REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI ELECTION PETITION NO. 4 OF 2017 BETWEEN NJONJO MUE.... 1 ST PETITIONER KHELEF KHALIFA......2 ND PETITIONER AND THE CHAIRPERSON OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION......1 ST RESPONDENT INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...2 ND RESPONDENT H. E. UHURU MUIGAI KENYATTA........3 RD RESPONDENT NATIONAL SUPER ALLIANCE COALITION (NASA)....4 TH RESPONDENT THE 4 TH RESPONDENT S RESPONSE TO PETITION In response to the Petition, the 4 th Respondent states THAT: A. INTRODUCTION 1. Save as to deny the generalized and specific averments levelled against it, the 4 th Respondent wishes to respond in support of the Petition herein as hereunder below: 2. The 4 th Respondent s address of service for the purposes of this petition is care of MURUMBA & AWELE ADVOCATES, MIRAGE PLAZA, MEZZANINE 1, UNIT 7, WESTLANDS, CHIROMO ROAD and of P.O BOX 22255-00505, NAIROBI. 3. The 4 th Respondent, National Super Alliance Coalition (NASA) is a coalition of political parties namely Orange Democratic Movement (ODM), Page 1 of 21
WIPER, Amani National Congress (ANC), Chama Cha Mashinani (CCM), Ford Kenya among others. 4. The 4 th Respondent participated in the general elections held on 8 th August, 2017 wherein it nominated Hon. Raila Amollo Odinga (a nominee of Orange Democratic Movement) and Hon. Steven Kalonzo Musyoka (a nominee of Wiper Democratic Movement) as it s presidential and deputy presidential candidate respectively to contest for the presidential seat. 5. On 7 th November, 2017; the Petitioners herein filed the present petition challenging the purported presidential elections held on 26 th October, 2017 on the grounds enumerated in the petition. The 4 th Respondent supports the petition in toto save for the specific and particular allegations made against the 4 th Respondent, its members and supporters. B. LEGAL POSITION 6. On 1 st September, 2017 the Supreme Court delivered its decision invalidating the presidential elections held on 8 th August, 2017 wherein the 3 rd Respondent had been declared as the winner; and directed the 2 nd Respondent to conduct fresh presidential elections within 60 days. The Court held: (iii) A declaration is hereby issued that the 3 rd respondent was not validly declared as the President elect and that the declaration is invalid, null and void; (iv) An Order is hereby issued directing the 1 st respondent to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination of 1st September 2017 under Article 140(3) of the Constitution. 7. This Honourable court having ordered the 2 nd Respondent to conduct fresh elections in accordance with the Constitution and the applicable election law; the candidates, supporters and members of the 4 th Page 2 of 21
Respondent were hopeful that the 1 st and 2 nd Respondents would conduct genuine elections adhering to the general principles of elections as outlined under Article 81 of the Constitution which is to the effect that the electoral system shall comply with the following principles among them being: freedom of citizens to exercise their political rights under Article 38; universal suffrage based on the aspiration for fair representation and equality of vote; and free and fair elections which are by secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner. 8. Article 38 of the Constitution sets out the mechanism and framework by which the sovereign people of Kenya exercise their sovereign will under Articles 1 and 4 of the Constitution. Article 38 provides that: (1) Every citizen is free to make political choices, which includes the right (a) (b) (c) to form, or participate in forming, a political party; to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause. (2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for (a) any elective public body or office established under this Constitution; or (b) any office of any political party of which the citizen is a member. (3) Every adult citizen has the right, without unreasonable restrictions Page 3 of 21
(a) (b) (c) to be registered as a voter; to vote by secret ballot in any election or referendum; and to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office. 9. Article 81 and 86 of the Constitution states that: 81. The electoral system shall comply with the following principles (a) freedom of citizens to exercise their political rights under Article 38; (b) not more than two-thirds of the members of elective public bodies shall be of the same gender; (c) fair representation of persons with disabilities; (d) universal suffrage based on the aspiration for fair representation and equality of vote; and (e) free and fair elections, which are (i) by secret ballot; (ii) free from violence, intimidation, improper influence or corruption; (iii) conducted by an independent body; (iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountable manner. 86. At every election, the Independent Electoral and Boundaries Commission shall ensure that Page 4 of 21
