Nairobi — The Supreme Court has ruled that last minute wrangles in the Independent Electoral and Boundaries Commission (IEBC) cannot be a basis for nullifying the presidential election.
The judgment was read by Chief Justice Martha Koome on the issue of whether the electoral body carried out the verification, tallying, and declaration of results in accordance with Article 138 (3) (c) and 138 (10) of the Constitution.
The Supreme Court bench ruled that even though the provision of the constitution doesn't envisage that the Chairperson should act alone in the verification, tallying, and declaration of results, the four dissenting commissioner were not locked out of the process.
"We however take cognizant that the four dissenting commissioners actively took part in verification, tallying and declaration of the results from the beginning and until just before the declaration of the results," Koome stated.
"They took turns announcing the results that were verified and tallied and were present and active during the actual verification exercise at Bomas," she said.
The 7-judge bench upheld the tallying process saying IEBC Chairman Wafula Chebukati worked in line with Article 138(4) and 138 (10) of the constitution as he involved the rest of poll commissioners until the last minute before violence erupted in Bomas.
"Are we to nullify an election on the basis of last minute boardroom rapture? The details that remains of which scanty and contradictory between the chairperson and part of its commissioners," Koome stated as she read the summarized ruling.
The Supreme Court threw out Odinga's prayers that the election be nullified on the basis that the commission was unable to conduct free and fair election due to dysfunctionality.
"Clearly the current dysfunctionality at the commission doesn't affect the conduct of the 2022 elections. We are satisfied that notwithstanding the division of the commission,IEBC conducted the verification and tallying in accordance with the constitution,"Koome stated.
The lead petitioner of Raila Odinga 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.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
"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 Lawyer Kamau Karori said chairman Wafula Chebukati is indeed recognized in the Constitution as the sole Presidential Returning officer.
Karori refuted claims by the petitioners that Chebukati was a self-declared Presidential Returning officer pointing out that the argument was only meant to vilify him.
"Even this court recognizes that is the role he plays. So, It is no him who styled himself that role but this Court says he is Constitutionally mandated under Article 138 (10) of the Constitution to declare the results of the presidential election and deliver a written notification of the results to the Chief Justice and the incumbent President," Karori said.
While seeking to convince the Martha Koome led bench to dismiss the consolidated presidential petition, Karori indicated that the buck stops with the chairperson at the National Tallying Centre, in the process of receiving, tallying and verification of forms 34As as received from polling station to avoid human interference.
"Now you are being told that the commissioners need to be involved in the process of verifying and declaration of results. This introduces exactly what the court said that it does not want human intermeddling or intervention in the chain of results declaration. This ensures that there is no variance between the declared results and the transmitted ones," said Karori.
