Nairobi — Azimio La Umoja - One Kenya presidential flag bearer Raila Odinga has defended his onslaught against Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati whom he wants the Supreme Court to declare unfit to hold office for contravening the constitution.
This is substantiating the question on whether the commission acted in accordance to Article 138(c) and 138 (10) in verifying and tabulating the presidential results.
His counsel Pheroze Nowrojee explained that Chebukati acted outside the confines of the constitution in the verification, collating and tabulating of the presidential election by singlehandedly conducting these responsibilities in the absence of the rest of commissioners.
He explained that Article 138(c) of the constitution sets out that after counting the votes in the polling stations the poll commission jointly shall tally and verify the count and declare the result hence the move by Chebukati to act alone was in contravention of the law.
"Whatever the outcome of this petition, we cant have self discrediting person giving false affidavits to be the chairperson of IEBC or anything at all," he argued.
"If court finds that Chebukati is responsible and has done actions to establish a government in contravention with the constitution, we pray that you make a holding that he has made such an attempt... .this person be no longer fit to hold public office," Nowrojee said.
Nowrojee stated that by Chebukati acting by himself in the process that required thorough verification then he was simply an auctioneer who was in the business of the auctioning the most coveted seat.
"The concentration of the entire process of verification and decision making into only one individual through a gazette notice gave him the power in violation of the constitution and vested in him an asset to find a result by himself with no check,"
"if he was an auctioneer, then he had gotten himself something to auction and the supreme price in our politics had come into the hands of one person. This is a danger," he said.
Odinga's counsel noted that Chebukati months before the election became a crusader that the results at the polling station would be final ultimately knowing that he would alone verify and make a decision on the winner of the presidential elections in form 34C.
"This is why we have people going to people houses at 3am and 4am but is it something so unbelievable. How is it that every five years under the chairperson of this commissioners we have a crisis?" Nowrojee posed.
In his response before the court through an affidavit, Chebukati noted that he acted within a gazette notice dated August 8th which stipulated that results forms will be received by IEBC and further outlines that the presidential returning officer shall tally and announce the presidential results.
But Odinga's counsel poked holes on Chebukati's defense explaining that a gazette notice cannot override the commission's mandate that has been strictly stipulated in the constitution, which is the supreme law.
Norwejee accused Chebukati of altering the IEBC regulations as well as the constitution to ensure he sidelines the rest of the commissioners in the verification and tallying of the results.
"Where is such for the authority to move away from Article 138 of the constitution that moves the jurisdiction from the commission to Chebukati?" he stated.
"The subsidiary legislation in the gazette notice is void as being in total conflict with not only its principal legislation but with the constitution itself," he said.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
The Counsel argued that even though the results were verified in polling stations in the presence of the presidential agents in form 34A, the process could not absolve the critical checkpoint of verifying the form 34C which is the presidential results declaration form.
Norwojee noted that the responsibility of the seven commissioners within the commission is to overlook the process at the tallying centre and them being locked out equates to denying the people of Kenya the right to participation.
"By shutting them out those 6 were kept away from the process so that the participation of the people of Kenya over the process of establishing the will of the people was closed down,"
"The seven commissioners in IEBC are there because act as representative to the people of Kenya," he said.
