Tough questions Ruto & IEBC lawyers must answer for Supreme Court to uphold his election

It featured lawyers representing President-elect William Ruto, IEBC Chair Wafula Chebukati, the IEBC and its commissioners as well as Attorney General Paul Kihara Kariuki.

However, the Supreme Court judges put the lawyers to the task to expound their submissions and clarify issues before the judges.

Kenya's Supreme Court judges (L-R) Isaac Lenaola, Smokin Wanjala, DCJ Philomena Mwilu, CJ Martha Koome, Mohamed Ibrahim, Njoki Ndung'u and William Ouko during day one of hearing the consolidated presidential election petition on August 31, 2022 [Photo: Zakheem Rajan] Pulse Live Kenya

Justice William Ouko

Justice Ouko’s first question was aimed at IEBC lawyer, Mahat Somane, who had said that the difference in the number of votes cast for the presidential candidates differed from those of other positions, and this was due to stray ballots.

There was an allegation that 33,000 vote differential was noticed,” the judge said, asking how many constituted stray ballots, how stray ballots were distributed in counties and whether there are instances where voters walked into the polling stations and voted for the presidents only.

He also asked Senior Counsel Kamau Karori who represented the IEBC whether Chebukati gazetted himself as the National Returning Officer in his capacity as IEBC chair or an agent of the commission.

Justice Ojwang also asked whether there had been any resolutions arrived at by the commission before the gazettement.

He also said the IEBC should explain why the public display of provisional results at Bomas of Kenya was terminated.

Justice Isaac Lenaola

On his part, Justice Isaac Lenaola asked why Chebukati did not utilize the extra day to announce results for 27 pending constituencies and reach out to his 4 other commissioners to resolve the dispute.

Did he ask Mahat Somane to explain at what point the JPEG images of Forms 34A captured by KIEMS kits were converted to PDF.

Lady Justice Njoki Sussana Ndung'u of Kenya's Supreme Court Pulse Live Kenya

Justice Njoki Ndung’u

Justice Njoki Ndung’u asked Professor Githu Mugai to explain instances where the term “commission” can be used in multiple senses.

She also noted that the submissions by IEBC lawyers on the role of the chairperson pointed to an all-powerful figure without any checks and balances.

She asked the lawyers to answer what would happen if the IEBC chair announced the wrong results, was mentally incapacitated, sick or dead and what the roles of his commissioners are in the management of the election.

Justice Smokin Wanjala

Justice Smokin Wanjala also asked for more clarification on the role of the IEBC commissioners concerning the presidential election.

He asked Mahat what the said Venezuelan national was doing on the IEBC server and what exactly he was maintaining.

The judge also asked the IEBC chair to prove that the National Security Advisory Council wanted to alter the results of the presidential election because that would mean the council already knew the outcome.

Judge Smokin Wanjala of Kenya's Supreme Court Pulse Live Kenya

Justice Wanjala also asked whether President-elect William Ruto’s team was willing to have their opponent declared the winner instead of a nullification, in reference to a Bible story where two women were fighting over a baby.

He also sought to know why Chebukati omitted results from 27 constituencies while declaring the winner of the presidential election.

Justice Mohammed Ibrahim

Justice Mohammed Ibrahim sought to know why the Supreme Court should place blame on the petitioner because of the actions of his agents and supporters when the said matter is not before them.

“We saw a commotion at the Bomas of Kenya on TV, would you still expect the court to apportion blame or take action when the matter is not before us?” he questioned.

Justice Martha Koome

Chief Justice Martha Koome asked why the IEBC chair didn’t tell Kenyans exactly what happened at Bomas of Kenya.

She also asked the IEBC why the live streaming of the results at Bomas of Kenya stopped and how the Forms 34A attached to the affidavits of the respondents were photoshopped.

Justice Philomena Mwilu

Justice Philomena Mwilu asked Chebukati’s lawyer to explain the constitutional role of the six IEBC commissioners and compare it with the role of the IEBC secretariat

“Comment on the walking away of the four IEBC commissioners almost at the same time the chair (Wafula Chebukati) was about to declare the results. Does their walking away mean anything under Article 140?” she told Githu Muigai.