KAMPALA – On Monday 15 August, Kenya’s Independent Electoral and Boundaries Commission (IEBC) declared Kenya’s outgoing Deputy President William Ruto as the country’s next President. According to the results declared by Wafula Chebukati, Ruto won with 50.49% of the votes, narrowly defeating veteran opposition leader and Prime Minister Raila Odinga who obtained 48.85% of the votes cast. The other Presidential Candidates Mwaure Waihiga and Wajakoyah also managed to pick some percentages below 1% each.
Four IEBC Commissioners and Raila Odinga have since come out to pin Wafula Chebukati for having inflated the results by a 0.01% over and above the 100% mark. It is this ground among others that have informed Raila’s legal team to seek court redress with a view to causing the nullification of results as was the case in 2017.
Of course, there are only two decisions that the Kenyan Supreme Court can make, to either invalidate the Presidential elections or uphold the same under Article 140 of the Kenyan constitution. There is no chance that they can revisit the entire process and declare Raila Odinga as the winner, to say so amounts to wishful thinking.
Looking back at the elections held on 9 August 2022, Kenya’s IEBC declared the results after 5 days of waiting. Wafula Chebukati said the Supreme Court had pointed an accusing finger at his Commission in 2017 and would do anything within his means to avoid being discredited in his last term as Chairman and Returning officer. He said his Commission was determined to ensure that the 2022 general election is carried out in “strict conformity with the Constitution and the applicable electoral laws. What is not so clear is whether or not any of the candidates secured the mandatory 50+1 and a minimum of 24 counties out of the 47 recognized counties.
As of the 22nd August, 2022, the Supreme Court had confirmed the filing of a petition by Raila Odinga and others with the hope that Ruto’s victory would be annulled. Surely with a lorry full of evidence, how much time is available to the court to internalize all that paperwork? We are told four petitioners have each filed a petition. Kenya’s laws require that an aggrieved party in a Presidential election must file a petition within seven days from the date when the results are declared, that period expired on the 22nd August, 2022 at 2pm. News coming in from Kenya show Raila’s Lawyers first filed the petition on line and later delivered hard copies to Court.
The law further requires service upon the respondents within one day to enable them file their response within four days. A seven-bench Supreme Court justices will then set down the petition for hearing by the 29th August and must deliver their judgment within 14 days. I have a feeling that some of those petitions are diversionary and deliberate and I believe some have been filed by Ruto’s allies to create more confusion in court and make it hard for the Supreme Court to deliver a fair decision. We are told the Commissioners were sued in their individual capacity.
One of the likely grounds in the petition will relate to the protest by the four Commissioners who walked on Wafula Chebukati before the final announcement of the Presidential elections. I personally have an issue with the timing of their walk out and the fact that they were given a green light by the government to address two press conferences on a sensitive matter that would easily throw the country into chaos. I hope against hope that these Commissioners are not part of a ploy to confuse Raila Odinga into relying on their evidence. I have a feeling that they-Commissioners will swear affidavits for or against Raila’s petition but later fail to appear in court to be cross examined rendering the testimony of no evidential value.
They may even allege that they were threatened on kidnapped or that they realized that their contracts do not allow them to testify against their employer. In the alternative, they will appear in Court only to strengthen Ruto’s case and in so doing lay a foundation for the dismissal of the petition as lacking substance. Left with no option, William Ruto will be sworn in leaving the 77 Raila in the cold and dejected for another 5 years. The 2027 election will find Raila aged 83years and in a hopeless state.
Am told Raila’s team has crafted a couple of grounds for determination by the Supreme Court one of them being Chebukati’s decision to announce the results without quorum. For starters, Raila’s team needs to draw a line between the role of the IEBC Chairman and the role of the Chebukati as Returning officer for Presidential elections. As chairman, Chebukati needs to build consensus with his commission before taking a major decision on matters of IEBC. However, Returning officer, he does not need any one’s permission to declare the results as he did in declaring William Samoei Ruto as President–elect of the Republic of Kenya.
The walkout by the Commissioners is therefore of no consequence. Article 138(10) of the Kenya constitution is very clear on his mandate and that mandate is not watered down by any of the electoral laws. The readers ought to be reminded that Wafula Chebukati was both IEBC Chairman and Presidential elections Returning officer, both roles are independent of each other. In the instant case, Wafula Chebukati declared the results in his capacity as Presidential elections Returning officer, not the IEBC Chairman. To hold that position, one must have been gazzeted to act in such capacity, that fact that is not in dispute and will not arise in the petition.
