 st and 2 nd Respondents could reasonably convene a plenary to decide on the effect of the purported withdrawal, on 11 th October 2017 at 9am, the High Court in the Dr. Aukot High Court Case directed that Dr. Aukot be included as a candidate in the fresh election scheduled for 26 th October, 2017 and made a finding that all the other candidates in the 8 th August 2017 election were entitled to participate in the fresh election; b) without prejudice to the position taken by the 1 st and 2 nd Respondents to the effect that the purported withdrawal by the 2 nd Interested Party was ineffectual, the decision in the Ekuru Aukot High Court Case changed the context of the 26 th October 2017 elections by reinforcing the holding of the elections on 26 th October, 2017 and providing guidance as to the eligible candidates. The High Court was quite clear that the candidates who participated in the August 2017 Election were indeed entitled to participate in the fresh presidential election from the outset. As such, the scenario in the Raila Odinga 2013 case was not relevant. c) in view of the findings in High Court decision in the Dr. Aukot Case and the failure by the 2 nd Interested Page 14 of 27

15 Party to adhere to the provisions of Regulation 52 of the Elections (General) Regulations, the 2 nd Interested Party did not abandon or withdraw from the 26 th October 2017 Fresh Presidential Elections; d) by failing to tender a withdrawal as contemplated under Regulation 52 of the Elections (General) Regulations, the 2 nd Interested Party did not legally withdraw from the 26 th October 2017 Presidential Elections and the elections of 26 th October 2017 cannot be invalidated on that account; e) the Petition is, in any event, internally inconsistent for the reasons that the Petitioner avers that the 1 st and 2 nd Interested Parties were given direct nominations by this Honourable Court, and it therefore follows that any withdrawal from candidature ought to have complied with Regulation 52 of the Elections (General) Regulations, and the 2 nd Interested Party ought to have filled and submitted Form 24A within three (3) days of the relevant Gazette Notice cited above; f) none of the instances provided under Article 138(8) of the constitution had arisen to warrant the cancellation of the fresh presidential election which was scheduled for 26 th October It is the 1 st and 2 nd Respondents humble submission that the allegation in paragraph 27 of the Petition to the effect that the 2 nd Interested Party s purported withdrawal from the 26 th October 2017 election kicked in to operation Article 138 (8) (b) as read together with Article 138 (9) of the Constitution is misconceived for the following reasons:- a) Article 138 (8) as read together with Article 138 (9) of the Constitution only apply if:- i) no person has been nominated as a candidate before the expiry of the date set for delivery of nominations; Page 15 of 27

16 ii) iii) a candidate for election as President or Deputy President dies on or before the scheduled election date; or a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President. b) None of the instances provided under Article 138 (8) of the Constitution had arisen to warrant the cancellation of the presidential election scheduled for 26 th October The reasons as to why the three circumstances above would invite cancellation of elections and indeed fresh nominations are quite obvious as clearly one of the candidates who participated in the election would not be in a position to participate in the fresh election. As regards voluntary withdrawal or abandonment, Regulation 52 and 53 provide the clear result and cannot in any way be equated to a situation of death. 17. Based on the explained circumstances, it is the 1 st and 2 nd Respondents humble submission that the Petitioner s claim under this head is without legal basis and ought to be rejected. Issue No. 4: Operational preparedness and independent mandate of the 1 st Respondent 18. It is the 1 st and 2 nd Respondents humble submission that by virtue of Articles 140 and Article 163 of the Constitution, the Petitioner s claims relating to operational preparedness of the 1 st Respondent can only be considered in the context of challenging the results of the presidential election once declared. Having been filed before the declaration of results of the presidential election the Petition is not a Presidential Election Petition stricto sensu. It is the 1 st and 2 nd Respondents humble submission that the Petition is a devious attempt to obtain undeserved orders in the guise of a conventional constitutional petition. 19. In any event and without prejudice to the foregoing, it is the 1 st and 2 nd Respondents humble submission that the Page 16 of 27

