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President-elect William Ruto has suffered a major setback after the supreme court declined his last-minute bid to have all the electoral commission's commissioners barred from participating in the petitions challenging his win.

The seven judges of the Supreme Court led by Chief Justice Martha Koome threw out the application by Ruto seeking to have the six commissioners attached to the Independent Electoral and Boundaries Commission (IEBC) as respondents in the petition filed by Azimio la Umoja - One Kenya coalition party presidential contender, Raila Odinga.

Ruto wanted commissioners including Vice-Chair Juliana Cherera struck off as respondents

The other commissioners who were named as respondents in the Raila petition include Abdi Guliye, Boya Molu, Justus Nyang'aya, Francis Wanderi and Irene Massit.

The Kenya Kwanza Alliance leader wanted only the commission and its chairman Wafula Chebukati to participate in the petition.

Ruto argued that the commissioners should not be named individually since the election was not conducted by individuals.

Ruto wanted the four commissioners, who disowned the results as announced by the IEBC chair removed, from participating in the proceedings on grounds that they are proxies of Odinga and their participation is aimed to advance his case.

Court declines Ruto's request to have AG removed from presidential petition

The judges also declined Ruto's request to have Attorney General Kihara Kariuki barred from participating in the presidential election petition.

"Regarding the application to strike out the 13th respondent(Attorney General) from Petition E002, it is also not lost on us that the said respondent is the Attorney General of the Republic of Kenya. The holder of such an office has more capacity than any other litigant in this Country to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he does not need the aid of the 9th respondent (Ruto) to accomplish such a routine task, " ruled the seven judges of the Supreme Court. 

Ruto sought to have the AG removed as a respondent in the presidential election petition saying he has no role in the matter unless the court allowed him to participate as the friend of the court.

He argues that the Supreme Court (Presidential Election) Rules, 2017 do not envisage the AG as a respondent in a Petition challenging the Presidential Election. By , K24

 

The national information minister and government spokesperson has revealed that until Monday morning, none of the presidents in the region invited by President Salva Kiir to witness and grace the graduation of Unified Forces in Juba on Tuesday had confirmed their attendance.  

Micheal Makuei told Radio Tamazuj Monday that he could not confirm how many presidents would grace the occasion and who of them would dispatch representatives.

“Up to now, the invited dignitaries have not confirmed their attendance of the graduation of the Unified Forces tomorrow (Tuesday) but the president has invited all the leaders of the East African Community and the regional grouping IGAD which include Tanzania, Kenya, Uganda, Rwanda, Burundi, Democratic Republic of Congo and South Sudan,” he said. “The others invited are the leaders of Djibouti, Eritrea, Ethiopia, Somalia, and Sudan.”

“Whether they will be attending or sending their representatives is what we do not know and we will know probably later today,” he added.

Makuei assured the people he said have been doubting the graduation of the forces that it will definitely happen on Tuesday.

“We want to tell the people who have been doubting us about the graduation of the Unified Forces that it will indeed happen tomorrow 30 August,” he reassured. “The troops are now doing their final rehearsals here on the ground and they will be graduated tomorrow.”

According to the minister, the 50,000 troops who constitute the Unified Forces as of now are not in one place but the ones who will be passed out tomorrow are the ones stationed in and around Juba City.

“The forces that are outside will be graduated in their respective areas. The graduation in Juba will be symbolic for all the Unified Forces,” he said. “My message to the citizens of South Sudan, particularly in Juba City, is that they should turn out to attend the graduation of the Unified Forces on Tuesday because this is the implementation of the security arrangements in the revitalized peace agreement.”

Makuei said the passing out of the Unified Forces is a big step in the implementation of the peace agreement and the president decreed that the day be a public holiday.

“It does not mean you should stay in your house but that you should come and attend the function so I appeal to the people to come and attend the ceremony,” he urged.  

The information minister also said the SSPDF peacekeeping battalion destined for the Democratic Republic of Congo is ready and that the council of ministers last Friday approved the funds for their deployment.

“Cabinet approved over US$ 6 million for the deployment of the SSPDF peacekeeping force in the Democratic Republic of Congo and they will go when they are ready,” he said.

Meanwhile, SSPDF Spokesman Gen. Lul Ruai confirmed that more than 10,000 out of 27,000 troops in Greater Equatoria, will be graduated in Juba drawn from the training grounds in Central Equatoria State.

“The Unified Forces passing out tomorrow are from the training centers of Gorom, Rajaf, Rambur, and Lologo and they are doing final rehearsals.

Gen. Lul said the army was facing logistical problems occasioned by flooding in some parts of the country and has been unable to deliver uniforms, food, and other items to the training centers.

“In Equatoria, the road to the Owinykibul training center has been destroyed by rains so the Unified Forces there will move to Torit to be graduated,” he said. “In Upper Nile State there is flooding so the Unified forces there will move to Malakal town to be graduated there.”

