Nairobi — Fresh details emerged on Thursday on behind the scenes stand-off over what Independent Electoral and Boundaries Commission (IEBC) Chairperson Wafula Chebukati has termed as a State-orchestrated attempt to "moderate" the presidential election result.
While making submissions on behalf of Attorney General Kihara Kariuki, Senior Counsel George Oraro defended the National Security Advisory Committee (NSAC) from allegations of attempting to manipulate the outcome saying instead the security organ only intended to support IEBC in the execution of its mandate.
Oraro told the Supreme Court while making oral submissions on the consolidated presidential election petition that Chebukati had been duly notified of NSAC's intention to meet him at the National Tallying Centre.
He said despite Head of Public Service Joseph Kinyua notifying Chebukati of the intended visit, the electoral agency's Chairperson kept the NSAC delegation waiting for four hours.
"When the NSAC delegation arrived at Bomas, nobody was at hand to receive them. They waited for four hours," Oraro told the court presided over by Chief Justice Martha Koome.
The Attorney General's advocate was responding to an affidavit by Chebukati in which the IEBC Chairperson told the court the NSAC delegations which included Principal Administrative Secretary at the office of the President Kennedy Kihara, Solicitor General Kennedy Ogeto, Inspector General of Police Hillary Mutyambai and Lieutenant General Francis Omondi Ogolla (Vice Chief of Defence Forces) asked him to alter results of the election to force a run-off in the event he was unable to declare Raila Odinga the winner.
Chebukati had told the court through an affidavit that the message relayed by NSAC cautioned that if he declared William Ruto as the President - Elect, "the country is going to burn."
Kihara is reported to have to indicated that skirmishes between the Kikuyu and Luo communities had already started "in several slums including Kibera and Mathare on the basis of alleged 'betrayal by the kikuyu'."
"The second part of the message from the NSAC delegation was that if we cannot announce Raila Odinga as the outright winner, then we must ensure that there is a runoff," Chebukati submitted.
The contest over a runoff emerged as a key issue in the schism in IEBC with four IEBC commissioners -- Juliana Cherera (Vice Chairperson), Francis Wanderi, Justus Nyang'aya, Francis Wanderi and Irene Masit -- who disowned Chebukati's declaration of Ruto as President-Elect saying an accurate tally would have resulted in a runoff.
The Cherera-led team also accused Chebukati of sidelining them in the management of the verification process at the National Tallying Center.
IEBC however denied the claims in suit papers supported by Chebukati, commissioners Boya Molu, Yakub Guliye as well as the agency's CEO Hussein Marjan.
Chebukati's team also challenged an assertion by petitioners contesting the outcome of the August 9 presidential election on grounds that the result was not validated by the plenary.
Prof Githu Muigai, former Attorney General, who led IEBC legal team in making oral submission before the Supreme Court defended the commission Chairperson from claims of running a one-man show and side-lining four commissioners.
"The suggestion that we should have a plenary conversation about the result is what that would cause huge ramifications to this country," Senior Counsel Kamau Karori told the court.
"What would happen if after the elections are conducted and completed, commissioners for whatever reason take different positions and decide that they're not agreed on the declaration to be made and that a declaration cannot be made until they're all agreed?" he posed.
Karori also challenged the notion that the implied meaning of IEBC, in running an election, as an institution is the 7-member plenary consisting the Chairperson and six other commissioners, excluding secretariat staff.
He affirmed that Article 138 (10) was specific on who bared the role of declaring the presidential election result and that in doing so, the Chairperson would work with staff of the commission and not commissioners exclusively.
"If that is what was intended by the Constitution, nothing would have been easier for Article 138 (10) to have made reference to members of the Commission," Karori stated.
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Article 138 (10) required that: "Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall- (a) declare the result of the election; and (b) deliver a written notification of the result to the Chief Justice and the incumbent President."
Karori went on to say that had the law required the declaration to be backed by a plenary resolution, Article 138 (10) would have been clear on the same.
"It is deliberate that it only required the Chairperson to declare the results and in my humble submission, is that the protection intended by Article 138 (10) worked in these circumstances," Karori stated.
Justices Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko are expected to retreat at the weekend to write a judgement to be delivered on Monday with oral submissions set to close on Friday.
