Credibility of Ruto win divides lawyers

Constitutional lawyers were on Monday sharply divided on whether the presidential election results declared were legally processed.

There was a big split in the Independent Electoral and Boundaries Commission after four commissioners disowned the final presidential results that declared outgoing Deputy President William Ruto the winner.

Raila's Odinga's spokesperson and constitutional lawyer Makau Mutua claimed the results were null and void.

Mutua said with four commissioners having disowned the results, the commission did not have the quorum to process the final stages of the presidential results.

"Any results IEBC Kenya Chair WChebukati announces are invalid because he had no quorum of commissioners to hold a plenary and make such a weighty decision. The ongoing process at Bomas is now illegal," Mutua said. 

This was also the position taken lawyer Donald Kipkorir, who said under the IEBC Act, decisions are by the majority.

"Minority decision is void,"he said. 

However, constitutional lawyer Ahmednasir Abdullahi differed, saying the commissioners have no role in a presidential election. 

"A presidential election has a single returning officer...the chairman ... other commissioners have no role in a presidential election," Abdullahi said.

The four commissioners who disowned the results were led by the IEBC vice chairperson Juliana Cherera.

Others commissioners are Francis Wanderi, Justus Nyang’aya and Irene Masit.

The split at the commission appeared to discredit the presidential results as the commissioners claimed there was a lot that happened and that they would issue a detailed statement later.

The Constitution allows those dissatisfied with presidential elections to move to the apex court within seven days from the day of the declaration of the results.

There are indications the presidential results could be disputed and end up at the seven-judge court for legal showdown reminiscent of the 2017 battle.

Political scientists Mutahi Ngunyi, who supported Raila's bid, said in a tweet,"Next stop Supreme Court, then nullification. For then next 21 days, braise (sic) yourselves. It is not over until it is over," Ngunyi tweeted. 

There was a standoff on Monday at the Bomas of Kenya — the venue for the announcement of the presidential results — when Raila's chief agents refused to give the results a seal of approval.

Raila's chief agent Saitabao Kanchory declared the results were not verifiable, even though IEBC chairman Wafula Chebukati assured Kenyans that he would “run a verifiable election.”

“The IEBC chairman promised to run a verifiable election which he has not...A result that is not verifiable is not a result,” he said.

Kanchory said they had not seen the Form 34C, the presidential declaration form that tallies constituency results, and that he would not append his signature on the final results before tallying the results and confirming them on his own.

“We could not even ask our presidential candidate to be here even before we could verify the results which we have not,” he said.

Raila's team said, without providing evidence, that they had intelligence  that the IEBC system was penetrated and hacked.

“Some of the IEBC officials actually committed electoral offences and some of them ought to have been arrested, if they were not arrested,” he said. 

Chief Justice Martha Koome on Sunday published timeliness for presidential petition ahead of the announcement of the results on Monday, signalling preparations for a possible petition.

Should the aggrieved parties elect to challenge the win at the Supreme Court, then this would be the third consecutive presidential petition to be filed since the promulgation of the 2010 constitution.

The 2013 one was thrown out and President Uhuru Kenyatta's victory validated.

In 2017, the Supreme Court overturned the President's win over massive illegalities and irregularities.

According to Koome' s guidelines, the disgruntled parties will have seven days to file their petition at the Supreme Court.

The apex court is mandated by the Constitution to hear and determine disputes relating to the election of the president

“This is a non-negotiable time frame,” Koome said in a press statement

According to the timelines, a petitioner will have 24 hours to serve the respondent with suit papers from the time of filing his or her petition.

Upon being served with the petition, the respondent will have four days within which to respond to the issues raised and to serve the petitioner with his replying affidavit.

The petitioner will then have 24 hours to file and serve his rejoinder to the petition after which, both the petitioner and respondent will have another 24 hours to file and serve their introductory applications to the presidential petition.

The court will determine the petition within 14 days from the date of filing, in line with the constitutional requirement meant to ensure such petitions are resolved in good time.

The Supreme Court is established under Article 163 of the Constitution, and it is the apex of the Judiciary tasked with the final arbitration of disputes in Kenya.

It also has solo jurisdiction over any disputes arising out of the presidential election.

Former Chief Justice David Maraga nullified the August 8, 2017 presidential election and subsequently directed the IEBC to conduct a fresh poll in 60 days while adhering to its orders.

Maraga said the polls had not been "conducted in accordance with the constitution" and declared it "invalid, null and void."

The IEBC had declared President Kenyatta the winner by a margin of 1.4 million votes.

Nasa presidential candidate Raila Odinga, President Kenyatta's opponent, said the commission was "rotten" and demanded resignations and prosecutions.

President Kenyatta said he would respect the court's decision, even as he branded the judges "crooks."

(edited by Amol Awuor)