On when and where the Unified Forces will be deployed, Gen. Ruai said it will depend on the prevailing security situation in parts of the country.

“We have places where there are amplified clashes between civilians and where civilians even fight with the army, so these are the places where the Unified Forces will be deployed,” he said.

Gen. Ruai appealed to the forces who would not be passed out to tomorrow be patient and said their turn will soon come. - Radio Tamazuj

  • Lady Justice Martha Koome (center) and the other members of the Supreme Court bench. FILE 
  • With hearing of presidential election petition by the Supreme Court Judges set to begin on August 31, the final process of coming up with a judgement involves acute consideration of petitions and affidavits tabled before it.

    According to Senior Counsel Charles Kanjama, the affidavits touch on technical areas and the Judges are assisted by the evidence presented before them to make a determination on which ones to adopt, collapse or throw out.

    Guided by the intensity of the case from various parties, the Judges do not need to be experts in all areas, but read affidavits of technology experts and lawyers' presentations before coming up with their final verdict. 

    The Judges also use process of examination, cross-examination and re-examination based on lawyers' submissions from all parties to test the veracity or truthfulness and strength of evidence presented.

    Charles Kanjama
    Charles Kanjama during a press conference on March 20. 2018. THE STANDARD

    "By looking at evidence of one side and the other, and comparing them and contrasting against other information presented, the Judges can assess what is called probative value to prove the case that one is seeking. In this case, the Judges will rely on affidavits before them," Kanjama stated when he appeared in Citizen TV on Sunday, August 28. 

    According to Kanjama, Judges are only experts in analysing evidence and applying the law in giving the outcome after having interacted with lawyers during the petition.

    Supreme Court has nine petitions before it, with Kanjama stating that the seven Judges led by Chief Justice, Martha Karambu Koome, will have to listen to all of them before rendering their verdict.

    He stated that the court will follow the precedent of the 2013 and 2017 petitions where there were more than one petition but consolidated them into a summary of four issues.

    Kanjama added that the Judges will allow those supporting the petition to submit jointly and those opposing to also submit jointly. Case in point is former Gatundu South Member of Parliament Moses Kuria's petition where Azimio La Umoja coalition leader, Raila Odinga, is a respondent but also a fundamental petitioner.

    There are also those opposed to overturning of presidential election results, that is, the Independent Electoral and Boundaries Commission (IEBC) and the president-elect, William Ruto, who will be put in one category.

    For the IEBC Commissioners who have since split into two opposing factions, Kanjama stated that the court will make a decision whether to consolidate each side before the ruling since they are being defended by different advocates but share similar interest. 

    "Where you have three advocates claiming to represent the same party, the court will have to resolve the question on who has the authority to represent the party, but because of tyranny of time of the petition, it is also possible that the court would reserve the question in the determination in main decision and allow all parties to submit," Kanjama stated.

    There are currently nine petitions before the Supreme Court, with eight challenging the election of William Ruto as the fifth President of Kenya.

    Hearing of the petitions take a record three days and will begin on August 31, after which a judgment will be delivered on or before Monday, September 5.

    Supreme Court Judge Isaac Lenaola
    Supreme Court Judge Isaac Lenaola. FILE
     
 
  • An undated photo of Attorney General Kariuki Kihara at the National Assembly  CAPITAL FM 
  • Attorney General, Paul Kihara Kariuki, argues that the Independent Electoral and Boundaries Commission (IEBC) Chairman, Wafula Chebukati, cannot solely act on behalf of the Commission.

    In an response filed at the Supreme Court on Saturday, August 27, the Kariuki argues that while IEBC is and independent constitutional commission established under Article 88 of the Constitution, Chebukati is an appointee of the Commission.

    He cited Section 39 (3) of the Elections Act 2011 which states that the Commission shall announce the final results in the order in which the tallying of the results is completed. 

    The AG argues that while Article 138  the Constitution states that the IEBC Chairperson shall declare the results of the election of the President, it should not be interpreted to give Chebukati the ultimate power over other commissioners.

    from right; Azimio flagbearer Raila Odinga, prof. Makau Mutua and Azimio deputy presidential candidate Martha Karua filing their petition at the supreme court on August 22, 2022
    from right; Azimio flagbearer Raila Odinga, prof. Makau Mutua and Azimio deputy presidential candidate Martha Karua filing their petition at the supreme court on August 22, 2022  KENYANS.CO.KE

    "An Act that renders Commissioners superfluous in the discharge of their constitutional duties in favour of either an individual Commissioner or a hired member of staff of a Commission would negate all known canons of constitutional and statutory interpretation," the AG stated in his response. 

    The government's legal advisor moots that there is a distinction between the roles of the Chairperson and those given to the Commission. He cited a ruling by the Court of Appeal in the Michael Sistu Mwaura Kamau v Ethics & Anti-Corruption Commission & 4 others [2017] case.

