Lawyer Willis Otieno on Wednesday asked the Supreme Court to recommend sanctions against the chairperson of IEBC Wafula Chebukati.
Otieno, who was representing David Kariuki, the fourth petitioner in the presidential petition, argued that Chebukati was responsible for the disputes that have arisen from the August 9 polls.
Raila Odinga and Martha Karua, who ran for president and deputy president respectively on Azimio ticket, are challenging the declaration of William Ruto as president-elect. David Kariuki has also contested the results.
IEBC chairperson Wafula Chebukati declared Ruto of UDA Party the winner of the presidential race with 7.18 million votes (50.49 per cent) against Odinga’s 6.94 million (48.85 per cent).
“There are four tiers in the result-declaration process. Tier One is the polling station, where forms 34A are processed. Tier Two is the constituency level, where the forms 34A are collated to create Form 34B, the third tier is the national tallying centre where all forms 34B are merged to Form 34C. The fourth and the final tier is the chairperson of IEBC, who announces the presidential result,” said Otieno.
According to the lawyer, all the seven IEBC commissioners ought to have been involved in the tallying and verification process, but Chebukati locked a majority of them out of the exercise.
“The [presidential] results were declared by an independent individual, and not an independent body,” he said, alluding to the fact that four IEBC commissioners disowned Ruto’s declaration as president-elect.
The four are Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyang’aya.
Otieno said there was a deliberate scheme, from the word go, to compromise the election in Ruto’s favour.
The lawyer said the KPMG audit report raised issues on some suspicious election managers.
“The report flagged some 14 non-returning officers who had been granted voter access privileges on the identity data management system. The 14 had been given the title Embakasi South clerks,” said Otieno.
The lawyer said IEBC committed to cleaning their staff members’ database in the run-up to the August 9 polls, but failed to do so.
“It was not humanly possible to remove erroneous entries. The IEBC went into an election with compromised numbers,” he said.
“If the system was compromised from the beginning, then the universe of the election was subsequently compromised. And that means whatever numbers that would come out of the election don’t matter,” he submitted.
Otieno, consequently, asked the Supreme Court judges to order investigations into the conduct of IEBC chairperson Wafula Chebukati and the two commissioners (Abdi Guliye and Boya Molu) who stuck by him during the presidential results declaration.
“The court should consider the conduct of Guliye, Molu and Chebukati. They are the only commissioners who were there in 2017 [when the August 8 presidential results were nullified]. They are the only ones dissenting today. They are the minority who are trying to countermand a decision of the commission,” he said, adding: “Appropriate sanctions need to arise [against them].
“The court was very emphatic on what the role of the IEBC is, and what the role of the chairperson of the commission is. We can’t come back to you (Supreme Court judges) every election, with the same problem, involving the same people. It’s time Chebukati must be shown that the will of the people of Kenya is supreme, and he must work within the Constitution and abide by this court’s directives.
“That’s why we are calling for criminal sanctions [against Chebukati] and appropriate reports to the Director of Public Prosecutions (DPP) [to act on].
“Why should Kenyans suffer constant anxiety around elections that are being bungled, yet the courts have sounded themselves on what he (Chebukati) is supposed to do, what technology he should deploy and how he should protect that technology? He’s clearly not doing what he’s supposed to do.
“We have attached the Public Accounts Committee (PAC) report that finds an indictment of the same person, sitting in meetings where he’s conflicted,” said Otieno.
The lawyer further said that in the lead-up to August 9 polls, Chebukati acted unilaterally and with impunity.
“Look at the KPMG report, the auditors said they were being given information they’d requested much late – on the 16th of June  for a register that was supposed to be gazetted on the 20th of June . That was a deliberate attempt to make sure that the election was compromised.”