Chief Justice David Maraga will be in the spotlight this week as he presides over the petition challenging President Uhuru Kenyatta’s re-election, following his previous criticism of the Supreme Court’s decision to ignore results of the court-ordered partial re-tallying of votes in 2013.
In a personal opinion that could have a bearing on Nasa’s current request for scrutiny, Justice Maraga wonders why the 2013 bench failed to consider the report in its ruling.
Justice Maraga’s personal opinion was expressed as a chapter entitled “Scrutiny in Electoral Disputes: A Kenyan Judicial Perspective”, and was published in a 2016 book, “Balancing the Scales of Electoral Justice: 2013 Kenyan Election Disputes Resolution and Emerging Jurisprudence”.
“As stated, at the conclusion of the scrutiny exercise, the Registrar makes a report of his or her findings.
“Such report is taken into consideration in the determination of the petition in question,” Justice Maraga, then the chairman of the Judiciary Committee on Elections, writes.
“This however does not seem to have happened in the Raila Odinga case.
“Save for the mention of mismatches between the contents of Forms 34 and 36, which it dismissed as coming belatedly in the petitioners’ counsels’ final submissions, the Supreme Court never addressed the objective and result of court supervised scrutiny,” he says.
Even as he pointed out the omission by the 2013 Supreme Court bench, CJ Maraga noted that scrutiny, such as the one that has been requested by Nasa, is not an automatic right to be granted as a matter of course since “not every claim of misconduct in an election or plea in a petition warrants scrutiny”.
He also expressed an opinion on how a request for scrutiny should be couched, stating that “irregularities or malpractices that may warrant scrutiny should be concisely pleaded in the petition and in the affidavit in support”.
“The party seeking scrutiny must therefore ensure that its petition and affidavit in support “contain concise statements of material facts” upon which the prayer is grounded,” Justice Maraga argues in his writing.
On whether or not rejected and spoilt votes should be considered in computing the final tally of presidential election results, Justice Maraga had in 2016 observed that “the issue of all the votes cast in Article 138(4) of the Constitution is far from being settled”.
As such, in the article, he had stated: “A constitutional amendment will be necessary to settle it.”
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