(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; (b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; (c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and (d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials. 249. (1) The objects of the commissions and the independent offices are to (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism. (2) The commissions and the holders of independent offices (a) are subject only to this Constitution and the law; and (b) are independent and not subject to direction or control by any person or authority. 10. Section 7 of the Code of Conduct for Political Parties, Regulation 3 and 6 of the Electoral Code of Conduct states that a political party shall not engage and encourage violence, intimidation, use public resources, establish or maintain a para-military force, militia and use state resources for partisan campaigns. Page 5 of 21
C. FACTUAL BACKGROUND 11. The 4 th Respondent through its presidential candidate successfully challenged the presidential elections conducted on 8 th August, 2017 in SUPREME COURT PRESIDENTIAL ELECTION PETITION NO.1 OF 2017: RAILA ODINGA & ANOTHER VERSUS- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & OTHERS; the 1 st and 2 nd Respondents having conducted elections and declared the 3 rd Respondent as the president elect on 11 th August, 2017. 12. In its decision delivered on 1 st September, 2017 and the entire judgement as read on 20 th September, 2017; this Honourable court invalidated the presidential elections held on 8 th August, 2017 for reasons, among others that the elections were not conducted in accordance with the Constitution and the relevant electoral laws and that the 2 nd Respondent had committed electoral illegalities. The court ordered fresh presidential elections to be conducted within 60 days from the date. 13. Immediately thereafter, the 1 st Respondent issued a press statement requesting, among other things, the Director of Public Prosecution to commence investigations and prosecutions of any officers/members of the 2 nd Respondent who has committed election offences. To date, no prosecutions or investigations have been lodged against any of the said members. 14. On 5 th September, 2017 the 1 st and 2 nd Respondents vide Gazette Notice No.8751 of 2017 gazetted the 3 rd Respondent, Uhuru Muigai Kenyatta and Hon. Raila Amollo Odinga as the presidential candidates. Furthermore, the 1 st and 2 nd Respondents acted upon the advice of the Cabinet Secretary for Education and Acting Cabinet Secretary for Internal security, Hon. Fred Matiangi; and gazetted 17 th October, 2017 as the set date for the presidential elections absent any consultations with the 4 th Respondent s on a suitable/agreeable date for conducting the presidential elections! 15. On 5 th September, 2017 the 2 nd Respondent issued a memo to the CEO of the 1 st Respondent, Ezra Chiloba raising grave issues regarding the illegalities that were committed in the invalidated presidential elections Page 6 of 21
and he sought answers on the same. The said Memo had also named some officers namely James Muhati, Paul Mugo and Boniface Wamae, for committing election offences by creating unauthorised accounts in the name of the 1 st Respondent. The memo was subsequent thereto disowned by other members of the Commission who stated that the said Memo does not reflect the position of all the members of the 1 st Respondent. 16. Further subsequent to the disownment by the other Commissioners of the 2 nd Respondent, the 2 nd Respondent rounded up all its officers and commissioners to a retreat at Naivasha that was meant to address the issues. In a press release dated 11 th September, 2017 issued after the said retreat, the 1 st Respondent abandoned his attempts at making the 2 nd Respondent and his officers accountable and explained away the illegalities and irregularities as implementation challenges. The 1 st Respondent in fact confirmed the CEO Ezra Chiloba, who he had previously held responsible for the illegalities and irregularities as the person to take full charge of the preparation for the intended new elections. 17. In the aforesaid Press Release, the 1 st and 2 nd Respondents intimated to the public their intentions to proceed on with the preparations of the poll on 17 th October, 2017. 18. The 4 th Respondent was concerned that the 2 nd Respondent was proceeding with a new election without addressing the illegalities and irregularities and on 12 th September, 2017 it issued a position paper calling for reforms of the electoral process which was termed as irreducible minimum before fresh elections are held. 19. The 1 st Respondent reacted to the 4 th Respondent s position vide a letter dated 10 th October, 2017 addressed to the 4 th Respondent. In its response, the 1 st Respondent brushed off the concerns of the 4 th Respondent, and in effect reiterated that the 2 nd Respondent would conduct the new elections in the same way it had conducted elections on 8 th August, 2017. Page 7 of 21
