Lawyers are divided on the implications of four members of the electoral commission’s decision to disassociate themselves from the presidential election results announced on Tuesday.
This comes as the Supreme Court hears the political battle for State House between Azimio leader Raila Odinga and United Democratic Alliance candidate William Ruto.
Some lawyers argue that the declaration of Dr Ruto as President-elect by Independent Electoral and Boundaries Commission (IEBC) chairperson Wafula Chebukati is invalid because four of the seven commissioners disagreed.
Other legal minds, on the other hand, argue that the commissioners’ concurrence is not required.
Disagreements and quorum at the IEBC are emerging as preliminary grounds for a petition to the Supreme Court, which is expected to be filed soon.
Some lawyers believe Mr Chebukati should have made the announcement in the presence of all six commissioners.
Another issue that could serve as preliminary grounds for a petition is the tallying of numbers, with some commissioners alleging that Mr Chebukati had sole access to the portal where the final tally was being conducted.
According to the Supreme Court Presidential Election Petition Rules, 2017, a petitioner must indicate the grounds on which the petition is presented, as well as the arguments supporting each of the grounds.
Lawyers have also disagreed on whether the IEBC should announce presidential election results with a quorum of four commissioners, as required by the IEBC Act, or three commissioners, as required by the Constitution.
Mr Chebukati was left with three commissioners when Dr Ruto was declared the winner, after four deserted him citing ‘opaqueness.’
“Any results IEBC chair Wafula Chebukati announces are invalid because he had no quorum of commissioners to hold a plenary and make such a weighty decision,” law professor Makau Mutua, who is also the spokesperson of the Raila Odinga 2022 presidential campaign team, tweeted.
However, constitutional lawyers Ahmednassir Abdullahi and Charles Kanjama argue that the Presidential Returning Officer does not need the authority or presence of the other commission members to declare election results.
According to Mr Abdullahi, the decision of the four commissioners to disown the results — vice chairperson Juliana Cherera, Francis Wanderi, Irene Masit, and Justus Nyang’aya — has no legal ramifications and cannot be used to invalidate Dr Ruto’s victory.
“It has zero impact because on a presidential election, the chairman is the returning officer with mandate to declare results and no role to be played by anybody else. The decision of the four commissioners is suspicious and political and could have been aimed to cause crisis and prepare a court action,” said Mr Abdullahi.
“Any court or tribunal that will take that dispute will easily see this was not a natural process but one created for political expediency,” he stated.
He also argued that because of the IEBC’s transparency during vote tallying, invalidating the 2022 presidential election results would be difficult.
Mr Kanjama, for his part, stated that while the results are valid and cannot be invalidated based on the four commissioners’ decision to disassociate themselves from the outcome, their decision raises the possibility that something is wrong with the outcome.
He stated that if a petition is filed in the Supreme Court challenging Dr. Ruto’s victory, the petitioner must show through evidence that the commission erred in its declaration.
“Were these results properly prepared or was there something wrong in the preparation? That is the kind of enquiry that the court will go into. Result is open to invalidation if evidence is shown to demonstrate they failed the requisite of free and fair election,” stated Mr Kanjama.
Another lawyer, Dr Irungu Kang’ata, who is also the governor-elect of Murang’a County, said the four commissioners’ decision has no bearing on the election results.
“There is no legal impact of that rejection. It is the chairman who announces the results of a presidential race. It is not the commission,” said Dr Kang’ata.
He believes the issue of quorum is a non-starter based on provisions of Article 138(10).
It states that “within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall declare the result of the election; and deliver a written notification of the result to the Chief Justice and the incumbent President.”
