An important week in Kenya’s political history comes to an end Saturday with the expected judgment by the Supreme Court in petitions filed by Cord Coalition leader and Prime Minister, Raila Odinga, and the civil society-fronted Africa Centre for Open Governance, challenging the results in the March 4 elections in which Uhuru Kenyatta was declared the winner.

The Supreme Court, exercising special powers conferred by the Constitution, will decide whether Kenyatta was validly declared the winner of the elections.

As it would be risky to predict the nature of the judgment that the Supreme Court will give, it is only possible to address some of the issues that came up in court during the hearing of the petition.

Early in the week the court surprised everybody when it issued an order for the scrutiny of all copies of Form 34 and Form 36 used in the elections and also the results for 22 constituencies which, according to the petition by Mr Odinga, recorded a voter turnout in excess of 100 per cent.

The order by the court was issued without application by any of the parties and constitutes a proactive approach by the court towards resolving the issues raised in the petition.

The results of the re-tallying will contribute significantly to the assessment by the court as to the results of the petition.
A central issue in these petitions has been what constituted the register of voters for the 2013 elections.

According to Mr. Odinga, the register was closed on February 18 and only the people reflected as registered on that date were legally capable of participating in the election.

The IEBC has argued that although it represented a figure of registered voters on that day, this was not conclusive and did not include voters with special needs, such as persons with disabilities whose biometric features could not be captured during the main registration.

Lawyers for the petitioners have made much of the fact that the IEBC did not disclose the existence of this special category of voters.

There was also controversy as to the number of such people. The decision of the court will certainly hinge on what, in its view, is the correct register.

Against opposition by the petitioners, as to his participation, Attorney-General Githu Muigai argued his way into the proceedings, indicating that as Attorney-General, he could assist the court in dealing with the various complex legal issues that it had to decide on.

His most telling contribution, however, was a submission that the country cannot afford another election because of the significant disruptions it would bring to the country.

It appears that the Attorney-General used his position as a friend of the court to indicate the preference of the establishment that it is time to move on.

The court had to decide on the participation in the petitions by various interest groups that claimed that they could also assist it in arriving at a fair determination of the issues.

The Law Society of Kenya was turned down because one of its officials had sworn an affidavit in support of Mr Odinga’s petition.

Katiba Institute, an organisation founded by Professor Yash Ghai, was also turned down because it had associated itself with a civil society report that spelt out the implications for the country if Mr Kenyatta was elected president while facing charges before the ICC.

It can be concluded that the general rule arising from this decision is that the special relationship of amicus curiae (friend of the court) will not easily be given to advocacy groups since, by the nature of their work, these are in the business of taking positions on a wide range of governance issues.

If this is the case, the new found space under the new Constitution through which advocacy groups use litigation to support governance objectives will be curtailed. It is to be hoped that the Supreme Court, as the highest court of the land, will review its position on this.