20. Meanwhile, the Director of Public Prosecutions thereafter responded and directed the Director of Criminal Investigations and the Secretary of the Ethics and Anti-Corruption Commission to conduct investigations within 21 days with the intent to prefer charges where necessary. 21. Similarly, no action has ever been taken so far. The 4 th Respondent believes that all the officers of the 2 nd Respondent, who had committed illegalities on the 8 th August, 2017 remained in the employ of the 2 nd Respondent and prepared and presided over the polls of 26 th October, 2017. 22. The 1 st and 2 nd Respondents unilaterally altered the set date for presidential elections from the 17 th October, 2017 to 26 th October, 2017. 23. On 10 th October, 2017 citing among other issues bad faith and failure by the 1 st and 2 nd Respondent to meaningfully engage and implement reforms and changes the 4 th Respondents had suggested aimed at creating a level playing field for all the Presidential candidates, the 4 th Respondent intimated their decision to abandon the 26 th October, 2017 elections. On the said date, Raila Amolo Odinga and Kalonzo Musyoka communicated their decision to the 1 st and 2 nd Respondent notifying them of their abandonment from the elections. 24. On 17 th October, 2017, Commissioner Roselyn Akombe one of the Commissioners of the 2nd Respondent publicly resigned and issued a public statement from New York citing the challenges the 1 st and 2 nd Respondents were facing in preparation of the 26 th October, 2017 elections. In her statement, she said: We need the Commission to be courageous and speak out, that this election as planned cannot meet the basic expectations of a CREDIBLE election. Not when the staff are getting last minute instructions on changes in technology and electronic transmission of results. Not when in parts of country, the training of presiding officers is being rushed for fear of attacks from protestors. Not when Commissioners and staff are intimidated by political actors and protestors Page 8 of 21
and fear for their lives. Not when senior Secretariat staff and Commissioners are serving partisan political interests. Not when the Commission is saddled with endless legal cases in the courts, and losing most of them. Not when legal advice is skewed to fit partisan political interests. The Commission in its current state can surely not guarantee a credible election on 26 October 2017. I do no want to be party to such a mockery to electoral integrity. 25. Thereafter, the 1 st Respondent issued a public statement citing the challenges he and the 2 nd Respondent were facing and admitted further that he could not guarantee free, fair and credible elections. 26. Subsequently, still in October, 2017, the 1 st and 2 nd Respondents changed their position in regard to the abandonment by Raila Amolo Odinga and Kalonzo Musyoka and alleged that it was not proper and declined to remove their names from the ballot papers and the statutory results declaration Forms and other election materials that were used on 26 th October, 2017. 27. On or about 2 nd October, 2017, the 4 th Respondent contends that the 3 rd Respondent and his agents and proxies lodged a number of suits, namely; NRB PETITION NO.490 OF 2017: HON. DAVID PKOSING VERSUS- NATIONAL SUPER ALLIANCE (NASA) AND OTHERS and an application in PRESIDENTIAL ELECTION PETITION NO. 1 OF 2017: RAILA AMOLO ODINGA AND ANOTHER VERSUS- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND OTHERS intended to compel Raila Amolo Odinga and Kalonzo Musyoka to participate in the elections of 26 th October, 2017. 28. The aforesaid application for Contempt is pending before this Honourable Court however, the other Petition by Honourable David Pkosing was dismissed and through a Judgment delivered on 24 th October, 2017 by Mwita J., the Learned Judge appreciated that no person can be Page 9 of 21
