I think presidential petition is special one. It heard once - and in record 14 days. The limits are in the constitution. The rest can be applied in MCA or etc. In fact there is barely enough time to do a recount even if SCORK wanted. Chebukati took 7 days. Now imagine a court ordered process...can it be done in 14 days - including today when time has started ticking. It cannot. So basically it's either valid or invalid.
Reading through Azimio badly done petition it sounds very political - they are asking for DCI to investigate IEBC - count election - do magic in all the 14 days -?
The reality is - Supreme Court - will sit in a day or two - for pre-conference - after consolidating all the 4-6 petitions.
All these respondents will have to file their own response with evidences - more truck loads of evidence - perhaps in usual 4 days.
So you see - we then have one week - for hearing and determination.
Even simple stuff like getting server access last time were time-barred.
So SCORK presidential petition is limited - and SCORK powers very limited - to 1) Valid or 2) Invalid - mostly prima-facia - or intuitively. Asking for SCORK to order recount or investigation is playing politics.
What they can do is get a sample of problematic forms - and use that to make inference - to either validate or invalidate.
And they cannot order IEBC how to conduct elections - they can give guidelines - but IEBC will do it's job. They cannot remove Chebukati - that has to be done via parliament - where Azimio will need a petition and tribunal - etc et.
I'm willing to let the Court grapple with this and the other constitutional question about the IEBC quorum. The Constitution says if the election is invalid, a fresh election will be conducted. Question for the Court is whether the election as a whole is invalid if any part of it at all is invalid, even the tail-end, or a substantial part of it. Imagine a case where someone gets 7.5 million, no. 2 gets 6.5 million, and IEBC under a Moi-like president just outright declares no. 2 the winner. Would the court force a new election when the declaration is manifestly wrong as opposed to just quash that one and order the IEBC to issue the requisite certificate to the rightful winner?
Seems both Azimio and KK are quick to throw away statutes when they don't favor them. Azimio are doing it when it comes to IEBC quorum and KK when it comes to the powers of SCOK in correcting wrongful IEBC declarations. The truth is, the Constitution only quashes Acts of Parliament that have been shown to contradict it. So if a statute exists, it's up to both Azimio and KK (in their respective arguments) to prove in what way they're contradictory as opposed to merely filling gaps.
