Explain commissioners role, IEBC told
The Supreme Court judges yesterday took to task the Independent Electoral and Boundaries Commission (IEBC) lawyers over the role of commissioners in the verification, tallying and declaration of the presidential results.
Led by Chief Justice Martha Koome, the judges sought to know why there were divisions in the commission, whether the decisions made by chairperson Wafula Chebukati supersede any other decision and whether the remaining six commissioners are assigned any duties to perform during the conduct of a General Election.
Koome asked IEBC lawyers to demonstrate to the court the role of commissioners during an election and whether the commission’s Chief Executive Officer, who is not vetted by Parliament, has more powers than the commissioners.
“What we ought to understand is this disconnect brought by IEBC yet the role of IEBC is to conduct the election. We want to know whether the commissioners live the core business of IEBC which is to supervise the elections to the CEO,” she said.
Four commissioners
Koome further asked IEBC lawyers, led by Githu Muigai, to address the issue of the 50 per cent plus one vote required to declare a winner.
She also sought to know why Chebukati failed to tell the country that the four commissioners had dissented before declaring William Ruto president-elect.
The CJ also questioned why the live streaming of the presidential election results was stopped yet this would have given an opportunity to the losing side to decide whether to present themselves to Bomas of Kenya for the announcement of the results or not.
Deputy Chief Justice Philomena Mwilu also sought to know what the walk-out by the four commissioners meant, considering that they addressed a press conference at the Serena Hotel as Chebukati remained at Bomas of Kenya to announce the results.
Agents question
Mwilu also sought to know the roles of the commissioners as outlined in the Constitution.
She reminded the counsel that a ruling had been made in 2017 to the effect that while numbers matter in an election, other things were equally important.
“The most important day of the commission is when they are conducting an election. Please counsel and tell us what is the role of the commission,” she said.
Mwilu demanded to know how an independent agency is expected to operate taking into consideration the meeting with the National Security Advisory Council (NSAC) that met the commissioners hours before the pronouncement of the results as well as the argument by Justice Isaac Lenaola that the commission had one more day to announce the results.
The Deputy CJ asked the lawyer to explain what happens should parties and candidates fail to have agents in a polling station yet the election Act is clear that the commission should conduct a free and fair election. “In 2017, this court was also told about the issue of agents. I would like to ask what if there were no agents. The Constitution places the burden of ensuring we have a fair free and credible election on the IEBC. Is it not the role of IEBC to ensure that this is upheld?” she asked.
Justice Njoki Ndung’u asked Githu’s team to explain the checks on the chairperson should he be holding executive powers and what would happen in his absence, because of death or incapacitation.
“The chairperson worked with the Chief Executive who seemed to hold power. My question then would be what do these commissioners do? What is the role of these commissioners? We need to understand how leadership and management work at the commission as opposed to the presidential petition,” she noted.
Venezuelans
Justice Smokin Wanjala, who also asked questions regarding the exact roles played by the commissioners, sought to know whether the three Venezuelans had access to the IEBC system.
Wanjala noted that the counsel admitted to the fact that the Venezuelans had access to the servers as far as maintenance of the system was concerned.
“You have conceded that the Venezuelans had access to the servers with regards to maintenance. What is this maintenance? Please tell us,” he said.
He also sought to know whether NSAC officials were aware of the results to be announced going by the comments of Chebukati that they went to his office to alter the final results.
“In King Solomon’s story, one of the mother claimants was saying ‘cut the baby’. The other one said ‘no, let her take the baby’. Would you be willing to advise... (Laughter) I rest my case,” Wanjala asked lawyer Kioko Kilukumi.
Today the judges will listen to the final submission by the petitioners and respondents.