    "It is clear from the provisions of both section 11(1) and 11(6) that the Act has separated the powers of the EACC and those of the commissioners. It is crystal clear to us that the functions of investigating and making recommendations to the DPP belong corporately to EACC and not to the secretary or the secretariat alone," Kariuki argued.

    Kariuki reckoned that the law intentionally recommended that commissions are unevenly constituted for the purpose of decision making by a majority - a decision which is regarded as that of the Commission.

    "That Constitution provides for an uneven minimum and maximum number of Commissioners, which speaks to provision for majority and minority in case of voting in the absence of consensus."

    The Attorney General pleaded with the Supreme Court to consider various principles of interpretation of the law before making its final ruling.

    Among them is interpretation based on the text and the context, where, the intent and purport of the Constitution, the objectives and aspirations, as well as the mischief to be remedied, are also brought into focus. 

     
    IEBC Chairman Wafula Chebukati releasing the presidential election results at Bomas of Kenya on August 15, 2022
    IEBC Chairman Wafula Chebukati releasing the presidential election results at Bomas of Kenya on August 15, 2022
    KENYANS.CO.KE

    He recommended the principle of harmonious interpretation - no one provision of the Constitution is to be segregated from all the others to be considered alone, but all provisions bearing on a particular subject are to be brought into view and to be interpreted as to effectuate the general purpose of the instrument.

    Other principals include the purposive approach to legislative interpretation where if the literal words used in a statute create an ambiguity, the court is free to look beyond the words themselves, and consider the historical context underpinning the legislation.

    The principal of a holistic interpretation which is a contextual analysis of a constitutional provision, reading it alongside and against other provisions.

    This is to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. 

    The AG fronted that principles such as presumption against absurdity; the presumption against unworkable or impracticable result, presumption against anomalous or illogical result and the presumption against artificial result should also be considered.

    Lady Justice Martha Koome (center) and the other members of the Supreme Court bench.
    Lady Justice Martha Koome (center) and the other members of the Supreme Court bench. FILE  By LAWRENCE BARAZA. Kenyans.co.ke
     
 

 

The United Nations High Commissioner for Refugees, Filippo Grandi, concluded a visit to the United Republic of Tanzania today with a call for more donor support for solutions, including sustainable voluntary returns.

During his three-day visit, Grandi met with Tanzania’s President, Samia Suluhu Hassan, and discussed the importance of creating favourable conditions for the return of Burundian refugees, while ensuring all refugees in Tanzania are protected and assisted.

Tanzania currently hosts over 248,000 refugees and asylum-seekers, mainly from Burundi and the Democratic Republic of the Congo (DRC), and most reside in the Nduta and Nyarugusu refugee camps in the country’s Kigoma region. Since September 2017, some 142,000 Burundian refugees have voluntarily returned to Burundi.

He commended Tanzania and its people for their longstanding history of welcoming and hosting refugees, as well as efforts in advancing protection and solutions for refugees in the country, in line with the Global Compact on Refugees.

“I am truly encouraged by the Government’s efforts to strengthen the protection of refugees, and stand alongside it,” Grandi said. “UNHCR’s commitment to support Tanzania and safeguard the rights of refugees hosted here remains steadfast.”

In Nyarugusu refugee camp, in the northwest of the country, Grandi met with Burundian and Congolese refugees, partners and local authorities. He visited a vocational centre in the camp where refugees and Tanzanians from the nearby villages were learning practical skills such as tailoring and vegetable gardening side by side. Grandi interacted with communities involved in a community biomass briquette production project, which aims to reduce the dependency on firewood and prevent environmental degradation.

He lauded the Tanzania Government’s recent efforts to issue birth certificates to refugee children, noting that the move would confer important legal protections on them and reduce the risk of statelessness, while also providing a form of identity when they return to their country of origin.

Grandi also witnessed how funding shortfalls are directly impacting humanitarian efforts on the ground. As of August 2022, UNHCR had received only 27 per cent of the resources needed in Tanzania for this year.

“The Burundi situation remains significantly underfunded’” Grandi said. “I appeal to donors, including development partners, to provide funding and investment in Tanzania and boost the provision of basic services. Lack of funding would risk reversing hard-won gains.” He also called for enhanced support in Burundi to help tackle obstacles hindering returns.

“Tanzania has for over four decades generously hosted large numbers of refugees, and we must not let them down,” Grandi stressed.

“We will continue to work with the Government and partners to improve the well-being and livelihoods of refugees and the host communities in Tanzania, and support the voluntary return of refugees to Burundi,” he added.

Grandi’s visit follows a High-Level Dialogue convened by the Government of Tanzania and UNHCR in March 2022 to agree on steps to strengthen refugee protection and solutions. - UNHCR

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