17 26 th October 2017 presidential election was conducted in compliance with the Constitution and the law as extensively demonstrated in the Replying Affidavit of Mahamud Jabane sworn on 7 th November, In addition, as acknowledged by the Petitioner, the 1 st Respondent is an Independent Commission established under Article 88 as read together with Article 248 (1) (c) of the Constitution. It is charged with the responsibility of supervising referenda and elections to any elective body or office established by the Constitution or as prescribed by an Act of Parliament. Pursuant to Article 249 (2) (b) of the Constitution, the 2 nd Respondent is mandated and required to remain independent and not to be under the control or direction of any person or authority. 21. The Petitioner contends that the 1 st Respondent was expected to meet the demands contained in the document presented by the National Super Alliance (NASA) on 12 th September 2017, titled, "NASA Position Paper on Irreducible Minimums Before the Fresh Elections are held" before NASA could participate in the fresh presidential election. 22. In carrying out its duties under Article 88 of the Constitution, the 1 st Respondent is enjoined by Article 249 (2) (a) to carrying out its functions, subject only to the Constitution and the legislation relevant to the function sought to be undertaken. The importance of the independence of the 2 nd Respondent and its ability to function without interference was underscored and emphatically stated by the Supreme Court In the matter of the Interim Independent Electoral Commission, Advisory Opinion No. 2 of 2011 as follows:- 58. The Independence of Commissions is secured by Article 249 (2) of the Constitution which provides that such Commissions and holders of office therein (Article 248), are subject only to the Constitution and the law and are independent and not subject to direction or control by any person or authority.... Page 17 of 27

18 59. It is a matter of which we take judicial notice that the real purpose of the independence clause with regard to Commissions and Independent Offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government. Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of individual. The Constitution established the several Independent Commissions, alongside the Judicial Branch, entrusting to them special governance mandates of critical importance in the new dispensation; they are the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights and public participation. The several Independent Commissions and Offices are intended to serve as people s watchdogs and to perform this role effectively, they must operate without improper influences, fear or favour: this indeed, is the purpose of the independence clause. 60. it means that the Commissions and Independent Offices, in carrying out their functions, are not to take orders or instructions from organs or persons outside their ambit. (Underlining added). 23. It is clear from the above, that the law in Kenya is that the Courts have a duty to recognize and uphold the independence of Commissions such as the 1 st Respondent and to allow them space and opportunity to carry out their mandate as long as they carry out their functions in accordance with the Constitution and the relevant legislation. It is critical to note that the Supreme Court recognized that in carrying out its functions, Independent Page 18 of 27

19 Commissions do so on behalf of the general populace and in the public interest. This is in recognition of the fact that the 1 st Respondent and other Independent Commissions were established by the people of Kenya and entrusted with the role of carrying out defined functions on their behalf. 24. It is the 1 st and 2 nd Respondents humble submission that the Respondent s exercise of its Constitutional and statutory prerogative cannot be impeded or interrupted in the manner proposed by the Petitioner. As explained in Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others [2016] eklr : It is our view that the three arms of the Government are under a Constitutional obligation to protect the sovereignty of the people, and to achieve this, they must protect those organs through which sovereignty is expressed such as the Commissions, Independent Offices and the principle of devolution. To fail to do so either by action or inaction is an abdication of their Constitutional mandate Under Article 255 of the Constitution, an amendment relating to the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies can only be done in a referendum. That clearly shows the importance the people of Kenya attached to these Commissions. In fact this importance is emphasized by the fact that the people of Kenya were of the view that these Commissions were important for the protection of their sovereignty In our view any act or omission whose effect is geared towards crippling the actions of any Constitutional Commission or independent office cannot be justified on the ground of public interest since as we have held herein below public interest Page 19 of 27

20 is reflected in the Constitution and the legislation (Underlining added). 25. The 1 st Respondent is an independent organ and this Court cannot be invited to interrogate the 1 st Respondent s internal decisions and functions unless it is shown that its conduct is in contravention with the Constitution. 26. As regards the alleged expression of personal views and resignation of one of the Commissioners of the 1 st Respondent, it is the 1 st and 2 nd Respondents humble submission that the 1 st Respondent was at all times properly constituted and indeed performed its mandate through decisions collectively made through plenary and not on the basis of the personal views of any of its members. Article 250 (1) of the Constitution provides that each constitutional commission, the 1 st Respondent included, shall consist of at least three, but not more than nine members. Section 5 of the Independent Electoral and Boundaries Commission Act, 2011 ( IEBC Act ) provides that the 1 st Respondent shall consist of a chairperson and six other members appointed in accordance with article 250 (4) of the Constitution and the provisions of the act. Pursuant to section 7A of the IEBC the office of the Chairperson or a member of the 1 st Respondent shall become vacant if the holder resigns from office by notice in writing addressed to the president. Despite the vacancies contemplated, section 7 (3) provides that the 1 st Respondent shall be properly constituted notwithstanding a vacancy in its membership. It follows that the 1 st Respondent was for all intents and purposes properly constituted to conduct the fresh elections. 27. It is the 1 st and 2 nd Respondents humble submission that the contention by the Petitioner that the 1 st and 2 nd Respondent ought to have complied with NASA s irreducible minimums or that the position taken by Dr. Akombe were binding on the 1 st Respondent are misconceived and ought to be disregarded. Issue No. 5: Alleged change of applicable laws midway through the elections and the question of whether section 83 of the Elections Act is unconstitutional Page 20 of 27

