•Commission continued as a corporate entity but had serious governance issues.
•Supreme Court told to take the decision of the four commissioners as the position of the IEBC.
Lawyers for the IEBC commissioners who walked out on chairman Wafula Chebukati before the declaration of presidential results say the four should be showered with accolades for "standing up for the truth".
Led by Senior Counsel Paul Muite, they said the walkout by the four—Juliana Cherera, Justus Nyangaya, Francis Wanderi, and Irene Masit— was not an afterthought, and that they should be granted their prayers for nullification, being the position of the majority.
“They found themselves working in an environment where the executive authority presided in the chairman,” he argued.
The team further told the Supreme Court to take the decision of the four commissioners as the position of the IEBC being that they were the majority.
Apollo Mboya, who was part of the legal team for the four, said the commissions complained of being sidelined as far back as April 12, 2022.
“We request the court to find a paragraph to shower accolades on the four commissions for blowing the whistle to the infraction of our constitution,” he said.
The legal brass castigated their opponents saying they forgot to explain the particulars of the law which vest authority on the chairperson and not commissioners.
Muite and the team further argued that IEBC four explained they had protested against Chebukati as early as April and only kept a low profile to keep a positive image of the commission.
“They did not want the fights to be public for fear of eroding the public confidence in the IEBC during the electioneering,” the legal team said.
“Although they were willing to tolerate corporate governance, they were not ready to do that with serious COK violations.”
While maintaining the four were not involved in tallying, the teams said they “would only be given results to read by chairman, sometimes with embarrassing errors.”
“The commissioners were clear they had a role to play. They protested against final results before it was proved the winner met the threshold.”
Their legal representatives further argued that “all the four were asking for was information that could satisfy them that constitutional provisions have been complied with.”
“They could not stand the claim that they were out to moderate the results hence the walkout,” the lawyers added.
The lawyers said following the events, “the results that were read by the IEBC chairman were dead on arrival.”
“Since we have a self-confessed mortician in our midst, we ask that the funeral of those results be held as appropriate,” Mboya said.
Lawyer Issa Mansour, in responding to questions about whether the commission was dysfunctional, said, “The correct position is that the commission continued as a corporate entity but had serious governance issues.”
“It is when the chairman took unilateral decisions purporting them to be of the commission when they walked out,” he added.
Muite, for his part, further argued that results displayed at Bomas had stopped by the time the four commissioners walked out.
“All they wanted to know is to be given the opportunity to peruse the results of the 27 constituencies so as to certify who the winner was and whether the winner reached the 50 per cent plus one,” he said.
“When that was denied, they had no option but to refuse to be a part of the commission. Let the record show that the result was not a declaration of the commission.”