Raila Odinga's running mate in the August presidential election, Martha Karua, has challenged the Supreme Court's ruling on the case challenging the poll results at the East Africa Court of Justice.
Documents filed at the regional court by Karua and Muslims for Human Rights (MUHURI) poke holes into the judgment by the Apex court that upheld the election of Kenya Kwanza Alliance leader William Ruto as Kenya's fifth president.
Karua and the lobby group, through lawyers Donald Omondi and Esther Muigai, told the court that they are dissatisfied with the entire decision by the Supreme Court and want the East African Court of Justice to overturn it.
"A declaration be issued that the determination given by the Supreme Court of Kenya(SCOK) on September 5, 2022, and the detailed judgement of September 26/2022 was not done in accordance with the provisions of the constitution and laws of the Republic of Kenya, and the principal governing electoral dispute resolution, with non-compliance, violated the rights of applicants and other citizens of Kenya," the petition reads in part.
Karua wants the regional court to make a declaration that the presidential election held on August 9, 2022, and the presidential results announced on August 15, 2022, by the Independent Electoral and Boundaries Commission (IEBC), were not done in accordance with the provisions of the electoral laws and the principles governing the election, which non-compliance vitiated the declared results.
"A declaration that the respondent's acts and omissions violated principles of democracy, the rule of law, good governance and human and people's rights as enriched in the East African Community ( EAC) treaty and other African and international law," the petitioners added.
Karua claims that the conduct of the just concluded presidential election in Kenya was in violation of the constitution, laws of Kenya, the treaty of the establishment of the East African Community, the African charter on human and people's rights on the rights of women in Africa, and elections laws.
"The conduct of a Presidential Election dispute resolution process that violated the constitution of Kenya, the laws of Kenya, EAC treaty, African Human Rights charter, the Maputo Protocol, ACDEG and settled principles of dispute resolution on the EAC, the AU and under the International law, " Karua states.
"Further that the said IEBC failed to conduct the elections and or announced the results, and that Supreme Court failed to properly adjudicate the resultant disputes in accordance with the constitution of Kenya as well as EAC laws, international laws principles governing elections which non-compliance completely vitiated the announcement and the election," the petitioners state.
At the same time, Karua and the lobby group are also seeking the regional court to interpret and give remedies for violation of their rights as enshrined in the EAC treaty.
"Pursuant to Article 23 of the treaty, this court has jurisdiction to ensure the adherence to law in the interpretation and application of and compliance with the treaty. Further, Article 27 of the treaty vests this court with jurisdiction to interpret the provisions of the treaty," they argue.
According to Karua, Kenya’s electoral management body, IEBC, and the Supreme Court subverted democracy and undermined the rule of law through their actions in the 2022 presidential election.
The petitioners want the court to order the Attorney General and the government of Kenya to compensate them.
The petitioners seek the EACJ help claiming that they are relying on the Treaty for the Establishment of the East African Community to argue that the actions and decisions of the two organs of State violated their rights.
The Petitioners claim that they will adduce evidence to show that Ruto who was declared by IEBC as the winner and affirmed by the Supreme Court as having been duly elected as President was done in clear violation of the applicable laws.
Karua hinted at moving to the regional court in September, insisting that Azimio won the election.
"Mahesabu haziingiani kwa hivyo siezi amini tulishindwa, lakini sababu koti ilitoa amri Kenya iiendelee vile koti iliiamua sababu hio ndio rule of law na democracy," she stated at a past event.
"Kuvunjika kwa mwiko sio mwisho wa kupika, hakuna mahali tunaeza bishana kiti ya urais lakini tunaeza peleka mahali pengine, ndivyo tuelewe kama kweli koti yetu ilitupatia haki."
The two petitioners further claim that Kenya’s electoral body Commission (IEBC), failed to properly manage the August 2022 elections by ceding critical aspects of the process such as the electoral technology and results management to persons it had no control over.
They accuse the IEBC of not only failing to register eligible voters but also failing to maintain an accurate and clean Register of Voters, to publish it on time, and to guarantee its integrity through a publicly available audit.
They further claim that unauthorised persons accessed, deleted and uploaded election results, and that the electoral management body, which was dysfunctional, did not investigate or respond to complaints.
" The two further argue that when they took their grievances to the Supreme Court, as provided for under the Kenyan Constitution, they were frustrated in their attempt to access justice through a fair trial: the judges did not compel IEBC to supply all the information necessary to vindicate their rights," states their lawyers.
They further allege that the Supreme Court refused to examine all the evidence presented before it, neglected to fully inquire into the technology applied while condoning IEBC’s cover-up in refusing to grant access to its technology critical to determining the matter fairly, in disregard of its own orders.
"The Applicants fault the Supreme Court for finding that the Chairperson of the IEBC conducted an election in an unlawful manner, on the one hand, yet failing to assign a legal consequence for the breach,'adds Karua lawyers.
