Supreme Court judges’ tough questions to lawyers
Supreme Court judges during the presidential election petition hearing Nairobi on September 1, 2022.
During the presidential election petition hearing on Thursday, Supreme Court judges had a few questions on the lawyers' presentations.
To Ruto, IEBC team:
Justice Martha Koome
a. Why did the chairperson deem it fit to allocate commissioners domestic chores leaving core business of IEBC to CEO to supervise?
b. Why were they allocated other duties as opposed to their constitutional mandate?
c. Why didn’t the chairperson tell Kenyans exactly what happened, that “we did election and we have these results but we have a dissenting voice and this is why they are dissenting”?
d. Why didn’t he explain to Kenyans where the other commissioners had gone when he was making the announcement?
e. Why was the live streaming stopped?
f. How were Forms 34As in the petitioners’ affidavits photoshopped?
Justice Philomena Mwilu
a. Clarify what is the constitutional role of the six commissioners under Article 140 of the Constitution. Juxta-pose their role against that of the secretariat and the chairperson.
b. The fact that numbers are undisputed, comment on the walking out of the four commissioners almost as the chairperson was almost to announce the results.
c. Does their walking out mean anything under Article 140? If it does why?
d. Did the postponement of eight electoral areas affect only presidential vote? Have the subsequent election returned a different result to the turn-out? If they have, in what respect?
e. What is the IEBC supposed to do when there are no agents for the candidates since Article 81 places burden of ensuring that we have a fair and free election on IEBC?
f. What is the position to be taken by a commission in an election dispute?
g. What is the role of the seven commissioners?
h. Is it a position to be taken by any party or neutral like IEBC? If they take a position as they have done in this case, what is the court to do?
i. Tell me what IEBC was supposed to do. On one hand they were being told to hurry up yet they still had another day?
Justice William Ouko
a. What constitutes stray ballot and how are they distributed to counties?
b. Did you have instances where a voter walked in a polling station voted for one candidate and not the others?
c. Was Wafula Chebukati appointed as an agent for the presidential election by the commission or was as national returning officer in his capacity as the chairman of the commission?
d. Assuming manual register was used, are you able to say what was the actual number in the polling stations?
e. Respond to what Okiya Omtatah presented in a power point demonstrating that 1.6 million votes were streaming in many hours after closure of voting.
f. Explain why the commission stopped streaming the results live on a screen at the National Tallying Centre?
Justice Isaac Lenaola
a. Could you speak to the qualitative and quantitative value of the numbers and what is the test to apply?
b. Why was Chebukati in a hurry to announce the presidential election results yet he had an extra day to do so, then reach to the other commissioners, arrive at a consensus and address the concerning the results from the 27 constituencies?
c. Talk about Regulation 87(3) of the Elections Act.
d. The format of the elections results Form was initially jpeg, at which point does it convert to PDF, forget the CSV.
e. What do you want the court to do about the submission that Chebukati lied about the visitation by the National Security Advisory Council?
Justice Njoki Ndung’u
a. To IEBC- You said the term commission can be used in multiple senses. How do we know which sense applies and when?
b. What happens if the IEBC chairman announces the wrong results, or becomes incapacitated or dead? Who will announce the result?
c. What is the role of the other commissioners?
d. Since the IEBC chairman is emerging as a powerful person, who checks him/her?
e. What happens when the chairperson decides to work with the CEO who is not vetted?
f. When results come for the other seats and announced or declared at constituency, how is that information transmitted to public?
g. When transmitted, are the commissioners involved or is it CEO only or it is the chairperson only involved in the declaration of the transmitted results?
Justice Smokin Wanjala
a. What is oversight if the commissioners are not involved?
b. What was the supplier of technology, Smartmatic International, maintaining in the elections system?
c. What was the maintenance of the server by the Venezuelan?
d. If purpose of call to Chebukati by Joseph Kinyua was to influence the decoration of results, are we to assume they (NSAC) already knew the results?
e. On the voter turnout announced by the chairman and said it would rise, how relevant is it in determining whether a candidate garnered 50% plus one.
f. When calm restored at the National Tallying centre, why didn’t the chairperson include the results of the 27 constituencies in the announcement?
Justice Mohamed Ibrahim
a. Would you expect us to make a determination on the chaos that occurred at the National Tallying Centre and attribute blame yet the matter is not before us?
Compiled by Joseph Wangui and Richard Munguti
