Rows not enough to nullify election

The last-minute wrangles in the leadership at Independent Electoral and Boundaries Commission (IEBC) would not have been a basis for nullifying the presidential election, the Supreme Court ruled.

The detailed judgment rendered yesterday 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 led by Chief Justice Martha Koome found that despite the wrangles experienced at the commission between the chairperson Wafula Chebukati and the four dissenting commissioners, the presidential election was conducted in a proper manner.

They further ruled that even though the constitution does not envisage that the Chairperson should act alone in the verification, tallying, and declaration of results, the four dissenting commissioners were not locked out of the process.

“Despite the apparent divisions between the Chairperson and the four Commissioners of IEBC, the Court was persuaded that IEBC carried out the verification, tallying, and declaration of  results in accordance with Article 138 (3) (c) and (10) of the Constitution. Moreover, the mandate of  tallying and verification of votes is vested in the Commission collectively and the Chairperson cannot exclude any member or members of the Commission. However, the declaration of the Presidential Election result vests exclusively in the Chairperson,” ruled the Judges.

The seven-judge bench upheld the tallying process saying IEBC Chairman 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 remain of which are scanty and contradictory between the chairperson and part of its commissioners?”

“In the absence of any evidence of violation of the Constitution and our electoral laws, how can we upset an election in which the people have participated without hindrance, as they made their political choices pursuant to Article 38 of the Constitution? To do so, would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of IEBC. It would set a dangerous precedent on the basis of which, the fate of a Presidential Election, would precariously depend on a majority vote of IEBC commissioners, “they stated.

The Supreme Court threw out Azimio presidential candidate Raila 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.

Odinga centered around the split between IEBC Chairperson Chebukati camp supported by two commissioners Abdi Guliye and Marjan Hussein and that of vice chairperson Juliana Cherera who sided with three other commissioners including Justus Nyang’aya, Francis Wanderi and Irene Masit.

“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,” judges stated.

The court made findings on grounds that the four commissioners Cherera, Nyang’aya, Wanderi and Masit actively participated in the tallying and verification of the results.

The court, however, ruled that the dissension was not sufficient enough to prove that the election was compromised.

“All the petitioners contend that the walkout by the four commissioners called to question the credibility of the entire election. We note that apart from their 11th-hour denunciation there is no proof that the election was compromised,” read part of the judgment

As to whether the IEBC chairperson Chebukati acted unilaterally in tallying and verifying presidential votes at the national tallying centre the court said the power to verify and tally presidential election results vest not in the IEBC chairperson but the commission.

“We find that pursuant to Article 138 (3C), the power to verify and tally vest not in the Chairperson but in the Commission. The latter carries exercise through the secretariat staff and other persons hired.” said the judges. The court further found that the chairperson cannot allocate to himself the power to verify and tally the results of  the presidential election.