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Martha Karua files case at regional court over August election

Karua, an advocate of the high court, and Khelef Khalifa, a human rights activist from the Muslims for Human Rights (MUHURI), have filed a joint case at the East African Court of Justice in Arusha, Tanzania.

The duo are challenging the decision that upheld William Ruto’s election as the president of Kenya.

“Kenya’s electoral management body and the Supreme Court subverted democracy and undermined the rule of law through their actions in the 2022 presidential election,” the petition filed at the regional court says.

The Independent Electoral and Boundaries Commission (IEBC) is accused of having “engaged in multiple acts that violated the rights of the applicants and of other citizens”.

The petitioners claim that “[…] unauthorised persons accessed, deleted and uploaded election results, and that the electoral management body, which was dysfunctional, did not investigate or respond to complaints”.

Karua wants the regional court to order Kenyan authorities to conduct “transparent, independent, and professional investigations into all [the] violationsallegedly committed by IEBC and the Supreme Court of Kenya.

A statement to the media says the petitioners are “relying on the Treaty for the Establishment of the East African Community to argue that the actions and decisions of the two organs of State violated their rights”.

[…] the Supreme Court refused to examine all the evidence presented before it, neglected to fully inquire into the technology applied, while condoning IEBC’s cover-up

On September 5, Kenya’s Supreme Court dismissed seven petitions challenging the validity of Ruto’s win, ruling that there was no evidence to back claims that the presidential vote was not free and fair.

However, the two petitioners argue that they were “frustrated in their attempt to access justice through a fair trial [and that] the judges did not compel IEBC to supply all the information necessary to vindicate their rights”.

“[…] the Supreme Court refused to examine all the evidence presented before it, neglected to fully inquire into the technology applied, while condoning IEBC’s cover-up in refusing to grant access to its technology, [which was] critical to determining the matter fairly, in disregard of its own orders.”

Not her first time

This is not the first time that Karua, a former long-standing MP for Gichugu Constituency, is seeking justice at the regional court.

In 2019, she filed a case over the decision by the Supreme Court of Kenya to dismiss her petition challenging the election of Anne Waiguru as governor of Kirinyaga County. She argued that the apex court had infringed on her right to a fair trial.

[..] my case [at] the Supreme Court was poorly handled and thrown out without facts

A year later, a three-judge bench ruled that the court in Kenya had indeed denied Karua a fair hearing and awarded her $25,000 in damages.

“What I have been awarded is far much less than what I have spent in the petition, but I’m joyous because my supporters and the people of Kenya now know that my case in the Supreme Court was poorly handled and thrown out without facts,” she told The East African newspaper, a regional publication.

‘Accept defeat’

Karua’s latest case at the regional court over the 2022 presidential elections has attracted ire and support in equal measure.

Gachoki Gitari, an MP from her backyard of Kirinyaga County, has slammed the move saying she should accept that her coalition lost.

“Karua should stop wasting time at the East Africa Court of Justice, let her focus on checking on the government,” he says, adding that she should instead focus on oversight of Ruto’s government.

However, Raila’s spokesman, Prof. Makau Mutua, says the Azimio la Umoja coalition is still fighting for justice.

“No one should imagine that the Kenyan presidential election is over. We’ve never conceded anything. Stay tuned,” he said on Twitter.

According to Kevin Ochol, a political analyst in Nairobi, Karua’s goal is for the regional court to have a different opinion, even though the Kenyan court ruling cannot be overturned.

Ochol adds that the language used by the Kenyan judges, including phrases like “hot air” to show that the evidence presented by Karua and Raila was weak, could have provoked Karua to file the petition at the regional court.

“Karua is seeking to show that the Kenyan judges were not fair in their determination,” he tells The Africa Report.

Brief history of the regional court

The East African Court of Justice was launched in November 2001.

Its main responsibility is to ensure that the seven member states of the community and individuals respect the law in the interpretation and application of and compliance with the EAC Treaty.

Other responsibilities include: Providing  Advisory Opinions; Preliminary Rulings to National Courts; and Arbitral awards if contracts and agreements confer jurisdiction.

Members include Kenya, Uganda, Tanzania, Rwanda, Burundi, South Sudan  and lately the Democratic Republic of Congo.

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