Nairobi — A 'sweaty' Willis Otieno - the lawyer representing Khelef Khalifa and others in the presidential petition, mounted a spirited submission on Wednesday on the legality of the presidential results, which were declared by the Chairperson of the Independent Electoral and Boundaries Commission (IEBC) Wafula Chebukati.
Otieno put on a show in the courtroom before the seven apex court judges, reminding them of the famous words of former Chief Justice David Maraga that "an election is a process that ends upon the determination of the true wish of the voter."
According to Otieno, Chebukati reduced the entire process to a circus of a "pinky pinky ponky" child's game in total disregard of the provisions of the Constitution.
Khalifa and others are challenging the victory of President-Elect William Ruto.
In his submissions, Otieno asked the Martha Koome-led bench to trigger criminal sanctions against Chebukati and Commissioners Boya Mulu and Abdi Guliye whom he accused of committing atrocities.
"An independent body must conduct elections. However, the presidential election whose results we are disputing were conducted by an un-independent individual, not a body," Otieno said.
He stated that Chebukati's conduct, where he sidelined his four other colleagues in the process of tallying and verifying the presidential results, amounted to illegality that should not go unpunished.
"If Kenyans desired to have an individual, we should have simply reverted to 1980 when we had a supervisor of elections," Otieno said.
Four Commissioners, including Vice Chair Juliana Cherera and Commissioners Justus Nyangaya, Irene Masit, and Francis Wanderi, have disassociated themselves from the results that Chebukati declared.
Otieno submitted that the disclosure by the four is reasonable grounds that, indeed, Chebukati bungled the election and should be made accountable.
He also told the court that Chebukati failed to comply with the recommendations contained in the KPMG audit report, notably on the issue of the voter register.
He submitted that the report had recommended the removal of details of 481, 711 persons who were unqualified to be in the register, but the Commission never acted to remedy the anomaly in its final log, which was published.
"The universe of the election was already compromised at initial and the number by which it is compromised could affect and did affect the results," Otieno said.
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Otieno was candid that Chebukati, from the onset, was hell-bent on subverting the people's will, which he said was not reflective of what he announced on August 15, 2022.
"In this election, I submit that the people had their say, but the machines and technology had their way," he said.
The former Prime Minister, who unsuccessfully vied for the top seat a fifth time, wants the court to nullify the election.
Odinga insisted that in the event the court grants him the prayers, Chebukati should not be the one to oversee it.
Nullification of the election would send Kenyans back to the polls, which must be conducted within 60 days, with the specific day being November 4, 2022.
If the Judges uphold the election of President-Elect William Ruto, he will be sworn into office on September 13, 2022.
