The Supreme Court judges Wednesday, August 31, raised what they termed as pertinent questions arising from the presidential election petition filed by Azimio leader Raila Odinga and others against William Ruto's election as president.
Justices Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola sought clarifications on, among others, how forms 34A were tampered with after leaving the polling stations both physically and through the electronic system.
The Azimio lawyers were asked why the four commissioners waited until the last minute to raise issues publicly rather than earlier within commission walls.
The judges also wanted to know whether the violence at Bomas had any effect on the final results.
"What role did the violence at Bomas play because we have evidence from the chair that he couldn't do this because he and Guyo were attacked and couldn't announce the results from 27 polling stations," asked Justice Lenaola.
Senior Counsel James Orengo was asked to explain the relevance of voter turnout in determining if a candidate won. Justice Wanjala wanted to how at what point the forms 34A were altered after being dispatched digitally and physically.
Orengo is also expected to clarify if the four dissenting commissioners complained about Chebukati's actions before they walked out of the National Tallying Centre at Bomas.
"Why couldn't the dissenting Commissioners protest against Chebukati on time?" posed Justice Wanjala.
Justice Ouko sought to understand the relevance of spoilt votes in computing the results.
"People wake up in the morning and go to vote for the MCA or senator but not any other position, do we have annexes on this or is just an assumption that this happens?" posed Ouko.
Justice Ndung'u sought to know if form 34A that is filled in by hand can be altered.
"Does the voter suppression as claimed by Azimio affect only the presidential election? posed Justice Ndung'u.
Justice Mwilu wanted to know when the commission became dysfunctional and measures used to try and resolve the dispute.
"What should be done as a corrective measure against the "rogue" chair of this dysfunctional commission and whether to ignore the constitutional safeguards which are already in place so far as his impeachment is concerned?" Justice Lenaola posed.
Justice Ibrahim asked if the winner can be identified by the court, should he be declared?
"If Chebukati is found culpable, what do we do, should there be a repeat elections?" posed Lenaola.
Chief Justice Koome asked if the Supreme Court makes an order against Chebukati, will it usurp powers of the subordinate courts that are supposed to deal with election offences.
Justice Lenaola said that Section 6 of the IEBC Act states that the chair must be an advocate of the High Court with the qualification similar to that of a Judge of the Supreme Court.
"If the court removes Chebukati, will the commission still be legally constituted to oversee another election?" Lenaola posed.
