February 25th 2018

Opinion / Commentaries

Uhuru Kenyatta should stop falsehoods and derision of Supreme Court

What remained uncontroverted however, was the admission by Ezra Chiloba, that as of 14th August 2017, three days after the declaration of results, the IEBC was not in a position to supply the petitioner with all Forms 34A.

By Ndung'u WainainaMonday, 25 Sep 2017 12:08 EAT

Uhuru Kenyatta campaigning in Embu County today.

Jubilee Party Presidential Candidate Uhuru Kenyatta must cease playing the victimhood politics after Supreme Court of Kenya decision on presidential election. He is trying to recast the International Criminal court (ICC) narrative of unjustly persecuted. In this case he has localized his ‘victimhood’ claiming to be victim of unfair court’s decision of invalidating his reelection win. This is both ingenious and fraudulent. His reckless and poisonous attempts to whip his supporters’ political emotions against the Supreme Court of Kenya as well as re-litigate his case both in public square and in Court are futile. Presidential election petition was litigated and closed within the timelines provide by the Constitution of Kenya.

Uhuru is under the illusion that he can repeat the false victory he chalked up with the ICC in 2013 after profiling segments of Kenyans as being the source of his indictment, plying victim of Western imperialism, invoking the false spirit of pan-Africanism and vilifying the ICC as an instrument of Western hegemony. This time round, he has, unprecedented malice, trained his guns on the Supreme Court - enlisting the combined executive and legislative jurisdictions to malign and delegitimize the judiciary and thereby undermine the rule of law. To an authoritarian, rules that block what he wants to do are always "bad for the country”. Mr. Kenyatta is sliding Kenya to authoritarianism.

It must be made clear that upon the expiring of the 60 days Constitution window to conduct fresh presidential election, Mr. Kenyatta’ presidency will be illegitimate. At the moment Mr. Uhuru Kenyatta is holding temporary incumbency for the simple reason that his exercise of the delegated sovereign power of the from the people of Kenya for the period of constitutional set Five year term has expired. He does not enjoy the consent of the people of Kenya to govern and run the government of their behalf.

The Jubilee Party candidate Uhuru Kenyatta, who does not seem to distinguish presidency from his candidature, is pedaling an inconsequential minority dissenting opinion of the Supreme Court of Kenya which was written to give him (Uhuru) the political propaganda with legal gravitas. Justice Njoki Ndung’u wrote dissenting opinion that is in contravention of the Constitution Article 163(3) and (8) and should lead to her facing censure. The Judge turned herself into lawyer, investigator, prosecutor and judge of a case away from one before her.

Jubilee Party candidate Uhuru Kenyatta is engaging in unjustly, unfounded and dangerous politics of delegitimizing Courts with intent of destroying the institution. Hence leading the country to the path of anarchy and lawlessness. His claims that the Court subverted the will of the people are baseless, feeble and untenable. The Court found out that the Independent Electoral and Boundaries Commission (IEBC) never conducted an election in accordance with the Constitution and laws of Kenya. IEBC announced results on the basis of the Forms 34B without receiving and verifying the Forms 34A, which are recognized by Constitution as the final primary results. IEBC never gave the Court any plausible explanation why it disregarded Forms 34A and exclusively relied on FORM 34B whose authenticity and source was never provided.

Supreme Court of Kenya gave both Uhuru Kenyatta and Independent Electoral and Boundaries Commission (IEBC) a unique opportunity to demolish the allegations of Petitioner. They both did not. IEBC was ordered to supply the petitioner and the Uhuru Kenyatta with all the scanned and transmitted Forms 34A and 34B from all the 40, 883 polling stations. It defied Court orders!

Uhuru Kenyatta is claiming Court failed to scrutinize all the documents supplied to the Court to challenge the Petition. This claim is false, malicious and intended to cast judges as compromised and corrupt. When Petitioner’s lawyers filed application seeking examination of the ballot boxes to confirm how widespread the alleged illegalities were, the IEBC lawyer (PAUL Muite) agreed BUT Uhuru Kenyatta’s Lawyer( Fred Ngatia) interjected and objected saying and quote “ him (IEBC Lawyer) has not sought our views and it is our contention that such a request is objectionable by our client. We request that the court adjourns for 30 minutes to enable us consult with our client.

This is a monumental request that may jeopardize my client”. Court agreed to adjourn. On return both Uhuru Kenyatta and IEBC lawyers objected to the request by Petitioner to open the ballot boxes. The Petitioner’s lawyers withdraw the application. Further if both IEBC and Uhuru Kenyatta had nothing to hide, why didn’t they readily accept and provide access to ICT logs and servers to disprove the petitioners’ claims? How can Mr. Kenyatta now shamelessly dupe the public with the dishonest question as to why the ballot boxes were not counted and verified? How can fraudulent documents be made the subject of verification!

On Uhuru Kenyatta’s claims that Court invalidated genuine win, the evidence and proof before the Court shows clearly this claims is false. Neither the IEBC nor the Uhuru Kenyatta had offered to the Court any plausible response to the question as to whether all Forms 34A had been electronically transmitted to the National Tallying Center as required by Section 39 (1C) of the Elections Act.

What remained uncontroverted however, was the admission by Ezra Chiloba, that as of 14th August 2017, three days after the declaration of results, the IEBC was not in a position to supply the petitioner with all Forms 34A. Curiously, Uhuru Kenyatta insisting that the presidential results were declared on the basis of Forms 34B, all of which were available, but implicitly admitted that not all Forms 34A were available by the time the IEBC declared the “final results “for the election of the president.

On claims about vote number, the propaganda and lies by Uhuru Kenyatta are unsustainable. Court was categorical that elections are not only about numbers as many would like the country to believe. Even in numbers, as taught in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution. Elections are not events but processes.

The law set the formula of arriving at authentic numbers and outcome to be “simple, accurate, verifiable, secure, accountable and transparent” process. Both IEBC and Uhuru Kenyatta could not proof how final results’ numbers were arrived at. It is very strange that Mr. Kenyatta does not find anything wrong with IEBC despite the Court finding it culpable of bungling election. Why would he furiously attack the Court while the main culprit has been established to be IEBC? Why is he not seeking accountability from the IEBC? Why is he protecting IEBC?

Finally, IEBC admitted two days to the election date that it was going to be unable to electronically transmit results from 11,000 polling centres because they were off the range of 3G and 4G network. It emerged clearly in Court that from the information posted in IEBC’s website, among the 11,0000 polling stations IEBC claimed were off the 3G and 4G range are in Bomet; Bungoma; Busia; Homa Bay; Kajiado; Kericho; Kiambu; Kisumu; Kisii; Kirinyaga; Nyeri; Siaya; and Vihiga Counties and whose results came late and were proved to be problematic.

Both the top leadership and Secretariat of the IEBC must accept full responsibility for bungling presidential election and wasting KSHS. 49.9B. It is complete escapism and living in denial for the top officials of IEBC to assume there are no problems with how election was handled and pretend to be busy preparing for fresh presidential election. The court found gross mismanagement, fraud and violation of laws in conduct of election. With these findings of the Court, it is inconceivable that nobody in the Commission has slightest sense of responsibility. IEBC’s ineptitude, arrogance and unconcerned attitude is very dangerous and creating uncertainty to the Kenya. 

The writer is the Executive Director of the International Center for Policy and Conflict (ICPC).

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