Full verdict: Put your house in order, Supreme Court directs IEBC

Supreme Court Judges during the hearing of the presidential petition at the supreme court on September 2, 2022. [David Gichuru, Standard]

The Supreme Court has directed Independent Electoral and Boundaries Commission (IEBC) to develop institutionalised guidelines that separate its administrative and policy functions.

The apex court, during its full judgement delivered by email Monday, recommended a review of the commission’s guidelines that clearly spells out the policy, strategy, and oversight responsibility of the Chairperson and the Commissioners.

“The IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy, and oversight responsibility of the Chairperson and the Commissioners; and develop institutionalised guidelines on how to manage the separation of administrative and policy domains,” read the judgement in part.

The court directed the roles of the commission’s chairperson, commissioners, and the Chief Executive Officer, other staff and third parties should be clearly set out in both the legislative and administrative edicts.

It further called on Parliament to consider enhancing the statutory and regulatory framework on the separate policy and administrative remit of IEBC

On election technology, the court directed IEBC to restrict servers supporting the transmission and storage of Forms 34A, 34B and 34C to IEBC staff during the election period.

“This would then allow the Court, should the need arises, carry out forensic imaging of the same without compromising and/or infringing any third-party agreements,” the court ruled.

On September 5, the seven Supreme Court judges, in a summarised verdict, upheld the election of William Ruto  as Kenya's fifth president.

Justices Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko unanimously ruled that Ruto was validly elected as president during the August 9, 2022 presidential election.

The United Democratic Alliance (UDA) candidate, Ruto, as per the IEBC, got 7.18 million votes (50.49 per cent) to be declared the winner of the August 9 polls.

Raila Odinga, who ran on the Azimio la Umoja-One Kenya Coalition Party ticket, got 6.94 million (48.85 per cent) of the votes to emerge second in the contest.

The Supreme Court’s decision paved the way for Dr Ruto’s swearing-in on September 13, 2022, which was the first Tuesday after the court delivered its verdict following a presidential petition.

Raila Odinga, who was Ruto’s main challenger in the polls, led a consolidated petition that sought to overturn Ruto’s victory, alleging electoral malpractice by the Independent Electoral and Boundaries Commission (IEBC).

Odinga, who was the lead face in the seven accepted petitions, argued that the technology used in transmitting presidential results was infiltrated by people who intercepted forms 34A and changed results in Ruto’s favour.

On this claim, the Supreme Court judges found that the technology deployed by the IEBC was transparent, saying the petitioners did not produce evidence to suggest any wrongdoing.

Cementing his argument in court that the polls were unfair, Odinga said four IEBC commissioners broke away from the team that announced results on August 15, led by chairperson Wafula Chebukati.

The breakaway commissioners were Juliana Cherera (Vice-chairperson), Justus Nyang’aya, Irene Masit and Francis Wanderi.

In their response, IEBC said the commissioners only took off at the last minute after being compromised, saying the four had been televised reading presidential results from the constituencies in turns.

Commissioner Abdi Guliye, who stuck by Chebukati, said in his affidavit that Cabinet Secretary (CS) Raphael Tuju and former Attorney-General Amos Wako attempted to entice the commissioners with goodies to “massage” the presidential results in favour of Raila Odinga.

Guliye said he, Chebukati and Commissioner Boya Molu rejected the proposed gifts, while Cherera, Wanderi, Masit and Nyang’aya entertained the thought.

At the centre of the election dispute, were nine key issues including the role of the commissioners in verifying and tallying the results.

The petitioner asked the court to overturn Ruto’s win, saying the technology deployed by the IEBC did not meet the standards of integrity, verifiability, security and transparency, an argument quashed by the judges.

In the consolidated petition, the challengers of the election results also argued that there was interference with the uploading and transmission of forms 34 from the polling stations to the IEBC’s portal. The judges said the petitioners did not raise any evidence to support this allegation.

The court was also put to task to rule on whether forms 34A on the public portal had different results from those physically taken to the national tallying centre at the Bomas of Kenya. Chief Justice Martha Koome said there was no evidence produced in court to prove this claim.

The seven Supreme Court judges also made their ruling on whether the IEBC’s decision to postpone elections in Kakamega, Mombasa and six other areas suppressed voter turn-out. The judges found that there was no evidence to show that this move disenfranchised Raila Odinga only.

Odinga’s team also sought a ruling on whether the votes cast for president exceeded those polled for other elective seats. The judges said the variances in these two sets of votes were within allowable margins as argued by the IEBC in court.

Odinga had also questioned whether Ruto indeed got the constitutional threshold of 50 per cent plus-one vote to be lawfully declared the winner. The judges agreed with the IEBC that Ruto indeed secured enough votes to be declared the presidential race winner.

“We find that the petitioners did not provide watertight evidence to warrant the setting aside of the results announced by the IEBC,” said CJ Koome.

“The declared-president elect attained 50 per cent-plus one of all the votes cast in accordance with Article 138 (4) of the Constitution,” she added.

The judges were also put to task to establish whether the divisions among the IEBC commissioners affected the conduct of the August 9, 2022 presidential election. On this, the judges ruled that the IEBC conducted the election in compliance with the Constitution.

In their judgement, read out by Chief Justice Martha Koome, the judges said: “The power to verify and tally results vests in the Commission, and not the chairperson of the IEBC. The chairperson cannot allocate himself or herself sole powers to verify and tally the results. We, however, take cognisance of the fact that the four commissioners actively participated in the verification and the tallying exercise from the beginning up to nearly the end of the result declaration.

“The events of August 15, 2022 [in which four commissioners broke away from the commission], came as a surprise.”

The judges also said the four disgruntled commissioners did not produce evidence to suggest that the results in their possession differed from those announced by the Chairperson of the IEBC Wafula Chebukati.

The CJ Martha Koome-led bench concluded that the malpractices and irregularities highlighted by the petitioners were “not of such magnitude to warrant nullification of the presidential election”.

On the issues raised, that formed the foundation of the petition, the judges observed that there were no major discrepancies and variances to warrant a nullification of the August 15 presidential results.