compelled to run in an election. The Learned Judge rendered the opinion that: [62] Finally, I must point out that during the hearing of the petition even in the absence of the 1 st to 9 th respondents, all counsel present from Mr. Kibe Mungai, Mr. Wambua Kilonzo, Miss Gitiri to Mr. Macharia were unanimous that no one can be forced to run in an election. With that concession I do not know how this Court, even if it were to assume jurisdiction, could have forced the 6 th and 7 th Respondents to comply with the judgment of the Supreme Court even though they were the successful parties before that Court by running in the fresh election. To my mind no Court can force a citizen, or a person for that matter, to exercise his or her rights and fundamental freedoms. [63] In the same breath, Article 38 of the Constitution grants citizens the right to make political choices. Under sub Article (3) (c), an adult citizen has a right to be a candidate for a public office or office within a political party and if elected to hold that office. That is a political choice to be made by the citizen. It is his basic right and fundamental freedom that can only be enjoyed and exercised by the individual, and no one, not even by an order of this Court can force or coerce one to exercise the right. That would in itself be a violation of the person s right to make a choice. [64] In conclusion therefore, having given due consideration to this matter, I am not satisfied that it meets the threshold of a constitutional petition. The issues raised in therein though couched as constitutional questions fall outside the mandate of this Court. The upshot is that the petition dated 2 nd October, 2017 falls by the wayside and is dismissed with no order as to costs. Page 10 of 21
29. Despite the foregoing events, the 1 st and 2 nd Respondents conducted polls on 26 th October, 2017 and declared the 3 rd Respondent as the president elect on 30 th October, 2017. 30. It is the 4 th Respondent averment that the actions of the 1 st, 2 nd and 3 rd Respondents herein greatly compromised the integrity of electoral process and curtailed the political rights of Kenyans for reasons that: a) There was lack of free, fair and credible elections free from violence, intimidation, corruption an improper influence. b) There was lack of independence, impartiality and neutrality on the part of the Independent Electoral and Boundaries Commission. a) LACK OF FREE, FAIR AND CREDIBLE ELECTIONS FREE FROM VIOLENCE, INTIMIDATION, CORRUPTION AN IMPROPER INFLUENCE 31. Since 8 th August, 2017 the 3 rd Respondent and his agents consistently created a voting environment of intimidation of the 4 th Respondent s supporters. 32. Upon invalidation of the presidential election held on 8 th August 2017 by this Honourable court; the 3 rd Respondent and his agents/allies set up an elaborate systematic policy to ensure that the fresh Presidential Election to be held on 26 th October, 2017 was not conducted in a free, fair and credible manner. Towards this end, the 3 rd respondent and his agents deployed violence, intimidation, improper influence and corruption and more so upon the voters especially those perceived to be supporters of the 4 th Respondent. i) Violence and intimidation 33. The 4 th Respondent contends that the 3 rd Respondent and his agents and through the State, instigated violence and threats upon the 4 th Respondent s principals; supporters and followers. Page 11 of 21
34. On the 1 st September, 2017 while addressing a public gathering at Burma market, the 3 rd Respondent issued insults against judges of the Supreme court of Kenya who had voted to annul the 8 th August, 2017 and stated that the Judges who annulled the elections cannot decide who will be president in Kenya and further stated that when the election issue was over he would deal with them. In addition, he said that after the campaign he would sort out those judges. 35. On the aforesaid address, the 3 rd Respondent personally castigated the Chief Justice and said that the Chief Justice and his fellow thugs had in annulling the 8 th August 2017 elections overturned the will of the Kenyan people and said that the Chief Justice should know that he was dealing with a president in full charge who was ready to deal with his enemies. 36. On 2 nd September, 2017 while meeting newly elected representatives of the jubilee party, the 3 rd Respondent continued with his threats against judges of the Supreme Court and reiterated that he would deal with them saying that he will revisit the issue. 37. Prior to issuing threats against the judiciary, the 3 rd Respondent had unleashed a reign of terror against members and supporters of the 4 th Respondent beginning the 8 th August, 2017. 38. Various reports done by independent human rights groups have detailed how the National Police Service deliberately targeted members and supporters of the 4 th Respondents and subjected them to extra judicial killing, maiming, rape, destruction of property and the deliberate use of excessive and unreasonable force. Among the Reports include: a) Kenya National Human Rights Commission titled Mirage at dusk. b) Report by Amnesty International titled Kill those criminalssecurity forces violations in Kenya s August 2017 elections c) Two reports by Elections Observations Groups (ELOG) titled ELOG Statement on the prevailing electoral environment and Page 12 of 21
