The electoral commission's CEO Marjan Hussein Marjan has compromised a key witness in the Wajir gubernatorial election petition by offering him a top job at the polls agency, the High Court heard yesterday.
Governorship poll loser Hassan Mohammed Adam, who is challenging the election of Ahmed Abdullahi as Wajir governor, said that the Independent Electoral and Boundaries Commission (IEBC) boss is defeating justice by inducing witnesses in the petition.
Mr Adam's lawyer Issa Mansour told the court that one of his key witnesses, Mr Abdullahi Muhamed, has declined to appear before the court to testify on the malpractices that allegedly rocked the 2022 gubernatorial elections in Wajir County.
Judge George Dulu heard that the witness was an agent for the petitioner, who vied for the county's top job and came second.
"IEBC CEO purported to offer this witness a job for six months from November 1, 2022, to May 31, 2023, as a director of Audit and Compliance. That offer was calculated in order the witness does not testify before the court," the lawyer claimed.
However, the IEBC, through lawyer Mahat Somane, denied the allegations, saying the commission only offers jobs it has advertised.
Mr Somane asked the court to order the petitioner to file a formal application and affidavit over his allegations so that Mr Marjan and the IEBC could respond.
"IEBC does not give jobs unless a job seeker applies. The commission in this matter complied with all regulations and statutory laws laid down. We are confident of what the commission did during the 2022 gubernatorial elections," Mr Somane said.
"The court should not make any negative or positive inference following the allegations made until the petitioner files a formal application," he stated.
In a short ruling, Justice Dulu ordered the petitioner to file a formal application about the allegations that Mr Marjan has compromised a witness.
"On the issue raised by Mr Mansuor on the employment of one of his intended witnesses by IEBC, if he wants to pursue that issue he should file a formal application and serve," said Justice Dulu.
The judge also declined a request to block Mr Mansuor from representing the petitioner in the dispute over an alleged conflict of interest.
IEBC and Mr Abdullahi wanted Mr Mansour blocked from acting on the case over allegations that he also represented the commission in other matters.
Mr Somane also said that Mr Mansour represented the four commissioners who dissented on the presidential election results, during the hearing of the presidential election petition at the Supreme Court.
"Mr Mansour was an advocate acting for the majority of the commissioners in the presidential petition at the Supreme Court. For good order and to avoid conflict of interest, Mr Mansour should stop representing the petitioner in this matter. There are so many lawyers in the country the petitioner can hire," Mr Somane said.
In the case, Mr Ibrahim Mohamud Abdurahman, who was a senatorial seat candidate on Kanu ticket in the county, was the first to take the witness stand and narrated how the electoral commission failed to use the Kenya Integrated Elections Management System (Kiems) kits on election day in the areas believed to be strongholds of Governor Abdullahi.
"In the morning, the Kiems kit were functioning, but later in the day, the kits were not being used, especially in the constituency that is believed to be the stronghold for the elected governor," the witness told the court.
The witness further claimed that the Kiems kits were working in some polling stations but were not being used by the IEBC officers.
It was also claimed that there were marked ballot papers in favour of Mr Abdullahi.
The court heard that some ballot papers were marked at the governor's compound and that the matter was reported to the police.
"People were given double-marked ballot papers for the position of the governor and Wajir Central Constituency. Police officers in some wards failed to provide security, this led to low voter turnout in many of the regions," the petitioner's witness told the court.
Mr Abdullahi was declared the winner of the gubernatorial election after garnering 35,533 against Mr Adam's 27,224.
Mr Adam alleges the election was not free and fair and did not meet the constitutionally acceptable threshold as it was marred by irregularities and violence.
The petitioner says violence in Wajir East on the eve of the elections day was orchestrated to suppress the voter turnout.
He adds that there were attacks across Khorof Harar ward that started a day before the elections and stopped after the elections.
The violence, he added, hindered voting and led to polling stations being opened late.
Mr Adam further argues that IEBC did not put in place mechanisms to ensure that the voters were biometrically identified before being allowed to vote for candidates in a number of polling stations in Wajir County.
"The election for Wajir County governor was not conducted and carried out in accordance with the provisions of the Constitution, Elections Act or the Election General Regulations nor in accordance with principles laid down or any law relating to the conduct of elections. The election was also not conducted in accordance with the decision of the superior court on the conduct and management of elections, consequently, the incumbent governor was not validly elected as governor for Wajir County," says the petitioner.
He adds that he does not accept the counting and tallying of votes that were done by the IEBC because the process was marred with padding of votes, exaggeration of voter turnout, irregular and unlawful assisted voting and unlawful ejection of his agents from several polling stations in Wajir East and Wajir West constituencies. He also complains of intimidation and misinformation.
The hearing continues.