Chebukati role: Lawyers disagree in petition row
Lawyer Paul Nyamodi, who is leading petitioner Youth Advocacy Africa’s legal team. He said presidential election returning officer position does not exists.
Lawyers representing electoral agency chairman Wafula Chebukati yesterday defended his role as the presidential election returning officer, citing a 2017 Supreme Court ruling they said provided clarity on the matter.
Mr Chebukati’s role in the presidential election came up during the Supreme Court proceedings on Wednesday, with lawyer Paul Nyamodi, who is leading petitioner Youth Advocacy Africa’s legal team, saying, no such position exists.
According to Mr Nyamodi, the position of national returning officer is neither backed by the Constitution nor the Elections Act.
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Appointed himself
The lawyer accused Mr Chebukati of appointing himself to the position, contrary to the provisions of the law.
“There is no position like the national returning officer. He gazetted himself as the national returning officer. As a matter of good electoral practice, returning officers are gazetted with their deputies — the chairman gazetted himself with no deputy,” Mr Nyamodi said.
But lawyer Kamau Karori, appearing for the Independent Electoral and Boundaries Commission (IEBC) in the ongoing presidential petition, yesterday dismissed the arguments against Mr Chebukati’s role.
Mr Karori insisted that the role exists, and no less than the Supreme Court had affirmed it.
“The option cannot be that we are the majority of the commission so a declaration cannot be made; that is [holding the commission to ransom]. That responsibility [of declaring the President-elect] is cast on one person,” Mr Karori said.
Commission as corporate body
Mr Karori said the commission referred to in the Constitution does not mean the entirety of the commissioners as individuals but the commission as a corporate body.
He argued that it would be impossible for the commissioners to approve all the results as announced in all the polling stations.
Mr Karori’s position was supported by the ruling delivered by the Supreme Court in a petition filed by Mr Raila Odinga in 2017 that led to the nullification of President Uhuru Kenyatta’s win.
“The second respondent, the chairperson of IEBC, who is also the returning officer for the presidential election, is constitutionally mandated under Article 138(10) of the Constitution of Kenya to declare the result of the presidential election and deliver a written notification of the result to the Chief Justice and the incumbent President,” the Supreme Court said in paragraph eight of the 2017 judgment.
Prof Githu Muigai, who is leading the team representing Mr Chebukati as well as commissioners Abdi Guliye and Boya Molu, also defended IEBC, saying, the agency conducted the August 9 presidential election in strict compliance with the guidelines provided by the apex court.
‘He is the commission’
“When the chairman declares the presidential election results, he is the commission. The Constitution does not intend that the commission is to be sitting in plenary and voting because little of the commission’s work involves voting. If we cure that misunderstanding, the rest will follow and it will be clear that Mr Chebukati was acting as the commission in the manner defined by the Constitution,” Prof Muigai said.