ELOG Statement on the 26 th October 2017 fresh presidential elections. d) Report by Independent Medical Legal Unit (IMLU) titled Press statement on public order management in the August and October 2017 general elections. 39. Further in the period after 8 th August, 2017, there was widespread and unprecedented deployment of National Police Service Officers in the various areas perceived to be the strongholds of the 4 th Respondent. 40. The 4 th Respondent contends that the purpose of this reign of terror was to intimidate its members and supporters and discourage them from fighting for electoral justice and from participating in the repeat elections ordered by the Supreme court. 41. To further support the National Police Service in establishing a reign of terror, the 3 rd respondent and his agents contracted the use of militia styling itself as Nairobi Business Community which was a sanitized tag for the former mungiki organisation, a terrorist group. 42. The foregoing was further fortified by the fact that the acting Cabinet Secretary in charge of interior coordination and national government, Hon. Fred Matiangi, in the presence of the 3 rd Respondent instructed members of the Chinkororo terrorist group in Kisii and Nyamira counties to attack members and supporters of the 4 th Respondent. 43. An organisation of women supporters of the 3 rd Respondent styling themselves as the Jubilee Womens Brigade held gatherings in various parts of the Republic of Kenya during which they adopted military mannerisms eg salutes and engaged in the taking of public pledges to ensure an electoral victory for the 3 rd Respondent. 44. The 4 th Respondent further avers that during these meetings of the Jubilee womens brigade, agents of the 3 rd Respondent administered oaths on women committing them to ensure that the 3 rd Respondent was declared president after the polling on 26 th October, 2017. Page 13 of 21
45. The 3 rd Respondent and his agents including the police embarked in the violent break-up of the 4 th Respondent s gatherings and meetings and through the acting Cabinet Secretary for Interior Coordination, one Mr. Fred Matiangi, issued a ban on the peaceful assemblies and gatherings of the 4 th Respondent. 46. The 3 rd Respondent through the acting Cabinet Secretary for the Ministry for Interior Coordination and National Government, Dr. Fred Matiangi, withdrew the police officers providing security for Honourable Raila Amolo Odinga and Honourable Kalonzo Musyoka. 47. The reasons given for the withdrawal was that the two leaders were holding press conferences and holding political rallies which is a central activity in an election process. 48. It is the 4 th Respondent s case that as a result of the foregoing cited events, the said Hon. Raila Amolo Odinga and Hon. Kalonzo Musyoka could not engage in campaigns freely and extensively as their security was compromised. ii) IMPROPER INFLUENCE AND CORRUPTION 49. It is the 4 th Respondent s other contention that the 3 rd Respondent also employed improper influence and corruption to sway persons who had voted for the 4 th Respondents candidate into supporting the 3 rd Respondent in the poll of 26 th October, 2017. The methods used in swaying the supporters of the 4 th Respondent included the mobilization of public officers in political campaigns and the use of state resources and premises particularly the State houses of Nairobi and Nakuru; and the use of public school buses to transport delegations from their destinations to the said State Houses. 50. Thus, the 3 rd Respondent and his agents received various delegations of leaders at State House Nairobi and the State Lodge at Nakuru. For instance, the a) Akamba delegation State House Nairobi b) Bukusu delegation State House Nairobi c) abagusii delegation at State Page 14 of 21
House Nakuru d) Maa delegation at state house Nairobi e) Kuria delegation at statehouse Nairobi f) Kajiado delegation a State House Nairobi showing their visits to Statehouses). 51. The 3 rd Respondent also engaged in corrupt enticement of politicians who are members of the 3 rd Respondent in order to sway them to shift their loyalty from the 4 th Respondent to the 3 rd Respondent. The enticement was corrupt and was based on the statements made by the 3 rd Respondent at a Rally in Meru where he intimated that he had obtained the support of one Peter Munya by an agreement to offer him a job in his government as a reward for changing his allegiance from the 4 th Respondent. 52. Some of the politicians enticed by the 3 rd Respondent to shift allegiance from the 4 th Respondent are Moses Akaranga from Vihiga County, Alfred Khangati from Bungoma county, Isaac Ruto from Bomet County, Hassan Omar from Mombasa County, Dr. David Nkedianye from Kajiado County, Joseph Tiampati from Narok County. 