Respondents made their case yesterday against Azimio leader Raila Odinga, who is challenging the outcome of the 2022 presidential election, attempting to persuade the apex court not to annul the August 9 polls.
The Apex court judges grilled the legal team defending President-elect William Ruto and Deputy President-elect Rigahthi Gachagua on their arguments before the court citing concerns regarding clarification to understand some of the arguments raised by the petitioners.
After presenting their arguments, the judges had the following questions for the petitioners.
Chief Justice Martha Koome
- Why did the IEBC chair deem it fit to assign commissioners small tasks, leaving core business to CEO?
- Article 138, 3c, why didn’t the chair not inform Kenyans what exactly happened and explain the dissence by other commissioners?
- Why did the live streaming stop?
- To lawyer Mahat Somane: Please demonstrate how the Forms 34As were photo shopped.
Deputy Chief Justice Philomena Mwilu
- What’s the constitutional role of the 6 commissioners under article 140? Relate this with that of the secretariat and of the chair.
- Numbers are critical as per 138., iv, a and b. Its helps arrive at the threshold. As long as they are not affected by anything else. How did the walking away of the 4 commissioners. Affect the process? Does this mean anything under 140? If it does, what is it? If it doesn’t, why not?
- Did the postponement affect only presidential vote? Have the subsequent elections returned a different turnout result?
- Its IEBC that conducts elections. Yet you blamed absence of agents on certain events. What if there were no agents? You mentioned Tiaty where there were no agents for any candidate. How was the process.
- What should be the position of the commissioners in a petition like this? What should court do if they take a different point?
- IEBC is independent body and there is a claim that they were put under pressure by Kinyua and NSAC. So, what was IEBC supposed to do? They were under pressure to complete, yet they had one more day. So, what was the expected results?
Justice William Ouko
- Are there voters who just walked in, voted for President only and left? How many are they and can you break them per county?
- Was Chebukati gazetted as chair of IEBC or as RO? Were there resolutions preceding this appointment?
- What are the numbers from the 235 PS?
- Omtata said 1.6M votes were streaming in hours after voting closed…your comments?
- What caused the stoppage of live streaming of results?
Justice Isaac Lenaola
- Prof Githu Muigai said the whole dispute revolves around numbers… looking at the qualitative/quantitative test, What is the approach we should apply?
- Why couldn’t Chebukati wait an extra day, reach consensus with other commissioners, and address the issue of 27 constituencies? Why was he in a hurry?
- To the AG: what do you want this court to do with your opinions?
- To Mahat: at what point does the format convert from jpeg to pdf?
Lady Justice Njoki Ndungu
- To Prof Githu: you have different definitions of IEBC. How do we know which definition to apply when?
- Commissions were made independent to avoid the powers of one person. How then do we have an all-powerful chair? What happens if chair is dead, sick or unable? Who announces the results?
- What is the role of other commissioners? CEO is not vetted by parliament but seems to be more powerful than commissioners.
- Are commissioners involved in the declaration of other results apart from Presidential?
- What are the implications of what you are saying under 138 to the chairs of other independent commissions?
Justice Smokin wanjala
- You said tallying and verification is the role of the chair IEBC, then you said statues require commissioners to perform oversight roles. What is oversight if they can’t oversight verification and tallying of results? At what point does the chair disengage from being commissioners to being the chair with all these powers?
- You said there was no infiltration into the system. Then you said the Venezuelan has access to the server. And said that it was because of maintenance contract. So, what was the maintenance role in this case?
- What was the turnout and what was the relevant in determining 50 +1?
- If Chebukati said NSAC visited Bomas to influence him to change results, do we assume that they already knew results that’s why they visited Bomas?
- When calm was restored, why didn’t the Chair include the 27 constituencies?
Justice Mohamed Ibrahim
- There was commotion at Bomas, and you blame agents/ supporters of applicants, but there is no evidence placed before us to that effect. Do you still expect us to apportion blame without the matter placed before us?