With Or Without NASA In The Petition The Supreme Court ‘May NULLIFY’ Election Of Uhuru As president in the Flawed October Polls

By J Awiti

SUPREME COURT – 2017 PRESIDENTIAL PETITION

NASA EXPUNGED – LEGAL IMPLICATIONS

The Supreme Court has earlier this evening made a Ruling expunging the National Super Alliance (NASA) from the proceedings.

There are questions as to the effect of the striking out of NASA from the Petition and more particularly whether or not the same weakens the Petition, in view that the last Presidential Petition (Raila 2017) which was successful had NASA actively involved with NASA’s advocates seen to have performed tremendously to persuade the SCORK judges to invalidate the 8th August 2017 Presidential elections.

For a start he two presidential petitions – the successful one against the 8th August 2017 elections and the current one challenging the 26th August 2017 elections – need to be distinguished.

While NASA was the Petitioner in the 8th August elections, the Alliance was a Respondent – the 4th – before the striking out. As a petitioner, NASA had to make its accusations against the Respondents and prove the same, the role of a Respondent is merely to respond to the allegations levelled against it.

It is therefore noteworthy that the Consolidated Petition will turn around the evidence adduced by the 3 petitioners Harun MWAU, Njonjo MUE and Khelef KHALIF. NASA, as a Respondent was going to add little or no material in support of the quest to invalidate the elections. Legally speaking, NASA would have been reduced to merely defending itself against adverse allegations against it both by the Petitioners and or the other Respondents.

The departure of NASA therefore does not the evidential value of the Petition although it takes away the political excitement and interest from the NASA-allied followers.

While the expunging of the attached IEBC internal memos has dealt some blow in terms of the evidence to be relied on, the focus shifts to the Ruling on the application for order of scrutiny set for tomorrow, the Petition retains its heavy evidential weight.

While it is not lost to me that Presidential petitions go beyond just evidence, the evidence adduced in the petition and the attendant affidavits (most of which the Court declined to strike out) is more than sufficient to lead to the invalidation of the 26th October elections.

I am inclined to strongly believe that the Supreme Court of Kenya shall for the record second time in one and a half months invalidate a Presidential elections.