53. On 10 th October, 2017 after evaluating the atmosphere of violence and intimidation that had been created by the 3 rd Respondent, and the failure of the 1 st and 2 nd Respondent to meaningfully engage and implement reforms and changes the 4 th Respondents had suggested, aimed at creating a level playing field for all the Presidential candidates, the 4 th Respondents resolved to withdraw its candidate from the presidential race and on that day Honourable Raila Amolo Odinga and Honourable Kalonzo Musyoka wrote to the 1 st and 2 nd Respondent notifying them of their abandonment of their presidential quest in the 26 th October, 2017 elections. 54. The 4 th Respondents contend that the actions by the 1 st, 2 nd and 3 rd Respondents largely compromised the integrity of the process and undermined the rights of the 4 th Respondents and its members and supporters. Page 15 of 21
b) LACK OF INDEPENDENCE, IMPARTIALITY AND NEUTRALITY ON THE PART OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION 55. It is the 4 th Respondent s contention that in the preparation, conduct and supervision of the 26 th October, 2017 Presidential Elections, the 1 st and 2 nd Respondents were largely manipulated and intimidated by internal and external forces to ensure the delivery of a pre-determined election outcome. 56. The 4 th Respondent avers that the 1 st and 2 nd Respondent at all material times acted in a biased, partisan manner with acts aimed at favouring the 3 rd Respondent herein and as a result, at all material times there was no level playing ground for all the Presidential Candidates. 57. In the preparation, conduct and supervision of the 26 th October, 2017 elections, the 1 st and 2 nd Respondents did not act independently and were influenced and manipulated and as a result, they did not act independently and failed to act in an impartial, neutral and accountable manner. i) IMPROPER INTERNAL INFLUENCE AND MANIPULATION 58. The 1 st Respondent was marred with internal wrangles and divisions which compromised the independence of the Commission and resulted to partisanship moreover among the Commissioners. 59. The wrangles and internal feuds played out and surfaced in the public domain and thereby undermined the confidence of the members of the public towards guaranteeing credible elections. 60. In his statement issued to the general public on 18 th October, 2017 the 1 st Respondent acknowledged such wrangles and challenges and noted thus (at page 5): I have made this point on numerous occasions to my colleagues at the Commission. I have made several attempts Page 16 of 21
to make critical changes but all my motions have been defeated by a majority of the Commissioners. Under such conditions, it is difficult to guarantee free fair and credible elections. I am convinced that without critical changes in key Secretariat staff, we may not have a free, fair and credible election. I ask the staff who have been adversely mentioned to step aside and allow the project team to function without interference 61. In her Press Statement issued by Dr. Roselyne Akombe on 17 th October, 2017 while in New York, the said Commissioner also alluded to the challenges and influences upon the Commission. She asserted thus: It has become increasingly difficult to continue attending plenary meetings where Commissioners come ready to vote along partisan lines and not to discuss the merit of issues before them. It has become increasingly difficult to appear on television to defend positions I disagree with in the name of collective responsibility. I have concluded that I am no longer making any significant contribution to the Commission and to my country as a Commissioner We need the Commission to be courageous and speak out, that this election as planned cannot meet the basic expectations of a CREDIBLE election. Not when the staff are getting last minute instructions on changes in technology and electronic transmission of results. Not when in parts of the country, training of presiding officers is being rushed for fear of attacks from protestors. Not when Commissioners and staff are intimidated by political actors and protestors and fear for interests. Not when senior Secretariat staff and Commissioners are serving partisan political interests ii) Improper external influence and manipulation 62. The 4 th Respondent avers that the 1 st and 2 nd Respondents were unduly and improperly influenced by external factors and sources. Page 17 of 21
