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Constitutional Petition on the IEBC's Manual Tallying ...

Well there has been a lot of castigation of the civil society for constantly going to court raising all manner of constitutional issues, which in the view of those who castigate, is a sign of idleness and that these organisations have no interest of the Kenyan people at heart. 

As the inordinately long tallying exercise went on, and the tensions that arose out of suspicions of a failure of the systems meant to guarantee a relay of results real-time, a group went to court and filed a Petition 152 of 2013. 

The crux of the petition filed by AFRICOG with an affidavit sworn by Gladwell  Otieno - a well-known activist for rule of law and good governance - sought a halt to the manual tallying process allegedly done without verification of the actual constituency based results, to resume the use of the electronic tallying system, to allow unfettered assess to the tallying process by agents and accredited observers etc. 

In justification of the reason for not going to the Supreme Court, the Petitioners sought to clarify that the petition was not challenging the results of the presidential elections. The Court stated that the exclusive jurisdiction of the Supreme Court over such issues was donated by the Constitution and the High Court could therefore not invoke or appropriate jurisdiction to entertain the matter. 

While striking off the petition and notice of motion the court, though declining to go into the substantive issues raised pointed out that the issues raised were not idle and should be pursued in the right forum. 

We appreciate the speed with which the three judges Lenaola, Majanja and Korir dispensed with the issue! An issue that bugs me is that though the Court said it was bound by the Advisory Opinion No. 2 of 2012 on Gender Representation, I still remember the same court's own decision on the so-called Ouster Clauses and the approach of the High Court when dealing with these (Re: Judicial Review 295, 11, 433, 434, 438 of 2012). 

The civil society does not go to court to idle. They present weighty constitutional issues and they should not be castigated for representing a section of Kenyans. We should appreciate that we actually have a vibrant Judicial system that is trying to work efficiently and professionally, and importantly, which appreciates the importance of entertaining such cases in the public interest. 

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RAILA Going to Court As Well ....

The PM will be in court with another Petition - this time at the supreme court - as per the Supreme Court (Presidential Election Petition) Rules 2013. A lot of castigation too of his decision to do so instead of conceding and quietly retiring as the seniour statesman he is. We fail to appreciate that one, he has confidence in the Judiciary's ability to effectively and fairly adjudicate over the issue and two, that he raises issues that are so weighty on their face value that they just have to be addresses in the spirit of getting rid of the 2007-2008 ghosts - something these elections was meant to do. Let us give him the space, even while we resume our daily activities. 

Note: These elections have had a very important Constitutional Lesson which many may have failed to notice. The Presidency under the Constitution, 2010 is a weaker one than it previously was. The emotional investment in a president as being the sole solution to "his/her people's" problems ought to be something of the past. The tensions therefore that have been common place leading up to and during tallying of presidential election results are bound to reduce going forward. Power has devolved and institutions previously weakened by an all powerful - all knowing presidency are now constitutionally protected. 

Kudos to my compatriots for an election well and peacefully carried out!

MY TAKE_


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