Why Raila’s case is bound to fail
"Raila’s advisors are ill advised to contest the election results for the following reasons;
Raila is the sole contestant in a case where there were several stakeholders among them hundreds of respected and specialist trained observers from the International and African communities, local media, international media and other political parties in Kenya. No one has expressed an interest to be enjoined.
None of the above have raised any concerns of irregularities, malpractices, rigging, and incidences of fraud or produced any evidence to the effect.
In any case, the Elections Observation Group (Elog) said they carried out a parallel tally of all constituencies and came up with similar figures to those obtained by the IEBC. Elog Chairman Kennedy Masime said that Of the 7, 000 observers deployed in the 290 constituencies, 1,000 were Parallel Vote Tabulation. He further said (PVT) involved deploying highly trained and accredited observers to a representative random sample of polling streams to assess the conduct of the voting and counting process as well as verify the official vote count.
It’s worth noting that nobody has been arrested for any election related offence. CORD must also produce in court any persons who witnessed any acts of wrong doing, which again needs to have been investigated by the Police before coming to court.
All presidential candidates including Iron Lady Martha Karua have conceded and congratulated the President elect without raising or filing a single complaint about IEBC or the process.
Not withstanding, all Parties and presidential candidates had chief Presidential agents who had access to the IEBC Chairman and further signed Form 36 before they were announced publicly to the world. No CORD agent was forced to sign any forms which were signed openly in front of cross-party officials.
The Claim of Cord complaints not being addressed can therefore be termed as null and void and tantamount to interfering with the independence of a legally appointed electoral body, their objective unknown.
It’s on record the IEBC CEO James Oswago acknowledged that where there were mistakes, they sought to correct them immediately before announcing the results publicly in agreements with chief agents.
Cord’s behaviour also broke the code of conduct all parties signed to respect the work of IEBC until the results are announced and thereafter follow the due process of law as agreed.
With the aforementioned, the issue of credibility of IEBC and the elections does not arise.
Raila’s Character as a person will have to be considered and the bench will need to consider whether this is just another fight as he actually termed the election results as “Democracy on Trial”. He will be questioned about whose interest he is acting on and this may open a can of worms especially when the defence demands to know his CORD funders.
CORD legitimate claims now only come down to the tallying. The bench without doubt will acknowledge the complexity of the exercise with more than 12 million people casting a ballot 6 times which means that IEBC handled more than 72million ballot papers for the first time. Anyone will agree that there is bound to be minor mistakes and CORD cannot provide any GUARANTEES that there would not be any mistakes if the process was repeated again. The bench will need to consider the margin between Uhuru and Raila and ascertain whether there is a big margin which warrants a repeat election when the winner achieved half of the votes alb eight with a less % margin.
It’s worth noting that the Supreme Court can also not interfere with the work of an independent body unless there is evidence of criminality. A case in point is the just concluded case where the High Court threw out the earlier case by the civil society demanding the counts to be stopped.
The issue of systems failure can be attributed to of many factors as this is common the world over where servers can reach capacity or fail because of other technical reasons. In case of human error CORD must produce evidence and persons who acted criminally to sabotage the systems.
In conclusion, beyond reasonable doubt, the bench will have to weigh the benefits of a repeat election which does not guarantee 100% accuracy and risk. This will be against several serious issues among them, the billions of shillings to be incurred in another election, billions already lost in the economy as a result of the week long waiting, schools closures and general interruption to the whole country.
The bench will also need to consider the interests of other stakeholders who have not raised complaints including the public; resources deployed by the government e.g 99,000 security agents who managed to maintain peace among other thousands of staff trained by the IEBC to conduct the elections. And mostly importantly, the judges must consider whether in the interest of public good, there is need to risk the patience, anxiety, peace and tolerance maintained throughout the process including the unfortunate several lives lost.
Therefore there are no compelling reasons to uphold the case or to order repeat elections as therein as there are no guarantees that the whole system will be fool proof and no minor mistakes will be repeated. There is also no person convicted of any wrong doing and the tallying is circumstantial.
If asked, Raila should be urged to free the country from anxiety, let the country relax and return to normalcy. He should act like a statesman for all the hard work and contribution which will earn him respect rather than engage in a futile fight as an ordinary citizen with a powerful Deputy President elect Hon William Ruto."