Secondly, I would like to remind Raila Odinga and his Azimio group that the Maina Kiai case of 2017 whereas persuasive is quoted out of context. Particularly, that case is cited as one of the most revolutionary cases in the electoral process following the guidelines set by the Court of Appeal over tallying and declaration of presidential results. In that case, Court opined that the results from the polling stations are final and can only be altered by the Supreme Court, not even the IEBC chairperson. The hard task before Raila legal team is prove that the results as collected from the polling stations were altered by Chebukati and not the decision to declare the results without the other Commissioners.
Thirdly, we are told that the results exceeded the 100% mark of the total valid votes by 0.01% Those relying on this school of thought have not told us which of the Presidential candidates unfairly benefited from the error if at all of 0.01% . Assuming that 0.01% was added to favour Ruto, would he descend down below 50+1 being the bare minimum for one to be declared President-elect. In the alternative, assuming that the 0.01 was removed from the percentage of Ruto and given to Raila, would it give him an advantage to over-run William Ruto, my answer is no and that being the case, what is the purpose of the petition if not intended to waste Court’s time, increase his chances of a hand shake and or delay the swearing ceremony.
I am not a mathematician at all but I know that the 0.01% of the total valid votes of is about 1,400 and not 140,000 as Raila Odinga and the four Commissioners wanted us to believe. Their math was wanting, misleading and obviously misconstrued as being equivalent to such a huge number of votes. The courts of law have argued in numerous cases that accuracy of the count is fundamental in any election. Assuming that it is true that the percentage exceeded the 100% mark by 0.01%, courts can correct the error or declare the same negligent more so when it does not affect the results of the election in a substantial manner.
I have not heard of any instance where results were altered from that that the presiding officers declared at the polling stations. Indeed a very high level of transparency was exhibited by the Wafula Chebukati IEBC. The court may actually consider thanking IEBC for a job well done. In the Maina case that Raila’s team has been fronting, Court was referring to Forms 34A or amending Forms 34B where the same differ with the results contained in the relevant Forms 34A.
It cannot be denied that the Chairperson of IEBC has a significant constitutional role under Sub-Article (10) of Article 138 as the authority with the ultimate mandate of making the declaration that brings to finality the presidential election process. Ofcourse before he makes that declaration his role is to accurately tally all the results exactly as received from all the returning officers country-wide, without adding, subtracting, multiplying or dividing any number contained in the two forms from the constituency tallying centre.
If any verification or confirmation is anticipated, it has to relate only to confirmation and verification that the candidate to be declared elected president has met the threshold set under Article 138(4), by receiving more than half of all the votes cast in that election; and at least twenty- five per cent of the votes cast in each of more than half of the counties.
It is evident to us from the above sequence of events that the role of the Chairperson of the IEBC is circumscribed. The IEBC, as opposed to its chairperson, upon receipt of prescribed forms containing tabulated results for election of President electronically transmitted to it from the 46,229 polling stations, is required to tally and “verify” the results received at the national tallying centre, without interfering with the figures and details of the outcome of the vote as received from the constituency tallying centre. At the very tail end of this process, in Article 138(10) the chairperson then declares the result of the presidential election, and delivers a written notification of the result to the Chief Justice and to the incumbent President. That is how circumscribed and narrow the role of the chairperson of the appellant is.
The court’s reference to the cited three forms in line with Article 138(10) is to deter the IEBC from interfering with the results as collected from the polling stations. In so doing, court concluded that the architecture of the cited electoral laws did not intend to vest or concentrate such sweeping and boundless powers in one individual, the chairperson of the IEBC. The responsibility of IEBC is to deliver a credible and acceptable election in accordance with the Constitution and must approach and execute its duty with absolute fealty, probity and integrity. The IEBC must in all its dealings be truly above suspicion and command the respect of the people of Kenya for whom it acts. Much depends on it, indeed the present and future peace of the country.
The petition will thus not have an effect on the election but may add jurisprudential value to future dealings of the electoral commission. The issue of figures derailed the declaration of results but I guess the IEBC was relying on results.
Maybe in future, we may need experts to man the electoral process. The petitions will thus be dismissed not because they lack merit but for the good of Kenyans. With all the prevailing problems, no one can expect the IEBC to correct those problems within 60 days when a re-run is by law expected. There will not be any orders on costs but with a directive to have the President-elect sworn in within 7 days.
Wadada Rogers is a commentator on political, legal and social issues. Wadroger @yahoo.ca
