Chebukati’s a nullity: Kenya has no president-elect 

I address my fellow Kenyans and the international community about this year’s elections and the role of the Independent Electoral and Boundaries Commission (IEBC), the body mandated by the law to conduct and manage elections in Kenya. On August 9, millions of Kenyans turned out in large numbers in an attempt to choose their leaders at the national, county and local levels after long and generally peaceful campaigns. But on August 15, our budding democracy suffered a major setback. As a result, Kenya faces a grave legal and political crisis as a result of the actions of Wafula Chebukati, the IEBC chair.

Our laws are clear about how IEBC should conduct its business. There is no more important role for IEBC than the conduct, transmission and tallying of the presidential election. We are painfully aware of past political biases by IEBC that plunged this country into its darkest chapter. The terrible memories of the aftermath of the 2007 elections are still fresh in our minds. In 2017, the Supreme Court nullified the presidential election again because of the misconduct of IEBC. What we saw on Monday was a travesty and a blatant disregard of the Constitution and the laws by Chebukati and a minority of IEBC commissioners.

The law is clear on the role of IEBC chair. The law does not vest in him the powers of a dictator to rule the commission unilaterally. IEBC is structured as a democratic institution in which decisions must be taken either by consensus or by a vote of the majority. The chair and a tiny minority of commissioners have no legal authority to take weighty decisions and proclaim them as the rulings of the commission. 

The law provides that unless a unanimous decision is reached, a decision on any matter before the commission shall be by a majority of the members present and voting. In addition, the court of appeal in the Maina Kiai case, ruled we iterate as we conclude that there is no doubt from the architecture of the laws we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the chairperson of the appellant. 

That is why I, Azimio-One Kenya and the nation at large, were shocked to learn that Chebukati alone decided to pronounce himself on the supposed winner of the 2022 presidential elections. We understand only Chebukati had access to the tally of the presidential vote. He denied all the commissioners access to that information until he suddenly appeared before them late afternoon to present them with a fait accompli.

I understand the commission had previously agreed on the tally of the presidential results. But barely two hours before his announcement, he called a meeting of the IEBC and revealed to them the different results he was going to announce. Four of the seven protested his actions, but Chebukati, whose mind appeared made up, did not entertain any discussion of the results, precipitating a walkout by the four who promptly denounced the results in public. 

Our view in Azimio is clear. The figures announced by Chebukati are null and void and must be quashed by a court of law. In our view, there is neither a legally and validly declared winner nor a president-elect. Chebukati’s announcement of a winner is a nullity. He acted with gross impunity and in total disregard of the law. He could have plunged the country into chaos had our supporters not exercised great restraint. Such blatant acts of impunity can be a threat to national security.  It is not up to us to decide whether  Chebukati has committed an offense. We leave that to the appropriate authorities. For the avoidance of doubt, I repeat, we totally and without reservations reject the presidential results announced by Chebukati.

I want to commend our supporters for remaining calm and keeping the peace, and I urge them to continue to do so. Let no one take the law into their own hands. We are pursuing constitutional and lawful channels and processes to invalidate Chebukati’s illegal and unconstitutional pronouncement. We are certain justice will prevail. I want to further commend the heroism of the four commissioners who stood up to the bullying and illegal conduct of Chebukati. We are proud of them and ask them not to fear anything.  Kenyans are with them.

I do not want to fully address our strategies going forward but suffice it to note that we will be pursuing all  constitutional and legal options available to us because we regard the many flaws in the elections and the wrongs committed by IEBC as fatal to the process and the outcome announced by Chebukati. 

We urge Kenyans and the friends and partners of Kenya to stand tall and be counted as we seek to advance the ideals of democracy and an open society that we have always stood for. We will pursue justice for our supporters and for all Kenyans so that their choices are respected and honoured.  May God bless you and may God bless Kenya.

— Statement of Raila Odinga, the Azimio-One Kenya presidential candidate im the August 9 polls