Nairobi — The Independent Electoral and Boundaries Commission (IEBC) in its defense before the Supreme Court has absolved its chairperson Wafula Chebukati from allegations of abuse of the constitution in the verification and tallying of results.
The electoral body's counsel Kamau Karori argued that the gazette notice and IEBC regulations assigning Chebukati the role of the National returning officer were promulgated on 27th April 2017.
He pointed out that the poll agency conducted the 2017 general election, repeat presidential elections and 2022 general elections with no successful application made to revoke the regulations.
"No one has ever complained about those regulation or no applications raised concern on the constitutionality of the regulations," he stated.
Subsequently, IEBC stated that the 1st petitioner Raila Odinga has participated in three presidential election where Chebukati presided over guided by the regulations that are now being termed unconstitutional.
The commission questioned why the Azimio La Umoja One Kenya presidential flag bearer was raising the alarm late in the day when the elections had been concluded and presidential outcome was not in his favour.
"To know come late in the day after you are made aware there is an election that is coming, you participated in that election knowing those regulations are there and then when you don't succeed you turn around and say that one of the regulation used was unconstitutional," he stated.
On Wednesday, Odinga defended his onslaught against Chebukati whom he wants the Supreme Court to declare unfit to hold office for contravening the constitution.
His counsel Pheroze Nowrojee explained that Chebukati acted outside the confines of the constitution in the verification, collating and tabulating of the presidential election by singlehandedly conducting these responsibilities in the absence of the rest of commissioners.
He explained that Article 138(c) of the constitution sets out that after counting the votes in the polling stations the poll commission jointly shall tally and verify the count and declare the result hence the move by Chebukati to act alone was in contravention of the law.
"Whatever the outcome of this petition, we cant have self discrediting person giving false affidavits to be the chairperson of IEBC or anything at all," he argued.
"If court finds that Chebukati is responsible and has done actions to establish a government in contravention with the constitution, we pray that you make a holding that he has made such an attempt... .this person be no longer fit to hold public office," Nowrojee said.
IEBC also wanted Raila Odinga haunted for orchestrating chaos at the Bomas of Kenya saying it was a transgression of the constitution.
The poll agency claimed that Odinga who is the first petitioner in the consolidated petition should be faulted for seeking relief in court against his move not to announce results in 27 constituencies.
Karaori argued that the move by Chebukati not to announce the remaining constituencies was a making of Odinga through his agents who caused violence at Bomas of Kenya,moments to presidential results declaration.
"Nobody should stop the process of the constitution that results to the establishment of a government. Stopping that process is equivalent to preventing the constitution from being effected. It's a transgression against the constitution," he said.
Citing Chebukati's affidavit, Karaori told the court that commissioner Abdi Guliye was supposed to announce the remaining results but with the prevailing chaos at the podium Guliye was unable to announce the as they had scampered for safety.
In his affidavit, he named Odinga's lieutenants led by Chief Agent Saitabao Ole Kanchori James Orengo, Otiende Amolo, Governor Anyang Nyong'o, Ledama Ole Kina, Gladys Wanga and Paul Mwangi surrounded them moment before the chaos.
"It can't fall from the lips of those people who tried to stop that process from coming before you and say the results of 27 constituencies were not publicly announced an yet you know, you are the one who precipitated a situation where there was disorder and chaos," Karaori told the 7 judge bench.
Chebukati counsel upheld that the tallying of the remaining 27 constituencies was done in accordance to Article 138(3c) of the constitution hence it's a weak argument that the poll chair subverted the will of the people.
"It's critical that it becomes clear to political players that decision on who will become the president of this nation is done at the polling station,"
If the numbers of the votes you got are not enough then the problem is not with the at the declaration but on the people you failed to convince to vote for you in sufficient numbers," Karaori said.
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Further, Karaori in his defense elaborated that the constitution doesn't envisage that the announcement or declaration constituency results should precede the declaration of presidential results.
"Article 138(3c) doesn't not talk about announcement of the results in the constituencies as a precusor or what will justify and validate the outcome," he said.
In their petition,The Azimio la Umoja One Kenya Coalition claimed the election results from 27 constituencies were omitted in the final tally declared by the IEBC chairman.
The Raila Odinga-led coalition said Chebukati should have declared the results as provisional pending the tallying and verification of results from the 27 electoral units.
The constituencies include Borabu, Mvita, Matuga, Kilifi North, Kapenguria, Ndaragua, Kacheliba, Narok north, south and west as well as Kajiado East.
Others are Kanduyi, Rangwe, Nyakach, Ndhiwa, Suba North, Kuria east, Bomachoge, Kitutu Chache North and West Mugirango.
The coalition says prior to the August 15 declaration, IEBC was yet to upload on the public IEBC portal Forms 34As from the 27 constituencies.
