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Supreme Court Should Not Disfranchise 19.6 Million Registered Voters Rights!

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As reported, Mr Khalef Khalifa, Mr Samuel Mohochi and Mr Gacheke Gachuhi have filed a petition at Supreme Court stating: there is a real danger of disenfranchising more than six million voters; IEBC is not prepared for the repeat poll because of constant intimidation and threats directed at its staff; there is continued political interference, intimidation, threats and pressure from politicians and protestors, towards IEBC and its employees; there is evidence that establishes real threat that the scheduled fresh election shall not comply with the order of the Supreme Court; the poll might not be held in a significant number of counties— thereby plunging Kenyans and their lives into jeopardy and that to them, Mr. Odinga having pulled out of the repeat State House race, the election stands cancelled.

Consideration of Each of the 5 Petition reported based on Kenya Constitution 2010

1. Disenfranchising more than six million voters of a leading candidate who has withdrawn

The voting process is established in Kenya Constitution 2010 article 1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.

Election Day is an exercise of Sovereign Power and there are no votes for any candidate on Election Day. On Election Day we have Kenyans exercising their rights to vote as established in 38 (3), “Every adult citizen has the right, without unreasonable restrictions— (a) to be registered as a voter; (b) to vote by secret ballot in any election or referendum. 

At the opening of the polling stations October 26th there shall be 19.6 million registered voters who shall be offered the opportunity to vote by secret ballot. No one knows who shall come to vote. It is the right of a person to vote or not to vote.  

If the election as so ordered were not to happen on October 26th, 2017 the Supreme Court will have denied 19.6 million voter’s their constitutional right to vote. The Supreme Court will further have taken away voters sovereign power from them. The Court cannot give 3 voters rights over 19.6 million. 

Kenya Constitution law 140 (1) “A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election,” set this law to ensure equal rights as well as a fair, free and credible elections.  

The 8.3 million voters who voted for other candidates have the same equal rights like the 6 million mentioned.  

2. IEBC is not prepared for the repeat poll because of constant intimidation and threats directed at its staff

The intimidation and threats to IEBC can be catered for by the National Security organs set-up by the Kenya Constitution to provide security to the constitutional process. The law can deal with persons who are acting above the constitution. Three persons who are not IEBC commissioners cannot allocate themselves powers to understand the process. Only IEBC commissioner through a majority resolution can petition the court on this. 

3. There is evidence that establishes real threat that the scheduled fresh election shall not comply with the order of the Supreme Court

The Election is not an order of the Supreme Court. The elections are a Constitutional order as established in article 140 (3) “If the Supreme Court determines the election of the President elect to be invalid, a fresh election shall be held within sixty days after the determination.”  

It is not the Supreme Court who ordered the election. It is not the Supreme Court that sets the standards of free, fair and credible. The Supreme Court role is to validate or invalidate the Election. The current constitutional order of Elections in 60 days is an order by all Kenyans to who Sovereign Power belongs to. It is an order by the Constitution as the Supreme law of Kenya. The Supreme Court role is auditing an election is set under article 140 after the Election.    

4. There is a risk that the poll might not be held in a significant number of counties— thereby plunging Kenyans and their lives into jeopardy.

The Cabinet Secretary Fred Matiangi of Interior Security stated that the National Security organs are ready to secure the Country and provide security to IEBC and voters at all polling stations and every polling station will be secured. 

The petitioners cannot claim to know how 19.6 million people will vote. The claim that polls will not be held in a significant number of counties should be explained by the petitioners. If the petitioners have knowledge of how this will put the country to risk and jeopardize the country they should share the information with the security organs and their elected leaders. Petitioners should not be asking the court to violate the constitution law 140.    

5. Mr Odinga having pulled out of the repeat State House race, the election stands cancelled.

A candidate right to vie for elections is established in Constitution article (3) Every adult citizen has the right, without unreasonable restrictions—(c) to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office.

A candidate can withdraw if they chose to. The constitution requirement is for the candidate to be on the ballot on Election Day. The pulling out of a candidate cannot stop a constitutional process. A candidate can even pull out the day of elections. The pulling out is normally used when someone senses defeat and rather than have the official result the result the person gets is considered as no official for they pulled out.  

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