Editorials
My take on Wajir governor’s appeal case at the appellate court
The bench at the Courts of Appeal. (Courtesy)
By: Sadiq Ibrahim
Allow me to begin that it’s in the public domain that Mohamed Abdi Mohamud who was the first respondent in the election petition No: 14 of 2017, lost fair and square even though he never agreed with the ruling. He respected the court’s decision and as per our expectations, he moved to the Court of Appeal which happens to be within his right incontrovertibly. But why did he move so fast and what is the end-game?
Before I take you there, I would like to bring to your attention what transpired after the report of the scrutiny which was prearranged by the court, was submitted.
I was emphatically convinced that both first and third respondents’ lawyers gave the first respondent a regret call on 9th November, a day before the scrutiny was tabled before the honorable court.
IEBC lawyers clearly warned the governor’s lawyers not to advice their client to appeal since they won’t be part of the appeal. The matter couldn’t be agreed, hence remained standstill and all parties went mute and the governor was deserted.
The verdict day arrived, everyone knew it would be very painful , the judge went to the details of the case as the Macharia-led counsel drafted a short note on a piece of paper which led to the beginning of the appeal.
As a student of law, I decided to revisit a small note which I made during the entire proceeding for purpose of relevancy and I realized the following issues happen to be under determination and the issues were:
(a) Whether the Gubernatorial Election for Wajir County held on 8th August, 2017 was in accordance with the Constitution and electoral laws.
(b) Whether there were any electoral malpractice and/or offences during the Wajir County Gubernatorial Election held on 8th August, 2017 which affected the outcome of the Gubernatorial Election.
(c) Whether the 1st respondent was lawfully qualified to vie for the Wajir Gubernatorial Election on the 8th August, 2017.
(d) Whether the 1st respondent was validly elected as Governor for Wajir County in the Election held on 8th August, 2017.
(e) Who should bear the costs of the Petition and what should be the instructions fee on the Petition.
I couldn’t answer these questions by myself and I decided to look for the entire judgment to test the level of my understanding as far as the weight of the judgment is concerned. I realized that in the ruling, the judge never left me out.
The judgment further clarified on paragraph 151 that there were serious discrepancies in all the 53 polling stations during scrutiny, while on paragraph 153, the judgment clearly outlined that Several Form 37As were found not to be of the required standard.
The 3rd respondent did supply all originals of Forms 37As as ordered. Some forms were copies while others were carbon-copies. There were forms in the ballot boxes which differed with the ones supplied by the 3rd respondent at the scrutiny. Polling station diaries were not sealed in the ballot boxes as required. They were in possession of the 2nd respondent.
Some of them had alterations that were not countersigned. Ballot boxes from sixteen (16) polling stations did not have counterfoils.
As indicated earlier, Forms 37Bs from three constituencies were found wanting. These were for Wajir North, Tarbaj and Wajir South. Honestly, which lawyer would want his/her client to continue with such case? I think no one unless the client want to believe in facetious.
By all means, the petition appears like a ploy to buy more time to be in government.
Let me make the following lucid that IEBC is the only institution with sole responsibility and rights to answer and be questioned on the validity and the process of an election consequently kills the expectation of ratifying anything to do with an election since they are not claimant, but a respondent.
Secondly, Mohamed Abdi has no legal aptitude to answer any question regarding the legitimacy of process. Thirdly, the question before the bench is whether he will contest or not in the forthcoming by-election.
What exactly was in the applicant’s submission?
The applicant categorically challenged the high court’s judgment on his academic qualification? How the law and constitution was interpreted by the high court and the standard of proof used to determine his case.
The following had to be said both about the high court judgment and on yesterday’s proceedings.
That the applicant, who was then a respondent during the high court proceedings, failed to appear during the cross examination to defend his academic qualification hence has no right to have the attention of the appellate court.
That paragraph 25 of the judgment, the judge evidently stated that having established the standard of proof, who then bears the burden of proof as per section 107 of the Evidence Act, Cap 80 of the Laws of Kenya.
That the court has used over 15 precedents to determine the interpretation of the law and constitution.
That is my take until the 20th of April when the ruling will be made.
