The Supreme Court closed the second day of submissions in Court Thursday evening.
This was after lawyers representing the Independent Electoral and Boundaries Commission (IEBC), its chairman Wafula Chebukati and president-elect William Ruto and his Deputy Rigathi Gachagua made their submissions to the seven-judge bench.
The court went on a health break after listening to the submissions for the better part of the day and returned shortly after 6 pm with questions it considered as pertinent to the petition filed by Raila Odinga and Martha Karua against the declaration of William Ruto as president-elect.
The Chief Justice allocated the respondents time to respond to the questions early Friday morning before the case proceeds to its scheduled business of the day.
Each of the judges had the following queries directed to the team of lawyers.
Chief Justice Martha Koome
“What we want to understand is the disconnect at the IEBC. Why did the chair deem it fit to allocate small duties to commissioners and the core business of the commission to the secretariat?
Constitution says the commissioners have a role of scrutinizing results before the declaration. Why didn’t the chair tell Kenyans what exactly happened? That some of its commissioners had a dissenting voice?
Why was the live streaming of the results stopped?”
Deputy Chief Justice Philomena Mwilu
“As regards the requirements of article 140 and Article 138 (3) (c), what is the constitutional role of the six commissioners.
Differentiate their (IEBC Commissioners) role against that of the secretariat and the chairperson.
You argued that numbers point to a good election if they are not affected by anything. On the walking away of the four commissioners and holding a parallel press conference almost at the same time as the chair was about to declare the results. How was it timed? Does their walking out mean anything? If it does what is it? If it doesn’t why not?
You said that voter turnout was affected by the postponed election. Did the postponement affect only the vote of the president? Have the subsequent elections returned a different result? If yes in what respect?
It is the responsibility of parties to have agents. What if there were no agents? Article 81 places the burden of ensuring that we have a free fair election on the IEBC. Where agents are not present, is it not the role of IEBC to ensure Article 81 (e) is upheld?
What is the position to be taken by a commissioner? Is it a party or a neutral position as the IEBC? If they take any sides, what is the court to do?
Tell me what the IEBC chairperson was supposed to do when on one hand they are being told to hurry and announce the results and on the other hand they have another day to do so?”
Justice William Ouko
“Tell us how many votes constitute stray ballots.
Share with us how those stray ballots are distributed per county.
Did you have any instances where voters walked in and voted for president only?
Was the IEBC Chair gazetted as an agent of the commission or as a national returning officer in his capacity as the chair? If he was gazetted as an agent, were there were any resolutions?
According to Mahat’s presentation, 45, 995 polling stations out of 46, 229 identified voters using a KIEMS kit successfully. This means that 235 did not use KIEMS kits. If the manual system was employed, can you say the numbers from the 235 polling stations?
You demonstrated how Kenyans were following the streaming of results which stopped. What happened to make the transmission stop?”
Justice Isaac Lenaola
[Prof Githu] Muigai said the dispute revolves around numbers, in 2017 you were here as the Attorney General at the time. Could you speak to section 83 of the Constitution?
Why did Chebukati not wait for the next day, reach out to the four commissioners who had a different voice and get to a consensus. Is there any reason why he did not take advantage of the extra day and resolve pending issues?
What do you want the court to do with the information you have given us about the four commissioners? Say something about regulation 87 (3)
Mr Mahat, format is JPEG, at what point does it convert to PDF?”
Lady Justice Njoki Ndung’u
You suggested the term commission can be used in multiple senses. How do we know which sense is applied when?
We know the history of Independent commissions, and drafters of the constitution meant to eradicate the one powerful leader factor. What is the check of this powerful chairperson? What would happen if he announced the wrong results, dead or was incapacitated?
What is the role of the other commissioners? You have suggested that the chairperson works with the CEO who is not vetted by parliament. Help us understand the leadership of the commission.
When results for other posts (Governor, Senator, MP, County MP and MCA) come in after declaration, how is the information transmitted to the public? If it is through a gazette notice, who is involved? And what is the implication?
Justice Smokin Wanjala
Lawyer Karuri, what is oversight? At what point does the chair disengage from the other commissioners? When do you say this is the chair with his powers and the chair of the commission?
Lawyer Mahat said there was no penetration or intrusion of the technology. However, you conceded that the Venezuelan had access to the server as part of maintenance. What was the maintenance? What was he maintaining?
The inconsistencies in the voter turnout numbers. How relevant is it in determining whether a candidate got 50 per cent plus one?
You said senior officers of visiting the premises at Bomas to express their concern as their work dictates. Then say they wanted the chair to manipulate results. If the intention was to influence election results, does it mean they already knew the results?
Why would the chair not include the results of the 27 constituencies?
Justice Mohamed Ibrahim
You blame the petitioners’ party supporters, agents and sympathizers. Would you expect us (the court) to apportion blame when we were not there and did not witness? Tell us whether you expect any outcome on that matter?
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