Electoral commission chairman Wafula Chebukati yesterday broke his silence, accusing four of his colleagues who disowned the presidential elections results of unsuccessfully pushing for a runoff, further aggravating the fault lines at the divided agency.
In a statement a day after the Independent Electoral and Boundaries Commission (IEBC) officials disowned the presidential results announced their boss, Mr Chebukati claimed they had wanted him to declare that none of the candidates hit the 50 per cent plus one mark to secure a first round win, and which would have forced a runoff pitting the two leading contenders.
In the elections held on August 9, Mr Chebukati declared William Ruto president-elect with 7,176,141 votes (50.49 per cent). This meant Dr Ruto narrowly avoided a runoff with 69,000 votes. Mr Odinga, who polled 6,942,930 (48.85 per cent), has rejected the results, terming them a nullity. Yesterday, Mr Chebukati, in a five-page statement, dismissed his four colleagues’ accusations before throwing the spanner in the works with the claims of their unsuccessful bid to demand a runoff.
Mr Chebukati says the four commissioners—vice-chairperson Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit—made the demand at 3pm on August 15, minutes before the four walked out and addressed a presser at the Serena Hotel and before Mr Chebukati declared Dr Ruto validly elected.
“The four commissioners demanded that the chairperson moderates the results for purpose of forcing an election re-run,” Mr Chebukati said. This, he added, would have been against the law and a betrayal of the commissioners’ oath of office.
“This is tantamount to subverting the Constitution and the sovereign will of the people of Kenya. The chairperson refused to yield to this unconstitutional and illegal demand and proceeded to declare the results of the presidential election as received from the polling stations, and contained in Form 34A, in accordance with the law,” he said.
And while the four commissioners insisted that they had a role to play before the declaration of the results, Mr Chebukati shot back, saying, such a responsibility was not shared.
“The constitutional mandate falls squarely on the chairman of the commission, who is the National Returning Officer as gazetted in Notice No. 4956 of April 28, 2022. The role of National Returning Officer for Presidential Election is not a shared responsibility and not subject to plenary decisions of the commission,” Mr Chebukati said. He cited his oath of office—which all returning officers also had to take—as not allowing him to alter the results in the manner he suggested the commissioners wanted.
“It is an oath of office that the chairperson faithfully executed, when he declared the results for the presidential election on Monday, August 15, 2022,” Mr Chebukati said.
Citing a Court of Appeal decision that warned against the “sweeping and boundless power” in the presidential elections returning officer, the four commissioners had said the IEBC chairman’s failure to involve them in the final phase of the results declaration was illegal.
“The commission chairperson has conducted the election as though he is the National Returning Officer, a non-existent role, and his role in declaring results that were not approved at plenary by all seven commissioners renders the results unconstitutional to the extent that [these] are Chebukati’s results as opposed to those of the IEBC. In keeping with Article 138(2) of the Constitution, there is no national presidential election in Kenya but rather the presidential election is held in each constituency,” the four commissioners said in a statement Ms Cherera read on Tuesday.
This legal position by the Cherera Four, Mr Chebukati said, was erroneous, as he was the sole returning officer for the presidential elections.
According to Mr Chebukati, the 2022 General Election was “the most transparent election that the Commission has ever held.”
“All result Form 34As were uploaded in real time and are available in the public portal and the original Form 34As were delivered to the National Returning Officer for tallying and verification by the 290 Constituency Returning Officers and one Diaspora Returning Officer. Agents of all presidential candidates participated in an elaborate verification process,” Mr Chebukati said, insisting that IEBC was ready to defend the result in case of a Supreme Court petition.
On the claim by the four commissioners that the declared result exceeds the 100 per cent tally—with a 0.01 per cent that they erroneously said amounts to 142,000 votes, and not 1,420—Mr Chebukati said such an allegation was false.
“The alleged 0.01 per cent increase in the presidential election results raised by the four commissioners is false and misleading. We urge Kenyans to interact with these results and make an objective judgement,” Mr Chebukati said.
The scientific tally, Mr Chebukati said, was that Dr Ruto was at 50.4894943 (50.49), Mr Odinga 48.8486813 (48.85), Roots Party candidate Prof George Wajackoyah 0.2250524 (0.23), as well as Agano Party candidate David Mwaure Waihiga 0.00435998 (0.44).
At the same time, Mr Chebukati said that, following the controversial declaration, his life and those of Commissioners Abdi Guliye and Boya Molu and a section of the commission staff are in danger after they were subjected to harassment by individuals he did not name.
“During the announcement of the presidential results, the chairman Wafula Chebukati, commissioners Prof Abdi Guliye and Boya Molu, and CEO Marjan Marjan were physically attacked, assaulted, and injured by persons in the company of certain political leaders. We call for the arrest and prosecution of these assailants regardless of their political affiliation,” Mr Chebukati said.
This harassment, Mr Chebukati said, had led the commission to postpone indefinitely by-elections for the Kakamega and Bungoma governorship as well as in five constituencies.
The by-elections were slated for August 23, 2022.
“In view of the prevailing circumstances, the commission has postponed the by-elections to a date to be announced through a gazette notice,” stated the IEBC boss.
Apart from Kakamega and Mombasa counties, the IEBC suspended elections in Kitui Rural, Kacheliba, Pokot South and Rongai constituencies due to errors on the ballot papers as well as a mix-up of the ballot papers.
“The commission is concerned that some of its critical staff, who objectively and impartially performed their duties, are being intimidated and harassed through profiling and arbitrary arrests. This has instilled fear within the staff, who are now unable to report to the office for duty,” Mr Chebukati claimed.
This comes as Mr Daniel Musyoka, the returning officer for Embakasi East Constituency, was found murdered and his body dumped in Kajiado after being reported as missing last Thursday.
“Mr Musyoka, just like the late ICT Manager, Chris Msando, was murdered while on duty. This was a well-trained officer who performed his duty with utmost honesty, integrity, and dedication. It’s unfortunate that his stand to do the right thing cost his life,” he said, and challenged the country’s security agencies to “speedily” investigate and apprehend the killers.