Did IEBC Chair Wafula Chebukati swear affidavit in support of bid to push repeat poll?

Independent Electoral and Boundaries Commission chairman Wafula Chebukati. (Photo: Edward Kiplimo/Standard)

Mystery abounds as to the contents of an affidavit drafted by Independent Electoral and Boundaries Commission chairman Wafula Chebukati on the eve of the October 26 presidential poll.

The affidavit drafted for a landmark court case that sought to postpone the election caused untold anxiety among Jubilee lawyers as they sought to know its contents and whether the chairman supported the postponement.

In the affidavit matter, lawyer Peter Wanyama who held brief for Chebukati, clutched onto it as if his life depended on it. His failure to give hints led to quick manufacture of fake versions which circulated on social media purporting what Jubilee suspected - support for postponement.

Wanyama denied them.

In the end, the Supreme Court was unable to raise quorum to hear the matter which could have changed the course of history. The circumstances of the failure to obtain quorum have since been linked to the mystery affidavit and state dread for the court process.

“It was never signed,” Wanyama confessed to the Sunday Standard when we broached the matter: “I kept it in a safe somewhere. It is extremely confidential. As an advocate, I am bound by confidentiality and I can never release it.”

Wanyama, a new entrant into the privileged club of lawyers who access important briefs, was hunted down by colleagues at the time with “outsider” tag affixed on him. They couldn’t understand why the chairman went for him in an all-important matter usually a preserve of the big boys.

In the end, and despite all aspersions cast on him by lawyers apprehensive of the brief he was clutching, it is said that Wanyama eventually lend invaluable help to the process and could well be the man who saved the collapse of the elections.

When we sought to speak into details of those tense moments ahead of the Supreme Court and the role he played, Wanyama stuck to his professional oath and refused to divulge more other than to assert the same:

“I saved the country a crisis. There are more things that happened than that letter,” Wanyama said.

In the new revelations coming out, it has also emerged that Chebukati ignored the initial legal advice from official commission lawyers to include all presidential candidates in the ballots for the October 26 presidential poll.

Supreme Court

Instead, Chebukati sought alternative advice from other lawyers who advised against having the other candidates other than President Uhuru Kenyatta and former Prime Minister Raila Odinga. The chairman’s lawyers based their advice on the 2013 Supreme Court decision.

This advice was later rebuffed by the High Court and an order issued to include the six, few weeks into the October 26 repeat poll. Although all the candidates were reinstated into the ballot, their late inclusion instantaneously robbed the exercise of the all-important fairness element.

At the same time, some features of the vote transmission had to be abandoned altogether, resulting in electoral officials having to be retrained at short notice.

“The original advice received at the commission supported the inclusion of all candidates. How the advice turned the other way round is for the chairman to tell. It’s however not surprising given that at that time the chairman was mistrusting everyone and had established parallel structures,” a commission official told Sunday Standard.

In the High Court case filed by one of the candidates -- Ekuru Aukot -- both IEBC and Chebukati held their ground that in absence of guiding law on fresh elections, the commission relied on the 2013 Supreme Court decision.

They said the crux of the legal advice received was that the same was dealt with by the Supreme Court in the case of Raila Odinga and five others vs IEBC and three others following intercession of Attorney General Githu Muigai as Amicus Curiae (friend of the court)

“Acting upon the said directions, the first Respondent (IEBC) gazetted the third and fourth respondents as the only candidates in good faith, hence the alleged violation of articles 27, 38 and 140 (3) of the constitution does not arise,” the judgment reads.

The commission also argued that since Ekuru did not participate in the petition as a petitioner but as an interested party, he could not therefore contest in the fresh election as per the 2013 Supreme Court decision. Further, the lawyers argued that the Supreme Court interpretation of the 2013 matter was binding on both the IEBC and the High Court.

On his part, Chebukati, who was cited as the second respondent harped on the lack of clarity on the law and said he could not be faulted for relying “in good faith” on the Supreme Court.

But while allowing not only Aukot but all the August 8 presidential candidates into the ballot, Justice John Mativo tore into commission failure to understand that the Supreme Court was merely invited to give opinion as the issue neither arose from pleadings nor from the petitioners and respondents.

“In my view, the invitation was for the court to give directions on a line of relief “depending on finding on merits” and it was not one of the issues for determination in the dispute before the court. The directions are not part of the final orders of the court,” Mativo said.

He then went into the actual wordings of the 2013 decision and confirmed them to be mere opinion or what lawyers call Obiter dictum:

“The court used the word ‘suppose’ not less than three times while giving ‘hypothetical’ situations to explain several scenarios to support its opinion. This confirms it was a mere opinion, hence it was orbier hence not binding to this court”

Mativo also called the bluff of Chebukati’s advisors on claims that the Supreme Court interpreted Article 140 (3) of the constitution in the 2013 decision. He reminded them that the Supreme Court has no jurisdiction to interpret the constitution which is usually the preserve of the High Court.

“There is no way the Apex court in the land could have approached such a grave constitutional issue in such a manner using hypothetical situations and words such as “suppose” to illustrate their point. They were merely rendering an opinion,” Mativo further punched IEBC’s legal advice.

IEBC conceded and added the candidates in the ballot. They could not, however, compensate them for the lost campaign period. The matter is being cited as an example of the unfairness of the election by the teams preparing to challenge the outcome in the Supreme Court.

Yesterday, Chebukati did not respond to the claims that he ignored the legal advice on the matter. In the last week of the countdown to the October 26 poll, however, Chebukati publicly complained against bad legal advice he was receiving.

“As a lawyer, I cannot continue to be pushed by majority commissioners to accept legal opinions that serve partisan interests and are not grounded in the constitution or the law. In the least, this is intellectual dishonesty for which my professional training demands that I abhor,” Chebukati said.

He said he would rather bow out with his name intact and head lifted high than to be part of a process where personal interests dwarf the interest of the nation. Yesterday, one of his lawyers categorically denied that Chebukati ignored the initial advice on the presidential candidates.