21 28. Contrary to the Petitioner s allegations, it is a matter of public notoriety that the amendments to the Election Law vide the Election Laws (Amendment) Bill (National Assembly Bill No. 39 of 2017) did not come into force until after the fresh presidential elections and the 1 st and 2 nd Respondent did not take into consideration those laws. 29. The new amendments referred to by the Petitioner are in any event currently the subject of proceedings commenced by the same Petitioner in High Court Petition No. 543 of 2017, Okiya Omtatah Okoiti vs The Attorney General as well as Petition No. 548 of 2017, Katiba Institute and another v The Attorney General and Petition No. 551 of 2017, Dan Ouma Ochieng v The Hon. Attorney General & another. Authority a) In the matter of the Principle of Gender Representation in the National Assembly and the Senate, Supreme Court Appeal No. 2 of 2012 this Honourable Court stated as follows at p. 9 para. 17: only a truly deserving case will justify the court s advisory opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first instance court litigation. only by due deference to the assigned jurisdiction of the different courts, will the Supreme Court rightly hold its mandate prescribed in section 3 (c) of the supreme court act, 2011 of developing rich jurisprudence that respects Kenya s rich history and traditions and facilitates its social, economic and political growth. 30. Based on the foregoing it is the 1 st and 2 nd Respondents humble submission that this aspect of the Petitioner s case is yet again misconceived and that the jurisdiction of this Honourable Court has been wrongly and prematurely invoked. 31. As regards the Petitioner s invitation for this Court to consider the constitutionality of Section 83 of the Elections Page 21 of 27

22 Act, it is the 1 st and 2 nd Respondents humble submission that the prayer is misconceived as this Honourable Court lacks jurisdiction to do so in the first instance. 32. Without prejudice to the foregoing and in any event, the issue relating to section 83 of the Elections Act is res judicata and/or caught up by the doctrine of issue estoppel as the validity of Section 83 of the Elections Act was considered and determined by the Supreme Court in the context of the 2013 Raila Case and in Petition No. 1 of Issue 6: The issue of the elections having not been conducted in certain areas of the country 33. The law, in Section 55B (1) (a) of the Elections Act contemplates that in certain instances it may not be possible to conduct an election in some areas due to a number of reasons, including on account of security considerations if there is reason to believe that a serious breach of peace is likely to occur if the elections is held on the scheduled date. The said section provides that the 1 st Respondent may in such instances postpone the elections exercise which shall subsequently be held at the earliest practicable time. 34. Section 11 of the Elections Act prohibits the use of force (a) to induce or compel a person to support a particular candidate or party; (b) on account of such person having voted or refrained from voting; or (c) in order to induce or compel that person to vote in a particular way or refrain voting. As such, while the decision by the 2 nd Interested Party not to participate in the elections may enjoy legal protection, the deliberate impeding of the elections through violent means is indefensible. 35. Pursuant to section 55B (2) of the Elections Act the 1 st Respondent may, if satisfied the results of the elections will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made. Regulation 64A of the Elections (General) Regulations restates and Page 22 of 27

23 operationalizes the provisions of section 55B (2) of the Elections Act. 36. As demonstrated in the Replying Affidavit of Mahamud Jabane sworn on 7 th November, 2017, the 1 st Respondent liaised with the security agencies to establish the actual security arrangement and to get advice as to whether or not the security concerns could be mitigated prior to making the decision for postponement of elections in affected areas. 37. Article 138 (4) provides for that a candidate shall be declared elected as president if the candidate receives, (1) more than half of the votes cast and (2) at least 25% of the votes cast in each of more than half of the counties. In prescribing the threshold for a winner being declared president-elect, the Constitution does not refer to constituencies but rather to counties. It is the 1 st and 2 nd Respondents humble submission that the election cannot be faulted or invalidated for the sole reason that the election was not held in each constituency especially in a situation where, as in this case, it has been shown that the 1 st Respondent had made all arrangements and used its best endeavours to conduct elections in all the constituencies. The failure to hold elections in some constituencies was as a result of security concerns the cause and effect of which is the public domain. Authority a) In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & another, Civil Appeal No of 2007, the Supreme court of India, in a case where a group of voters purported to have an election invalidated owing to an alleged low voter turnout stated that: all voters do not always go to the polls. Voting in India is not compulsory, and therefore, no minimum percentage of voters has been prescribed either for treating an election in a constituency as valid or for securing the return of the candidate at the election. the voters may not turn up in large numbers to cast their votes for variety of reasons such as agitation going on in the state concerned on national/and or regional issues or because of boycott call given by Page 23 of 27

