NASA: Jubilee and IEBC submissions lacking substance

The National Super Alliance (NASA) has accused the electoral commission and Jubilee Party of taking its case casually.

In a detailed response to submissions by the lawyers of the Independent Electoral and Boundaries Commission (IEBC) and President Uhuru Kenyatta, NASA argued that the way the two treated the case showed the inconsistencies and contradictions witnessed in the final tally of the presidential elections.

"They did not even attempt to respond to the issues we raised but only created an imaginary case for us and gave answers. They treated us, this court, and Kenyans with contempt and have themselves admitted they made the final declaration without all materials," said lawyer Otiende Amollo.

The coalition submitted the totality of IEBC's submissions showed that the elections were shambolic and lacked constitutional validity.

Credible elections

Senior counsel Pheroze Nowrojee argued the respondents deliberately chose to mislead the court by dwelling on relevant provisions of the law to suit their arguments without looking into the totality of the laws governing free, fair, and credible elections.

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According to the senior counsel, there was no way the IEBC could lawfully declare the final presidential results in the absence of 11,000 forms 34A.

He submitted that NASA wrote to the commission on August 10, 11, and 14 demanding forms 34A to verify the results but were told the forms were not available, which justified their arguments that the final results could not be lawful.

"The scenario was similar to that of the Bermuda Triangle, where no one knows how ships disappear. It is like the forms 34A came and disappeared and were being held unlawfully to facilitate altering of results," said Nowrojee.

Presidential results

He submitted that IEBC only offered to surrender the forms 34A after being satisfied they had changed them to reflect the final tally of the presidential results.

He dismissed claims by lawyer Ahmednasir Abdullahi that elections can only be invalidated if it offends the rights of voters, saying that any election can be declared null and void if it is proved the systems and the process did not comply with the threshold set by the Constitution.

On the issue of the large margin between Mr Kenyatta and NASA candidate Raila Odinga, they submitted that numbers are not the only yardstick to measure the legality of an election, but also the conduct of the entire process.

Senior counsel James Orengo submitted that what the court ought to look at is whether the election was done accurately, efficiently, and in an accountable fashion.

"The question of legitimate election was settled by the Court of Appeal when they said the IEBC must be fully above suspicion and command the respect of Kenyans," said Orengo.

Mr Orengo argued that there must be a winner and loser in any contest, but that the contestants are more interested in the fairness of the process than the outcome.

On claims that the different margin of votes between the presidential votes and other seats were minimal and could not affect the final outcome, the NASA lawyers submitted that the IEBC was not telling the truth.

They asked the judges to declare that Uhuru Kenyatta was irregularly declared the president-elect.

[Paul Ogemba and Kamau Muthoni]