Nairobi — The seven-judge bench of the Supreme Court raised several questions following submissions by various lawyers in consolidated petitions challenging President-Elect William Ruto's win.
Led by Chief Justice Martha Koome, the bench sought to know how the manually filled form 34A were being intercepted within servers belonging to the Independent Electoral and Boundaries Commission (IEBC), changed and then uploaded back.
Justice Smokin Wanjala indicated that 'I have been intrigued. We have this form 34A let us say it leaves the polling station by road to go to the national tallying centre. its image leaves to go to the same destination but this time by air."
"Somewhere in midair, the image is captured and all sorts of things are done before it is re-uploaded. This means if you go to that re-uploaded image, you will see different content from what it had at the polling station."
Justice Wanjala went on to say that "You would have to go back to the tallying centre and locate the one that left by road and compare. Is it possible that that capturing midair somehow magically changes the content of the one that left by road?"
A similar question was asked by Deputy Chief Justice Philomena Mwilu who wanted to know in what form was Forms 34A being uploaded onto the IEBC servers.
"When the form 34A is captured using the KIEMs kit at the polling station, is it an image, a photo or what is it called? That time when it is taken and as it is being sent originally, is it in pdf form?" she posed.
The bench further sought clarification on the genesis of the infighting within the electoral body which some of the petitioners are using as grounds for chairman Wafula Chebukati's indictment.
"When did this commission become so dysfunctional? What was the effect of becoming that dysfunctional? What corrective measures were attempted and with what result.?" Mwilu queried.
Justice Wanjala wondered why the four dissenting commissioners did not speak out earlier on the intrigues at the commission and also how powerful Chebukati is to intimidate the commissioners.
"We have been informed that the commissioners were allocated roles other than those for which they were appointed. Why didn't they protest? Is this chairperson we are dealing with such a terror that no one can deal with," he stated.
The judges also questioned some of the reliefs sought by the petitioners among them a declaration that Chebukati was culpable of electoral malpractice and should be found unfit to oversee elections as well as unfit to hold office.
"You have asked this court to find the chairman culpable of various breaches and even if there should be a repeat election, he cannot preside... My dilemma is, this is a constitutional office holder. Under Article 251(2) there is a detailed procedure for the removal of a constitutional office holder. How do we go about that?" Koome asked.
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Justice Mohamed Ibrahim also questioned the legal basis of the relief sought by the petitioners who are asking for a nullification of the recounts, a recount of votes and declaration of Azimio leader Raila Odinga and his running mate Martha Karua as winners of the August 9th presidential poll.
"We would like you to lay a legal basis for this in your rejoinder. No remedy or relief that has been sought will be taken casually... Is this doable, feasible in law and in all other practical ways?" posed Justice Ibrahim.
The Supreme Court also sought clarification on how, the postponement of Governor elections in Kakamega and Mombasa Counties affected the outcome of the presidential polls yet elections for all the elective seats are separately provided for in the law.
"You said the postponement of election in certain areas resulted in voter suppression. People wake up one morning to vote for a specific category of voters. E.g MCA, Senator but not the other positions? Do we have any scientific nexus to this or is it just an assumption that this happens?" Justice William Ouko questioned. "
The hearing of the petition continues on Thursday with the verdict set for Monday.
