Nairobi – Azimio La Umoja – Raila Odinga, a standard-bearer for the Kenyan President, has defended his attack on Independent Electoral and Boundaries Commission (IEBC) Chair Wafula Chebukati, whom the Supreme Court is expected to find unfit for violating the constitution.
This raises the question of whether the Commission acted under Rules 138(c) and 138(10) when reviewing and tabulating the Presidency results.
His attorney, Pheroze Nowrojee, stated that Chebukati acted outside the bounds of the constitution in reviewing, compiling, and tabulating the presidential elections by performing these duties single-handedly in the absence of the rest of the commissioners.
He explained that Article 138(c) of the Constitution provides that after the votes have been counted at the polling stations, the Electoral Commission shall collectively count and verify the count and establish the result, so Chebukati’s move to act alone was against the law.
“Whatever the outcome of this petition, we cannot have a person discrediting themselves and making false affidavits to be the chair of the IEBC or anything,” he argued.
“If the court finds that Chebukati is responsible and took action to form an unconstitutional government, we pray that you will find that he made such an attempt…that person is no longer fit to to hold public office,” Nowrojee said.
Nowrojee explained that Chebukati, who acted himself in the process that required thorough scrutiny, was simply an auctioneer in the business of auctioning off the most coveted seat.
“Concentrating the entire review and decision-making process on just one person through a notice in the Official Gazette gave him unconstitutional authority and gave him the opportunity to find a result himself without scrutiny.”
“If he was an auctioneer, he had gotten something to auction and the highest price in our policy had fallen into the hands of one person. It’s a danger,” he said.
Odinga’s attorney noted that Chebukati became a crusader months before the election, knowing that the results at the polling station would be final, knowing that he alone would review the winner of the presidential election on Form 34C and make a decision.
“That’s why we have people going to people’s houses at 3am and 4am, but is that so incredible. How come we have a crisis every five years under the chairmanship of this commissioner?” Nowrojee posed.
In his response in court by affidavit, Chebukati noted that he acted within an Aug. 8 notice that stipulated that the results forms would be received by the IEBC and further outlined that the President’s Returning Officer would review the President’s findings count and announce.
But Odinga’s lawyer pushed Chebukati’s defense through and through, stating that a notice in the Official Gazette cannot overrule the Commission’s mandate, which is strictly laid down in the Constitution, the supreme law.
Norwejee accused Chebukati of changing the IEBC regulations as well as the constitution to ensure he marginalizes the rest of the commissioners in reviewing and counting the results.
“Where is the authority to move away from Article 138 of the Constitution, which shifts jurisdiction from the commission to Chebukati?” he explained.
“The ancillary legislation in the notice of the Official Gazette is void because it is in complete contradiction not only with its main legislation but also with the Constitution itself,” he said.
The attorney argued that although the results were verified at polling stations in the presence of the presidential agents on Form 34A, the process could not resolve the critical checkpoint of verifying Form 34C, which is the form used to declare the president’s results.
Norwojee noted that the responsibility of the seven commissioners within the commission is to oversee the process at the counting center and that their lockout is tantamount to denying the people of Kenya the right to participate.
“By excluding them, these 6 were kept out of the process, ending the participation of the people of Kenya in the process of determining the people’s will.”
“The seven commissioners of the IEBC are there because they act as representatives for the people of Kenya,” he said.