24 some of the recognized state parties, in wake of certain political developments in the state or because of disruptive activities of some extremist elements etc. it is common knowledge that voting and abstention from voting as also the pattern of voting, depend upon complex and variety of factors, which may defy reasoning and logic. Issue No. 7: Public Interest militates against the grant of the orders sought 38. As detailed in the Affidavit of Mahamud Jabane the 1 st Respondent put in place the necessary infrastructure for the fresh presidential election held on 26 th October, The allegation by the Petitioners that the 1 st Respondent did not take steps to ensure that the fresh election will be conducted in accordance with the dictates of the Constitution and the Electoral laws is false and misleading. 39. This Honourable Court is being invited by the Petitioner to make sweeping and disproportionate orders which portend far reaching ramifications to the nation at large. Even if this Honourable Court finds that the Petitioner is properly before it, it is our humble submission that public interest considerations militate against granting the orders sought. CONCLUSION 40. It is clear from the foregoing submissions that: a) The Honourable Court lacks jurisdiction to entertain the Petition and that the Honourable Court s special jurisdiction has been wrongly and prematurely invoked. b) The Petitioner s view that the fresh presidential elections under article 140(3) of the Constitution ought to have been preceded by nominations is not only legally unfounded but also practically impossible. c) The Petitioner s allegation to the effect that the 2 nd Interested Party s purported withdrawal from the 26 th Page 24 of 27

25 October 2017 election triggered Article 138 (8) (b) as read together with Article 138 (9) of the Constitution is misconceived, without legal basis and ought to be rejected. d) The far-reaching orders sought by the Applicant in relation to the operational aspects of the 1 st Respondent s mandate would result in an unjustifiable interference with the 1 st Respondent s constitutional independence without any cogent basis. e) It is a matter of public notoriety that the amendments to the Election Law vide the Election Laws (Amendment) Bill (National Assembly Bill No. 39 of 2017) did not come into force until after the elections and as such, did not affect the manner in which the presidential election of 26 th October 2017 was conducted. f) The Petitioner s invitation for this Court to consider the constitutionality of Section 83 of the Elections Act is misconceived as this Honourable Court lacks jurisdiction to do so in the first instance and is res judicata. g) The Petition is an abuse of the court process to the extent that it deceitfully seeks orders that are specific to Presidential Election Petitions without invoking this Honourable Court s special jurisdiction and in a bid to circumvent the Supreme Court (Presidential Election Petition) Rules, h) Public interest considerations militate against granting the far-reaching orders sought in the absence of cogent legal basis. The 1 st and 2 nd Respondents urge that the Petition be dismissed with costs. Respectfully submitted. DATED at NAIROBI this 7 th day of November 2017 Page 25 of 27

26 ISEME, KAMAU & MAEMA ADVOCATES FOR THE 1 st and 2 nd RESPONDENTS DRAWN & FILED BY: ISEME, KAMAU & MAEMA ADVOCATES IKM PLACE, 5 TH FLOOR 5 TH NGONG AVENUE, OFF BISHOP ROAD P O BOX NAIROBI [REF: IND ] Tel: / / ; info@ikm.co.ke TO BE SERVED UPON: 1. OKIYA OMTATAH OKOITI ROOM 4, FLOOR B1, WESTERN WING NSSF BUILDING P.O. BOX 60286, NAIROBI 2. H.E. UHURU KENYATTA C/O OGETTO, OTACHI & COMPANY ADVOCATES 7 TH FLOOR, SIFA TOWERS LENANA ROAD/RING ROAD, KILIMANI P. O. BOX NAIROBI 3. RT. HON. RAILA ODINGA 4. DR. EKURU AUKOT JOHN C/O MUTUMA GICHURU & ASSOCIATES ADVOCATES SUITE NO. 2, CHAKA APARTMENTS CHAKA ROAD P. O. BOX NAIROBI 5. DIDA MOHAMED ABDUBA C/O ONDABU & CO. ADVOCATES SUITE NO. 312, 3RD FLOOR, SOUTH WING Page 26 of 27

27 UTALII HOUSE, UTALII LANE P. O. BOX NAIROBI 6. MWAURA MICHAEL WAINAINA C/O J. HARRISON KINYANJUI & CO. ADVOCATES SUITE 416, 4 TH FLOOR ST. ELLIS HOUSE WABERA STREET P O BOX NAIROBI 7. NYAGAH JOSEPH WILLIAM NTHIGA 8. KALUYU JAPHETH KAVINGA C/O KIRAGU WATHUTA & COMPANY ADVOCATES SUITES B3, DAPHTON COURT RIVERSIDE DRIVE P. O. BOX TH FLOOR, SHERIA HOUSE NAIROBI 9. SHAKHALAGA KWA JIRONGO 2 ND FLOOR, MAYFAIR SUITES PARKLANDS ROAD NAIROBI Page 27 of 27