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Top court orders to open IEBC servers return to haunt Chebukati

By Kamau Muthoni | December 6th 2021

IEBC chairman Wafula Chebukati. [Boniface Okendo, Standard]

The Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati is in the eye of a storm over the bungling of the 2017 presidential elections.

As the country races towards the 2022 polls, a case has been filed in court seeking to revisit Supreme Court orders requiring IEBC to open the servers and bar Chebukati from holding office until he complies with the same.

On August 28, 2017, the Supreme Court ordered IEBC to open servers used in streaming presidential election results and allow two independent Information Technology experts who had been appointed by the court to compile a report on the authenticity of President Uhuru Kenyatta’s victory. The servers were however not opened.

The Supreme Court, by a majority, ordered for a repeat presidential poll following IEBC’s failure to open the servers.

However, activist Khelef Khalifa has opted to revisit the battle, which pitted the President and his deputy William Ruto against the defunct NASA principals Raila Odinga and Kalonzo Musyoka.

Khelef’s lawyer Willis Otieno in the case filed before the High Court has named Raila and Kalonzo as interested parties. This gives them the option of either supporting the activist or siding with Chebukati.

Khelef also wants the court to jail the IEBC boss for six months for allegedly disobeying court orders.

“In direct violation of the orders of the honourable court, Wafula Chebukati, the returning officer of the presidential elections has refused and willfully disobeyed the orders of the honourable court and denied the parties and Kenyan people access to the technology, and particularly the servers used in the presidential elections whose results were subject to petition number one of 2017 before the Supreme Court,” he argues.

This is a second case filed against Chebukati over the 2017 presidential election. The first case was filed by Samwel Clinton Elijah seeking to have the IEBC chair barred from holding office over the bungled election.

Supreme Court judges, presidential petition ruling, November 2017. [Edward Kiplimo, Standard]

In a rejoinder, Chebukati sees the case filed by Khelef as a plot to hound him out of office. He argues that there was no order issued against him in person and was not sued by Raila and Kalonzo in his capacity.

While urging the court to dismiss the case, the IEBC chair argues the High Court has no powers to settle the duel or even bar or suspend him from holding office. The only avenue available to Khelef, he says, is the National Assembly.

He also argues that the only other avenue open for the activist is to go back to the Supreme Court which issued the orders. Meanwhile, the IEBC boss asserts that the orders to open the servers were extinguished the moment the Supreme Court annulled Uhuru’s win.

He says that to the best of his knowledge IEBC obeyed the judges’ orders. Chebukati argues that the High Court cannot reopen the case.

He also questions Khelef’s three years’ silence adding that he would have walked to the IEBC and asked to be furnished with any information on the servers used during the 2017 presidential election.

“I aver that the intention is targeted towards achieving one purpose - derailing and frustrating my ability to discharge my mandate as the chairperson of the commission; taking into consideration the preparation of the forthcoming 2022 General Election,” replies Chebukati.

Khelef argues his intention is not to remove the IEBC chairman from office but to seek compliance.

Raila and Kalonzo are yet to file their replies but have appointed Lumallas, Achieng and Kavere Advocates, Oraro and Company Advocates, Awele and Company Advocates as their lawyers in the case.

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