63. The 1 st and 2 nd Respondents were at all material times prior to the 26 th October, 2017 elections receiving partisan legal advice. During the period between 8 th August, 2017 to 26 th October, 2017, the 2 nd Respondent maintained and retained the services of Mr. Evans Monari, who is the Counsel for the 3 rd Respondent to advise it and acted on his legal advice while knowing he was the 3 rd Respondent s Advocate. Furthermore, he offered legal advice to the 1 st and 2 nd Respondent and the 1 st Respondent in a statement issued on 18 th October, 2017, subsequent to the said retainer complained that he was being forced to receive partisan legal advice and acknowledged that the 2 nd Respondent was as well receiving partisan legal advice. In the said statement the 1 st Respondent asserted thus (at page 6): As a lawyer, I cannot continue to be pushed by majority Commissioners to accept legal opinions that serve partisan interests and are not grounded in the Constitution or the law. In the least, this is intellectual dishonesty for which my professional training demands that I abhor. I would rather bow out with my name intact and my head lifted high than to be a part of a process where personal interests dwarf the interest of the nation. I realize that my actions in this noble office will define me for life 64. Prior to the 1 st Respondent s statement to the public, Dr Roselyne Akombe also alluded to the improper external influence from the legal team. She pointed out thus: Not when the Commission is saddled with endless legal cases in the courts, and losing most of them. Not when legal advice is skewed to fit partisan political interests. The Commission in its current state can surely not guarantee a credible election on 26 th October, 2017. I do not want to be party to such a mockery to electoral integrity. 65. The 4 th Respondent further avers that there were improper external influences from foreign envoys giving comfort to the 1 st and 2 nd Respondent despite their continued inability to deliver free, fair and Page 18 of 21
credible elections and who kept on imploring the 1 st and 2 nd Respondents to conduct the elections on 26 th October, 2017 even despite the 1 st Respondent admitting that he could not guarantee free, fair and credible elections. 66. The 4 th Respondent avers that the 1 st Respondent in his address to the public issued on 18 th October, 2017 admitted that he could not guarantee free, fair and credible elections but two days later, Western envoys announced that they believed that the 1 st and 2 nd Respondents would hold credible elections. In the said belief, the 1 st and 2 nd Respondents proceeded on with the elections on 26 th October, 2017. 67. It is the 4 th Respondent s other contention that the 1 st and 2 nd Respondents were at all material times influenced by the 3 rd Respondent and his agents in that the Deputy President continued to give public statements akin to defending and conducting the public relations affairs of the 1 st and 2 nd Respondents. 68. The 4 th Respondent contends that Article 81 of the Constitution mandates the 1 st and 2 nd Respondent to observe and adhere to the general principles of elections which include that the electoral system complies with the principle that elections are transparent, conducted by an independent body and administered in an impartial manner. 69. By failing to adhere and affirm to its independence, the 1 st and 2 nd Respondents acted in a partial and partisan manner and hence contrary to the provisions of Article 81 of the Constitution. 70. The 4 th Respondent further avers that as was correctly pointed out by this Honourable Court, an election is a process and as such, it ought to be conducted in an environment that adheres to the dictates of the Constitution. 71. Election is a process that must be conducted in an environment that is free from interference, manipulation, intimidation, violence and improper influence. Page 19 of 21
72. By failing to adhere and affirm to its independence, the 1 st and 2 nd Respondents acted in a partial and partisan manner contrary to the provisions of Article 81 of the Constitution. WHEREFORE the 4 th Respondent prays that it be determined that the 3 rd Respondent was not duly elected and the election was invalid and conducted against the principles enshrined in the Constitution. DATED at NAIROBI this 12 th day of NOVEMBER, 2017. MURUMBA & AWELE ADVOCATES FOR THE PETITIONER DRAWN & FILED BY: MURUMBA & AWELE ADVOCATES MIRAGE PLAZA, MEZZANINE 1 - UNIT 7 WESTLANDS, CHIROMO ROAD P.O. BOX 22255-00505 NAIROBI. To: The Supreme Court of Kenya COPIES TO BE SERVED ON 1. SOWETO & COMPANY ADVOCATES BIBLICA (1 ST FLOOR), OPP. KNEC DENNIS PRITT ROAD, CALEDONIA P.O BOX 44287-00100 NAIROBI 2. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ANNIVERSARY TOWERS 6TH FLOOR UNIVERSITY WAY P.O BOX 45371-00100 NAIROBI Page 20 of 21
3. CHAIRPERSON INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ANNIVERSARY TOWERS 6TH FLOOR UNIVERSITY WAY P.O BOX 45371-00100 NAIROBI 4. H.E. UHURU MUIGAI KENYATTA HARAMBEE HOUSE, HARAMBEE AVENUE NAIROBI. Lodged in the Registry at Nairobi on the..day of NOVEMBER 2017... Registrar Page 21 of 21