Silvanus Osoro, MP for Mugirango South, and three voters have petitioned the court for an interpretation of the law granting the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati the authority to declare presidential election results.
The petitioners are also challenging the Supreme Court’s powers to declare a winner in a Presidential election after a recount and retally of votes in two separate suits filed at the High Court Constitutional & Human Rights Division in Milimani, Nairobi.
They want the Supreme Court to declare a presidential election winner in a disputed election if arithmetic errors are discovered, nullified, and declared unconstitutional under Section 80(4) of the Elections Act.
The aforementioned section of the law, titled powers of election court, empowers the Supreme Court to declare the presidential election winner and direct the electoral commission to issue a certificate of election to a candidate following a recount of ballot papers cast.
According to the law; “an election court may by order direct the Commission to issue a certificate of election to a President, a Member of Parliament or a member of a county assembly if upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence.”
According to Mr. Osoro, an ally of President-elect William Ruto, the statutory provision is unconstitutional, null and void because it expressly violates Article 138(10) of the Constitution and violates the IEBC’s independence.
According to Article 138(10) of the Constitution, the chairperson of the IEBC must declare the result of the presidential election and deliver a written notification of the result to the Chief Justice and the incumbent President within seven days of the election.
“It is against this backdrop that I contend that Parliament overstepped its mandate in clothing the Supreme Court (election court in presidential election dispute) with the power to direct IEBC to issue a particular candidate with the certificate of election,” says Mr Osoro.
He claims that the election of county governor is not one of the offices for which an election court can order the IEBC to issue a certificate of election after a recount and retallying of votes.
“In essence, the presidential election results being hotly contested and of a higher political voltage than the other elective positions, the Supreme Court should be extremely cautious in assuming jurisdiction under Section 80(4) of the Elections Act,” says the MP.
According to him, there is a real risk of constitutional rights being violated if the losing candidate in a presidential election petitions the Supreme Court to be declared the president-elect by citing the relevant section of the law.
“The Supreme Court sitting as an election court in presidential election dispute can only hold that the elections results are valid or invalid and no more. The framers of the Constitution did not intend that Parliament would legislate on disputes relating to presidential elections,” says Mr Osoro.
He requests that the Supreme Court declare Section 80(4) of the Elections Act unconstitutional “to the extent that it gives the Supreme Court the power to declare a winner in the presidential election.”
In a similar petition, voters Ashford Koome Mbogo, Michael Ochieng Asola, and Eric Githinji want the law repealed and a declaration that only the IEBC chairperson can declare a presidential candidate as having been validly elected president.
They also want a declaration that the IEBC’s Certificate of Election issued to Dr Ruto is legally valid unless and until it is overturned by the Supreme Court.
The two petitions came a day after Raila Odinga, the leader of the Azimio la Umoja party, and his running mate, Martha Karua, filed a presidential election petition at the Supreme Court, requesting a recount and retally of the votes, as well as a declaration that they had won the election.
Mr Odinga and Ms Karua are requesting 23 reliefs, including an order to inspect IEBC servers and a review of the rejected and spoiled votes.
They also want an order for a forensic audit of the Kiems kits, the IEBC website and portal, and the presidential election returns, including Forms 34A, 34B, and 34C.
Eight other petitions were also filed at the Supreme Court by different individuals and members of civil society, with one of the orders sought being a vote recount and retally.
