Lawyers split on decision by 4 IEBC officials to dispute results
IEBC chairperson Wafula Chebukati.
Lawyers are divided on the implications of the decision by four members of the electoral agency to dissociate themselves from the presidential election results announced on Tuesday.
This comes as the political battle for State House pitting Azimio leader Raila Odinga against United Democratic Alliance candidate William Ruto heads to the Supreme Court.
Some lawyers maintain the declaration of Dr Ruto as President-elect by Independent Electoral and Boundaries Commission (IEBC) chairperson Wafula Chebukati is null and void as a result of disagreement by four out of seven commissioners.
On the other hand, some other legal minds argue that concurrence of the commissioners is not mandatory.
The issues around disagreements and quorum at the IEBC are emerging as preliminary grounds for a petition that is likely to be filed soon at the Supreme Court.
Some lawyers believe the announcement should have been made by Mr Chebukati in the presence of all the other six commissioners.
Tallying of numbers
Another issue that could constitute preliminary grounds for a petition is the tallying of numbers and allegations by some commissioners that Mr Chebukati had sole access to the portal where the final tally was being conducted.
The Supreme Court Presidential Election Petition rules, 2017 make it mandatory for a petitioner to indicate the grounds on which the petition is presented and set out the arguments supporting each of the grounds.
Lawyers have also differed on whether the IEBC should have a quorum of four commissioners as stipulated in the IEBC Act or three commissioners as provided in the Constitution to announce presidential election results.
Left with three commissioners
At the time of declaring Dr Ruto as the winner, Mr Chebukati had been left with three commissioners, after four deserted him citing ‘opaqueness’.
“Any results IEBC chair Wafula Chebukati announces are invalid because he had no quorum of commissioners to hold a plenary and make such a weighty decision,” law professor Makau Mutua, who is also the spokesperson of the Raila Odinga 2022 presidential campaign team, tweeted.
But constitutional lawyers Ahmednassir Abdullahi and Charles Kanjama said the Presidential Returning Officer does not legally require authority or presence of the other members of the commission to declare election results.
No legal implication
According to Mr Abdullahi, the decision of the four commissioners — vice chairperson Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyang'aya — to disown the results has no legal implication and cannot form a basis for invalidating Dr Ruto’s victory.
“It has zero impact because on a presidential election, the chairman is the returning officer with mandate to declare results and no role to be played by anybody else. The decision of the four commissioners is suspicious and political and could have been aimed to cause crisis and prepare a court action,” said Mr Abdullahi.
“Any court or tribunal that will take that dispute will easily see this was not a natural process but one created for political expediency,” he stated.
He further argued that due to the transparency exhibited by the IEBC during the tallying of votes, it would be difficult for the 2022 presidential poll results to be invalidated.
For his part, Mr Kanjama said although the results are valid and cannot be invalidated based on the decision of the four commissioners to dissociate themselves with the outcome, their decision creates a suspicion that there could be something wrong with the outcome.
Supreme Court petition
He said in the event a petition is filed at the Supreme Court challenging Dr Ruto’s victory, it would be upon the petitioner to demonstrate through evidence that the commission erred in its declaration.
“Were these results properly prepared or was there something wrong in the preparation? That is the kind of enquiry that the court will go into. Result is open to invalidation if evidence is shown to demonstrate they failed the requisite of free and fair election,” stated Mr Kanjama.
Another lawyer, Dr Irungu Kang’ata, who is also the governor-elect for Murang’a County, said the move by the four commissioners does not affect the poll outcome.
“There is no legal impact of that rejection. It is the chairman who announces the results of a presidential race. It is not the commission,” said Dr Kang’ata.
Quorum issue a non-starter
He believes the issue of quorum is a non-starter based on provisions of Article 138(10).
It states that “within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall declare the result of the election; and deliver a written notification of the result to the Chief Justice and the incumbent President.”
