Petition D-Day: Both Raila and Ruto exude confidence

Some of the questions were whether JPEG files could be converted to PDF, whether the IEBC split affected the declaration of the result, and what the role of election commissioners is.

The judges also wanted to know if Chebukati has absolute power.

Prof Githu Muigai, speaking on behalf of Chebukati, argued that his client has the powers of an executive chairman when compared to the other commissions.

In her argument on behalf of John Njoroge, senior lawyer Zehrabanu Janmohamed told the court that Chebukati's behaviour portrayed the commissioners as flower girls and page boys. "From what I can tell, these six commissioners are supposed to be flower girls and page boys at a wedding, with the chairman as the bride or bridegroom, depending on the situation.


"That was certainly not the intention of the constitution," Janmohamed contended. The presidential election petition hearings concluded on Friday. Just like in the presidential election, both lawyers representing Raila and Dr Ruto were confident of a favourable verdict.

Raila had six petitioners on his side, while Dr Ruto had the IEBC on his side. On the final day of the hearings, lawyers competed to outdo one another.

Raila and Karua's lawyer, Julie Soweto, attempted to demonstrate how rigging occurred by displaying evidence from the commission's portal. "Our evidence as demonstrated before this court that there was staging where forms were intercepted, changed, and then re-uploaded. The evidence shows fingerprints of foreigners who determined the presidential election," said Soweto.

She clicked on one Form 34A, which had the name of Venezuelan Jose Camargo, one of the three men who had earlier been arrested at the Jomo Kenyatta International Airport, where they were found with Kiems stickers. Soweto also brought to the court's attention that forms from Bungoma and Nyeri had the same serial number. This came after Justice Isaac Lenaola asked the parties to provide a context for the staging and tampering with Forms 34A, as well as an explanation for how the interference occurred.

In its response, the commission, through lawyer Mahat Somane, maintained that there were no foreigners and that the form displayed on their portal was not the original, which includes security features.

The judges had sought to know whether Chebukati could act alone in the verification of presidential results since all of the petitions are challenging Dr Ruto's declaration as president-elect, but the parties could not agree. The judges also inquired whether the commission would cease operations if the chairman became ill, resigned, or died during a presidential election.


In its response, the IEBC stated that only the chairman has the authority to declare the results of the presidential election and that Chebukati was justified in declaring the results in the absence of four commissioners who disowned the results.

However, Raila's lawyer, Paul Mwangi, argued that the chairman violated the constitution and pretended to be ignorant because of an unconstitutional gazette notice granting him the power to control the commission as personal property.

Lawyer Janmohamed argued that the commission should work as a team, but the chairman turned into a biased referee.

"The constitution talks about the commission, not commissioners or the chairperson. He cannot be more equal than the others," she said.

The judges had also asked when exactly the IEBC became dysfunctional to a point where vice-chairperson Juliana Cherera, commissioners Justus Nyangaya, Irene Masiit and Francis Wanderi walked out and disowned the presidential results Chebukati was about to announce.

Although the commission denied the existence of a split, the four commissioners, through their lawyers Jotham Arwa, Apollo Mboya, and Issa Mansur, explained that the schism began in April when they discovered certain irregularities in preparation for the election.

"The commissioners began protesting as early as April when they realised there was a problem, but they were afraid to make their protests public because they knew it would erode public trust in the commission," Arwa explained.

The lawyers said the four commissioners were not involved in the tallying process at Bomas of Kenya and were only given results to read, some of which were incorrect, and that at the end of the process, they decided to walk out because the irregularities they had identified were not addressed.

One issue on which the judges and lawyers couldn't agree was the correct voter turnout and its significance in determining whether a candidate received 50 per cent plus one vote to be declared president in round one.

Somane of the IEBC argued that the turnout was 64.6 per cent, as recorded in the Kiems kits, and that the commission does not use turnout to calculate the percentage in presidential elections.

Reversed figures

However, Busia senator Okiya Omtatah argued that the commission reversed the figures after Chebukati publicly declared that the turnout was 65.4 per cent and that the figure was expected to rise once the voters identified manually were factored in.

Senior counsel Otiende Amollo for Raila and Karua said the voter turnout was being manipulated to achieve a certain figure and declare Ruto as president-elect.

"The question of voter turnout became a moving target where the chairman and the director of voter registration gave conflicting figures. The constitution is clear that the denominator of calculating the percentage is the total number of registered voters," Amollo said.

On the question of why the commission announced the results without publicly announcing results from 27 constituencies, IEBC said the chaos at Bomas prevented them while the other parties said there was no hurry since the electoral body had an additional day.

"We have adequately explained the circumstances under which the chairman declared results without those of the 27 constituencies. He had made considerations of his staff who were facing arrests and intimidation and decided not to wait another day," said lawyer George Murugu.

The judges had also asked what will happen if they nullify the election and the chairman is found unsuitable to conduct the presidential election.

Whereas lawyer Fred Ngatia representing Dr Ruto and Prof Githu Muigai for IEBC stated that there would be a constitutional crisis if that were to happen, the other petitioners claimed that there will be no vacuum since the constitution has provided a mechanism to address such issues.

"There is no lacuna in the law if you nullify the presidential election. The IEBC chairman is not immortal, even if he resigns today the country and the commission will move on and fresh elections will be held within 60 days," said lawyer Willis Otieno.