Electoral commission boss Wafula Chebukati is a man under siege as seven petitions seeking nullification of presidential election results accused him of violating the law and appointing himself the in-charge of the race for Kenya’s highest office.
All petitioners challenging the election results claimed that Mr Chebukati had used non-existent laws and policies to take exclusive control of the presidential election so as to avoid scrutiny when manipulating results.
One of the heaviest onslaughts on the Independent Electoral and Boundaries Commission (IEBC) chairperson came from lawyer Paul Nyamodi, who ferociously but unsuccessfully represented Mr Chebukati in similar proceedings five years ago.
Mr Nyamodi is representing Youth Advocacy Africa, one of the petitioners seeking a nullification of the August 9, 2022 presidential election.
In his submission to the court, Mr Nyamodi held that the IEBC chairperson illegally created the position of returning officer for the presidential election, then used the position to avoid scrutiny on the gimmicks he used to ensure Deputy President William Ruto was announced the winner.
Mr Nyamodi added that the IEBC boss appointed himself returning officer of the presidential election through a gazette notice, and is now trying to trick the court into believing that the position exists in law.
The lawyer argued that Mr Chebukati unlawfully allocated four commissioners – Juliana Cherera (vice chairperson), Justus Nyang’aya, Francis Wanderi and Irene Masit – roles that had nothing to do with verification and tallying of results, but appointed his supporters at the IEBC to assist with the process.
CEO Hussein Marjan and commissioner Abdi Guliye were appointed as Mr Chebukati’s assistants in tallying and verification of presidential votes.
“In the chairman's own words, that is how the tallying and verification in the presidential election took place. To attempt an answer to the question whether IEBC carried out tallying and verification in line with Article 138, I would answer that question to the negative. A quick look at the IEBC Act would show that those three gentlemen (Chebukati, Marjan and Guliye) are not the IEBC,” Mr Nyamodi said.
Siaya Governor James Orengo, for Azimio la Umoja presidential candidate Raila Odinga, said the verification and tallying of presidential election results is the responsibility of the commission and not of the chairman alone.
He said Mr Chebukati’s role is to formally declare the presidential result and issue the certificate to the president-elect, after the commissioners have verified and tallied the results from polling stations.
A nullification of the presidential election and disbandment of the electoral agency as prayed by Mr Odinga will see Kenyans wait longer for the next president to take office.
Four commissioners led by Ms Cherera distanced themselves from the declaration of Dr Ruto as the President-elect because they were not involved at the tail end of the process.
They also claimed that Mr Chebukati failed to tally and verify results from 27 constituencies, raising doubts on the outcome of the presidential election.
Mr Chebukati has defended himself, saying chaos broke out at the national tallying centre at the Bomas of Kenya before the results from the 27 constituencies were declared.
“How absurd can it be? The commissioners were relegated from their core function, which was taken over by the chairman,” Mr Willis Otieno for activist Khelef Khalifa submitted.
The lawyer said the electoral commission’s system was compromised from the beginning and the problem at IEBC was systemic.
He asked the court to make appropriate orders for action to be taken against the IEBC chairman.
“He (Mr Chebukati) took no remedial measures and went ahead and conducted the elections in the manner in which it was conducted,” he said, observing that the chairman never took into consideration recommendations made by the Supreme Court after it nullified the presidential election in 2017.
He pointed out that Mr Chebukati, together with Prof Guliye and Mr Boya Molu are the only commissioners who were involved in the 2017 General Election and they had done nothing to improve the electoral agency, as directed by the Supreme Court following the nullification of the presidential results in the last elections.
“They are the only commissioners who procured the kits … The court should make appropriate orders. It is time that Chebukati should be shown that the will of the people cannot be interfered with. Why should the people suffer anxiety after every election?” he asked.
The seven judges of the top court heard that the lack of transparency in the tallying and verification of the results erodes public confidence in election.
Mr Otieno pointed out that the Directorate of Criminal Investigations (DCI) conducted an investigation and found that foreigners indeed interfered with the elections. He said the DCI report corroborated an audit conducted by KPMG early in the year, of unauthorised entries into the voters’ register.
“There was a deliberate attempt to ensure the election was compromised,” he said.
Ms Julie Soweto for Mr Odinga also claimed that there were 23,550 stray ballots in Kirinyaga County, and the stray ballots have not been sufficiently explained by IEBC.
She asked the judges to consider the difference in votes cast for the president and other positions, arguing that it was relevant, considering the slim margin with which Dr Ruto was declared the winner.
“There was evidence of remote access to the IEBC system three days after the voting process ended. There was the transmission of numerous forms from a single server contrary to the expectation that the forms would come from several Kiems kits,” she said.
The court will this morning start hearing submissions from IEBC and its chairman as well as Dr Ruto, and also receive a report on the scrutiny of ballot boxes from 15 polling stations, as ordered by the court on Tuesday.