Today the battle for the top most seat in the country enters its 3rd day as the 3rd respondent (Mr Uhuru Kenyatta) through his Lawyers Ahmed Nassir Abdulahi, Katwa Kigen & 3 others are set to defend his election in the recently concluded august 8th polls. Also set to present their issues are the interested parties and amicus curiae (friends of the court).
So far, the Petitioners (NASA) have established their case on allegations based on inconsistencies in forms 34 A &34 B that were used in the election. Senior counsel James Orengo explained to the court that the forms used in the elections didn’t include the exclusive security features that had been promised earlier by the IEBC.
He also went further as to display the specifics by showing the court the extent of the inconsistencies that included wrong bar codes on the documents and missing anti copying features. He alleged that the documents might have been printed elsewhere other than by Al Ghurair, the firm contracted to print ballot papers by the IEBC.
The second allegation was on the issue of un gazetted polling stations and returning officers to which the 2nd respondents through PLO Lumumba dismissed by using the now famous De minimis rule which states that the law doesn’t concern itself with the minimal.
The Defence further used Article159 (d) of the constitution to counter the issue of technicalities. They further stated by quoting article 86, that there have been no election rules that have been broken by IEBC in conducting the elections as stipulated under our constitution.
The Defence also countered the allegations by NASA by reminding the court on the use of the thumb rule on evidence which states that a petitioner cannot introduce new evidence by way of submissions as NASA was trying to do.
Senior counsel Mr Ahmed representing the 3rd respondent had also mentioned it earlier on Saturday night by stating that it is trite law for a party to stick to its pleadings.
What NASA has been trying to do all along is to fish for evidence in the IEBC data bases to assist them in their case since they don’t have enough evidence in their possession. Their hope is that through this expedition they might find something to present to the court.
The law is that whoever alleges must prove and NASA has alleged but cannot prove, their evidence doesn’t have much weight and they will remain just allegations which cannot hold water.
Even though the standard of proof for civil cases is lower than criminal ones, NASA won’t meet the threshold as required by the court. The burden of proof lies on them to establish that indeed the IEBC failed in its mandate to perform its function.
Internationally, IEBC met the threshold for holding free & fair elections and this adds much weight since the court has to consider the out of court atmosphere in its ruling. This was clearly established by the various international bodies that acted as observers during the election.
It would be imprudent for the court to state otherwise in their ruling since the observers had already established that indeed the Kenyan people had expressed their will as required by their own Constitution and international law.
The report by the court registrar that is bound to be submitted today will be important in guiding the court’s decision to establish whether the IEBC servers were breached or not.
The issues presented by NASA to the court are similar to the ones in 2013 save for a few amendments. My opinion is that they are bound to suffer the same fate!