Presidential election petition: The 9 issues as Supreme Court judges retreat to write verdict

The petitioners had their day in court on Wednesday, the respondents fired back on Thursday and Friday was set aside for rejoinders and deliberations on audits ordered by the court.

Attention now shifts to the seven Supreme Court judges, as they retreat to pen their judgement. Koome and her colleagues had distilled the nine key issues for determination in the 2022 presidential election petition as follows:

Technology

The key question that judges will be expected to answer is on election technology deployed by IEBC to conduct the 2022 state house race, and whether it met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.

Results transmission

With results transmission from the 46,229 polling stations to the IEBC portal forming a substantial part of the submissions by the legal teams, Koome and her six colleagues will determine whether there was interference with the uploading and transmission of forms 34A, that were used to enter presidential election results.

Uploading of forms 34A

Closely tied to this, the judges will also rule on whether there were differences in forms uploaded to the IEBC portal by presiding officers in the polling stations, with copies of the results declaration forms given to agents of the four presidential candidates.

Similarity of forms

The judges will also determine whether the forms uploaded on the portal were similar to the physical documents submitted to the national tallying centre at the Bomas of Kenya by returning officers, alongside forms 34B that were used to tabulate results at the constituency level.

Postponement of Mombasa, Kakamega elections

Another key issue for determination by the judges is whether the postponement of gubernatorial elections in Kakamega and Mombasa counties on the eve of the general election was a deliberate plan to suppress voter turnout and whether Azimio la Umoja presidential candidate Raila Odinga was disadvantaged by the decision, that also affected parliamentary races in Rongai, Kacheliba, Kitui Rural and Pokot South Constituencies as well as MCA polls In Kwa Njenga and Nyaki West Wards.

Tallying of votes and differences with other elective positions

On the conduct of the August 9th presidential election, the supreme court judges will be expected to determine if there was an unexplained difference between the number of votes garnered by the four presidential candidates and those received by candidates contesting for other five elective positions; 47 governors, senator and woman representative seats, national assembly member in the 290 constituencies and 1450 MCA slots.

Tallying, verification and declaration processes

The verification, tallying and declaration of presidential results at the Bomas of Kenya are also among the issues for determination by the judges. They are to determine whether the exercise complied with articles 138(3c) and 138(10) of the constitution.

50% plus one threshold

Another concern is whether Ruto met the constitutional threshold that requires a winning presidential candidate to garner more than half of the total votes cast and at least 25% in 24 counties is also a key issue for determination by the judges.

Illegalities in the process

They will also ascertain if there were illegalities and irregularities in the August 9th presidential race and whether they were grave enough to affect the final election outcome.

Should the judges find no merit in the petition, they will affirm Ruto’s election and set the stage for his swearing-in as the country’s fifth president on 13th September. Should they allow the petition, Ruto’s declaration as president-elect will be nullified and a repeat state house race conducted within 60 days.

Koome said the exact time on Monday for delivering the judgement will be communicated. For now, it is an anxious weekend for Odinga, Ruto, their lawyers, supporters and the country at large, with all eyes and ears on Koome and the Supreme Court judges as they retreat to pen what is a consequential verdict on the 2022 presidential race.

"Continue to pray for us to come up with a judgement that is anchored on the law, the constitution that is anchored in the Law and brings harmony to our country," said Koome at the conclusion of the hearing on Friday.