Nairobi — Lawyers representing the Independent Electoral and Boundaries Commission (IEBC) on Thursday 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.
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.
The lawyer who formed part of the four-member legal team representing the commission, with Chairperson Wafula Chebukati and commissioners Boya Molu and Abdi Guliye represented by another set of lawyers in their individual capacities, said a requirement for the plenary to agree on the result would create room for a constitutional crisis in light of the events preceding the declaration of William Ruto as President-Elect on August 15.
"We got a declaration made because it is the obligation of the Chairperson to make the declaration and anybody unhappy the option available is for them to come the court. It cannot be that a number of commissioners can decide to walk out so that a declaration does not take place," he told the seven-member court presided over by Chief Justice Martha Koome.
The Supreme Court was expected to conclude hearings on the consolidated presidential election petition on Friday.
In filing the petition, Ruto's main challenger Raila Odinga alongside his running mate Martha Karua alleged electoral fraud further saying the President-Elect failed to attain the constitutional threshold of 50 per cent of the ballots cast plus an additional vote commonly referred to as the fifty plus one rule.
Odinga's legal team led by Senior Counsel Orengo also questioned the discrepancies between votes cast in the presidential election compared to other electoral contests including gubernatorial races held concurrently.
They dismissed reports of stray ballots as well as prison and diaspora votes which are limited to the presidential election -- that could account for the discrepancies -- as improbable.
Lawyer Julie Soweto also alleged manipulation of tallies saying votes cast in favor of Azimio candidate were in some instances deducted.
Lawyers Paul Mwangi and Pheroze Nowrojee completed the lead petitioners' arguments after the court capped the number of lawyers for main parties at four.
Nowrojee faulted IEBC Chairperson Wafula Chebukati accusing him of dangling the August 9 presidential election adding that he should not remain as the head of the electoral agency whatever the outcome of the petition.
Ahead of a weekend retreat to draft the court's decision, Justices Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko on Wednesday raised a number of points for clarification from submissions by the petitioners.
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The court asked the petitioners to elaborate of key constitutional issued including what would follow if the court grants a prayer to declare Chebukati unfit to hold office and a fresh election is to be held within sixty days in strict compliance to constitutional timelines.
The judges asked counsel while making rejoinders, to take note of the fact that a Chairperson of the IEBC must be an individual qualified to be a judge of the High Court, a dictate that may require a recruitment process to comply.
The court also asked for clarity on why it took four commissioners so long to register their dissatisfaction with the process.
"We saw them declaring results all along. Why did they come out at the eleventh hour," Justice Lenaona posed in reference to commissioners Juliana Cherera (Vice Chairperson), Francis Wanderi, Justus Nyang'aya, Francis Wanderi and Irene Masiit -- who disowned Chebukati's declaration of Ruto as President-Elect.
The court is expected to issue a summary ruling on Monday, September 5.
