Nairobi — A lawyer representing the electoral commission in the Supreme Court proceedings has told judges that four of the commissioners who attempted to procure legal representation for the commission acted outside the law.
Githu Muigai, a former Attorney General, told the seven-judge bench that the procurement of any services for the Independent Electoral and Boundaries Commission (IEBC), just like any state body, is the work of the Procurement Department.
Muigai was makinbg submissions in affidavits filed by IEBC and its Chief Executive Officer Hussein Marjan, opposing the move by Juliana Cherera and three other commissioners to procure the services of external lawyers to represent the commission after falling out with Chairman Wafula Chebukati during tallying of the final presidential results.
"It is not the work of the commissioners of IEBC, whether in majority or in minority, to procure any services, that flies totally in the face of the procurement law in this country. As we sit here now, the four who purport to have procured have committed a criminal offence," Muigai told the judges who ruled that they will only him, Eric Gumbo and Kamau Karori who were retained by the commission.
In her initial affidavit to the petition, Cherera said they met on Friday and resolved to file responses on behalf of IEBC. The four commissioners hired Issa & Company Advocates to file a fresh set of documents to respond to the petitions on behalf of the commission.
IEBC Secretariat had filed an interlocutory application seeking to strike the notice of appointment of two lawyers by the four dissenting commissioners purporting to represent the poll agency.
The judges however, declined to wade into the controversy between the electoral commission Chairman and four of the commissioners, describing their individual legal representation an "internal matter" .
This is after Chebukati retained lawyers from the commission to represent him while his deputy Cherera and three others sought representation from external lawyers due to a fallout arising from the tallying of the presidential results in the August 9 presidential election.
"The four commissioners are at liberty to deploy and utilize the services of Senior Counsel Paul Muite and Issa Mansour if they deem it necessary," Deputy Chief Justice Philomena Mwilu said in a ruling by the seven judges.
And they went on to say that " the court cannot deal with the issue or any dispute on the legal representation of IEBC as an institution in this petition. It's not the business of the court to determine who represents IEBC in whatever form," it ruled, adding "this is an internal issue that will be resolved by the IEBC, its commissioners and other internal organs."
Cherera hired retained Law Society of Kenya Chief Executive Officer Apollo Mboya, as Justus Nyang'aya retained Rachier & Amollo Advocates, Francis Wanderi opted for J. M. Njenga & Company Advocates while Irene Masit went for O. Ouma J. & Associates.
Cherera and the three commissioners have already filed affidavits in support of a petition filed by one of the presidential candidates Raila Odinga of Azimio who accuses the commission and Chebukati of manipulating the poll results to favour Deputy President William Ruto.
But according to an affidavit filed by Chebukati and his set of commissioners and the commission itself, the presidential election was above board including tallying and verification of the votes relied on in declaring Ruto the winner.
Cherera and her three colleagues dispute this, claiming that the "whole process of tallying and verification was done in an opaque manner."
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Kenya's Supreme Court on Tuesday said it had identified nine issues to determine the outcome of petitions challenging the result of the August 9 presidential election, including whether any irregularities were substantial enough to nullify the poll.
Deputy President William Ruto, 55, was declared the winner of the closely contested race, scraping to victory by less than two percentage points against Raila Odinga, a 77-year-old veteran opposition figure now backed by the ruling party.
Odinga -- who lost his fifth bid for the presidency -- rejected the outcome and filed a petition at the top court alleging fraud in the vote tallying process.
On Tuesday, the court said it will attempt to answer nine questions during the case, including whether the election commission website was hacked and if there was any interference with the transmission of result forms.
The seven judges will also ascertain if the election technology -- a hot-button issue that led to the nullification of the August 2017 presidential vote following a challenge by Odinga -- met the "standards of integrity, verifiability, security and transparency".
After assessing the transparency of the poll, the court will finally rule on whether Ruto met the constitutional threshold of 50 percent plus 1 of the valid votes cast.
The court on Tuesday directed the Independent Electoral and Boundaries Commission (IEBC), which oversaw the poll, to grant Odinga and the other petitioners "full and unfettered" access to all the computer servers used in the poll.
Odinga has alleged that hackers broke into the election servers and uploaded doctored result forms, a claim denied by IEBC chairman Wafula Chebukati.
The apex court also ruled that the votes cast in at least 14 out of around 46,000 polling stations be inspected, scrutinised and recounted.
- 'Final arbiter' -
Since 2002, no presidential election result in Kenya has gone uncontested.
This year's poll also caused a rift within the IEBC, with four of its seven commissioners accusing Chebukati of running an "opaque" process.
Nine petitions were filed to challenge the outcome, but two were rejected on Monday.
Chief Justice Martha Koome said Tuesday the seven other cases will be collapsed into a single case because they cover the same issues.
Both Odinga and Ruto -- who has been named as a defendant in the case filed by the former prime minister -- have assembled huge legal teams.
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Hearings will begin on Wednesday, with a decision expected on September 5.
The Supreme Court is the highest in the land, created under Kenya's 2010 constitution "as the final arbiter and interpreter of the constitution".
Its rulings are final and binding. If judges order an annulment, a new vote must be held within 60 days.
But if the court upholds the results, Ruto will become Kenya's fifth president since independence from Britain in 1963, taking the reins of a country battling inflation, high unemployment and a crippling drought.
The IEBC was under heavy pressure to deliver a clean vote after facing sharp criticism over its handling of the August 2017 election.
The court annulled that election in a first for Africa and ordered a re-run which was boycotted by Odinga. Dozens of people died during a police crackdown on protests.
Kenya's worst electoral violence occurred after the 2007 vote, when more than 1,100 people died in politically motivated clashes involving rival tribes.
The court's announcement of the issues that it will examine is a common procedure in Kenya, known as a "pre-trial conference."
Hearing of the consolidated petition kicks off on Wednesday with the final verdict due out Monday.
