IEBC lead counsel Githu Muigai on Thursday told the Supreme Court that there are indications the four breakaway commissioners were compromised to dent the presidential result declaration.
Muigai argued that commissioners Juliana Cherera (vice-chairperson), Irene Masit, Francis Wanderi and Justus Nyang’aya were influenced by external forces to ensure the presidential election came to an end prematurely.
This, he said, was resorted to after it became clear to presidential candidate Raila Odinga’s team that William Ruto was ahead in the State House race.
In his own words, Muigai said the commissioners’ decision to “bolt out at the eleventh hour was an afterthought”.
“There was a concerted effort by external forces to ensure that the [tallying and verification] process came to an end without a declaration [on who won the presidential race],” Muigai told Supreme Court judges.
“So, the sanctimonious, self-righteous, pompous, pontification of the four commissioners [was] an afterthought, and should be seen as that,” he said.
Prof Mungai argued failure to declare a presidential winner would have plunged Kenya into a constitutional crisis with a hamstrung care-taker government that was limited in what it could do.
"One shudders to contemplate what would have happened constitutionally," he said.
IEBC commissioners Cherera, Wanderi, Nyang’aya and Masit on August 15 stormed out of the national tallying centre at the Bomas of Kenya in Nairobi, saying the chairperson, Wafula Chebukati, had locked them out of the tallying and verification process, especially towards the end of the exercise.
They accused Chebukati of unilaterally processing the results in an “opaque nature”.
As a result, they said they could not “take ownership of the results that the chairperson was about to announce”.
Chebukati, thereafter, went ahead to declare William Ruto of UDA Party the president-elect with 7.18 million (50.49 per cent) of the votes compared to Azimio la Umoja candidate Raila Odinga’s 6.94 million (48.85 per cent).
The result has since triggered disputes in court, with Odinga listed as the main challenger.
On Wednesday, August 31, Supreme Court judge Isaac Lenaola questioned why the commissioners bolted out at the last minute, yet they’d earlier been seen “reading out results on national television”.
The commissioners’ lawyers are expected to respond to this question on Friday, September 2 during the rejoinder session.
Lead counsel Githu Muigai argued that Raila Odinga's legal team focused on generalities without tabling proof of electoral fraud by the commission and its chairperson.
Odinga, in his case, told the judges that the votes recorded in forms 34a were changed to favour Ruto, and that the IEBC results transmission system was hacked and the results therein altered.
The petitioner further alleged that his votes in Ruto’s perceived strongholds, especially in Bomet and Kiambu counties, were reduced and added to Ruto’s tally.
IEBC lawyer Githu Muigai differed.
"This petition is full of generalities, innuendos and hypothecation. There was no evidence [to prove electoral malpractice], and [there was] nothing of probative value. This petition lacks merit,” he said.
Muigai said Odinga’s lawyers, led by Senior Counsel James Orengo, spoke big on the allegations they had against the IEBC, yet when it came to sifting fact from fiction, they were left blank.
“The petitions make grave allegations of a criminal nature, fraud, tampering with election material and results, conspiracy to unlawfully influence an election outcome and even implied treason… all that, without a shred of evidence," said Muigai.
The IEBC lawyer said the electoral agency conducted the August 9, 2022, General Election according to the Constitution, and that Odinga had a history of rejecting elections outcome, hence the presidential petition.
“There is nothing wrong with [the] IEBC; there is nothing wrong with [Wafula] Chebukati; there is something wrong, very wrong in the way the persons who participate in the electorate process accept winning or losing, that is the problem," said Muigai.
“The vilification of this gentleman (Chebukati) goes beyond anything we have ever heard before in this court house; it was personalised, it was vindictive, it intended to lower his standing in our community and within the legal profession, it was unwarranted,” he said.
"At an appropriate time, when all this is over, I have no doubt that an independent group of people, looking at the work that Chebukati has done for our nation, will recognise him as an outstanding hero.”
The lawyer further poked holes into allegations that the August 9, 2022, General Election was flawed, saying that if that was the case, then it would mean that all elected MCAs, MPs, senators, Woman Representatives, governors and even the president-elect are illegally in office.
"As we sit here [in court] today, there are no less than three governors, no less than four senators and four MPs elected during this election. I plead with the court to ask them ‘are they happy with their own election’? If so, how then is it that this election was irredeemably flawed?
"If this election was so badly flawed, this court would have to find that every MCA, MP, senator and governor was not properly elected and the whole government should be reconstituted afresh," added Muigai.
The IEBC lawyer concluded his submission by saying that the election was not a sham, and if the courts went ahead to declare it as such, then it would have far-reaching implications.