Paul Nyamodi: Guliye, Marjan and Chebukati are not IEBC

Lawyer Paul Nyamodi making his submissions at the Supreme Court on Wednesday, August 31. [Twitter]

Lawyer Paul Nyamodi on Wednesday said three senior IEBC officers Wafula Chebukati, Marjan Hussein and Abdi Guliye presided over the August 9, 2022 presidential election in contravention of the law.

Nyamodi, who represented the Youth Advocacy Africa in the presidential petition at the Supreme Court, said IEBC is made up of seven commissioners, and not only “a few eminent individuals”.

The lawyer said it’s the duty of all the seven IEBC commissioners to tally and verify election results before a declaration is made by the chairperson.

“Chebukati said in his affidavit that his role as the national returning officer is not a shared responsibility, and not subject to plenary discussion of the commission.

“He further said that in the spirit of teamwork, he involved the other commissioners. However, tallying and verification of results, as per the Constitution, should be done by the IEBC commissioners, and not only one person,” said Nyamodi.

“In the recently released presidential election results, tallying was done by Commissioner Abdi Guliye, IEBC CEO Marjan Hussein and Chairperson Wafula Chebukati, and not the IEBC,” said Nyamodi.

The lawyer said on August 15, Chebukati “briefed” the “sidelined” commissioners of the results, and went ahead to release the outcome without factoring in the commissioners’ input.

“Did IEBC carry out verification, tallying and declaration of presidential results as per Article 138 (3) (c) and Article 138 (10) of the Constitution? I’d answer that question in the negation. Tallying was carried out by the chairman alone, or at best, the chairman, Prof. Guliye and Mr Marjan. A quick look at Section 5(1) of the IEBC Act would disclose that those three gentlemen, however eminent they are, are not the IEBC,” said Nyamodi.

Section 5(1) of the IEBC Act 2011 says: “The Commission shall consist of a chairperson and six other members appointed in accordance with Article 250(4) of the Constitution and the provisions of this Act.”

According to Nyamodi, the IEBC Act only allows the chairperson to “declare presidential results”.

“With clear provision of the Constitution in Article 138, (3) (c), there cannot be judicial foundations for the chairman’s tallying and verification on his own,” said the lawyer.

The cited Article says: “… after counting the [election] votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.”

According to Nyamodi, Chebukati “grabbed and ran the election on his own”.

“As a matter of good electoral practice, returning officers are gazetted with deputies. The chairman gazetted himself with no deputy. It was his election to run as he saw fit.”

Nyamodi indicated that the commissioners who Chebukati sidelined include Juliana Cherera (vice-chairperson), Justus Nyang’aya, Francis Wanderi and Irene Masit.

“I submit that the election is a progressive progress and the completion of one process enables another. If you do not complete voting, you cannot tally, if you cannot tally, you cannot declare. I submit that tallying and verification, having not taken place as provided by the Constitution, then, there was no result to declare.”

To illustrate how Chebukati had “developed a habit of acting alone on behalf of the commission”, he said that in March 2020, after the death of the then-Msambweni MP Suleiman Dori, the IEBC held a resultant by-election on December 15, 2020, which was way outside the 90-day timeline stipulated by the Constitution.