The climax of the August 9, 2022 presidential results petition at the Supreme Court of Kenya came to an end today afternoon.
Clarifications were sought as the judges posed various questions seeking address from the petitioners and respondents before they proceeded for a two-day break to make ruling of the petition.
Among the queries by the Chief Justice Martha Koome lead team were: Why did the chair deem it fit to assign Commissioners small tasks, leaving core business to the Chief Executive Officer (CEO)? Why did over 1.6 million votes kept streaming in hours after voting closed? How a re-run would happen without Chebukati? Issues around the 27 constituencies?
The relevance of rejected votes, scientific studies regarding the relationship of elections postponement, the definition of IEBC and the participation of the four dissenting commissioners among other key issues were some of the issues that were asked.
“Why did live-streaming of results stop at the national tallying centre?” posed the Chief justice Martha Koome during the presentation by the respondents of the case.
The petitioners’ legal teams lead by senior counsel James Orengo, questioned the conduct of the IEBC chair Wafula Chebukati on unilaterally making decisions without seeking consensus from the rest of the commissioners.
Chebukati claimed the four commissioners were at the centre-stage of the electoral malpractice by allowing illegal access to the servers by unauthorised individuals and not observing Chapter Six of the Constitution.
The petitioners faulted the Independent Electoral and Boundaries Commission (IEBC) of conniving with the developers and technicians of systems to engage in alleged fraudulent activities.
“Jose Camargo (Venezuelan) is the person who decided the president-elect of Kenya. He is the one who was interfering with the forms while figures were altered showcase as follows: The top left hand corner of the form, we were told by Gumbo (representing IEBC) there were no foreigners in this election. We were told they did not have access to the servers. At the top left corner, we have the name of Jose Camargo,” advocate Julie Soweto argued.
The petitioners’ legal teams went ahead to demonstrate how the purported Forms 34A uploaded on the IEBC portal were manipulated to fit the desired narratives. Paul Mwangi representing Raila Odinga showed the court a Form 34A from Gacharaigu Primary School, Muranga County bearing the name ‘jose.camargo’
“We believe that these are the fingerprints of one of the suspects of the theft of this election,” Mwangi argued.
On the issue of Chebukati unilaterally making decisions at the helm of the electoral body, the petitioners lamented and urged the court to act in its jurisprudence while delivering verdict on the same.
Senior counsel Zehrabanu Janmohamed questioned whether some animals more equal than others in this case referring to the chairman of the Commission whom she claimed insinuated to being more equal than everybody else.
She claimed that his conduct did not fit the intentions of the drafters of the Constitution on the electoral body office.
“The four commissioners have come out on several occasions lamenting about the conduct of the chairperson on unilaterally making decision. When an alligator comes out of water and tells you that the crocodile is sick. Do you doubt it? (Because they both live in the water).
If the election officials are tired and cannot preside over another election, we have more Kenyans who are willing to do this work properly, give them that opportunity,” Willis Otieno, one of the petitioners’ lawyers said.
Lawyer Willis Otieno said that Chebukati is not immortal and no vacuum would be created if he was found guilty and removed from office. Echoing that the country cannot collapse in case the chair resigns.
“The right thing is to make sure that the voice of the people is actually heard in a true and transparent election. Our constitutional values and provisions shouldn’t be sacrificed at the altar of convenience. There is no lacuna in the law, the sitting president continues in office until further considerations are made,” Otieno stated.
“We saw Chebukati doing duties, not doing them as part of the Commission but by himself with his clerks. Whatever the outcome of this petition we cannot have Chebukati as the chairperson of the IEBC or anything at all. How is it that every five years under the chairmanship of this officer there is a crisis? Same person, same tricks. This man (Chebukati) has done the same things in two elections. He is destroying our democratic institutions.” Nowrojee said.
The 7-bench judge is expected to give a final judgment on Monday, September 5, 2022.