Judges strip Chebukati of powers but decline to remove him from office

IEBC Chairman Wafula Chebukati addressing the media on September 5, 2022. [ Jenipher Wachie, Standard]

The Independent Electoral and Boundaries Commission (IEBC) chairperson has been stripped of the powers to verify, tally and declare the presidential results.

Supreme Court president Martha Koome, her deputy Philomena Mwilu, judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko ruled that the mandate is for all the seven IEBC commissioners and not a single person.

This was among the recommendations issued by the Supreme Court in their reasons for dismissing seven petitions that challenged the presidential election of William Ruto and his deputy Rigathi Gachagua.

"The chairperson does not have executive, special or extraordinary powers with regard to the tallying or verification of results. The mandate of tallying and verification of votes is vested in the Commission, the chairperson cannot exclude any commissioners," ruled the judges.

As a consequence of their finding, the judges declared Regulation 87(3) of the Elections (General) Regulations, 2012 as unconstitutional for vesting power of verifying and tallying presidential election results in the chairperson to the exclusion of other members of the commission.

The judges, however, ruled that the chairperson has exclusive mandate to declare the presidential results and that the division between Wafula Chebukati and four commissioners, Juliana Cherera, Irene Masit, Francis Wanderi and Justus Nyangaya, did not affect the presidential election results.

The judges ruled that it was clear that there are legal, policy and institutional reforms that are urgently required to address the glaring shortcomings within IEBC based on the discovered institutional dysfunctionality undermining its proper functioning.

They recommended to Parliament to enhance the statutory and regulatory framework on the separate policy and administrative functions of the commission.

"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," they ruled.

The judges added that the roles of the chairperson, commissioners, and the chief executive officer, other staff and third parties should be clearly set out in both the legislative and administrative dockets to avert any future crisis.

On election technology, the judges recommended that the commission should restrict access to the servers supporting the transmission and storage of Forms 34A, 34B and 34C to its staff only to avoid suspicion from other stakeholders.

According to the apex court, the commission should ensure the servers supporting the elections and those serving their internal administrative work are distinct and separate, which would then allow forensic audit when required without compromising third-party agreements.

They also recommended to IEBC to consider simplifying and restructuring Form 34A and include a column that accounts for stray ballots.

"In addition, IEBC may consider having only one section for total valid votes. They may also find it prudent to thoroughly train its Returning Officers as to what constitutes valid votes per this court's decision," said the judges.

Special voting

To cater for voters who may not be able to participate on the day of the General Election, the judges said the commission ought to put in place specific mechanisms to allow for special voting as contemplated under Regulation 90 of the Elections (General) Regulations 2012.

The judges also spared Chebukati of any criminal responsibility for the disputed presidential election and declined to declare him unfit to hold public office as prayed by Raila Odinga and Martha Karua in their petition that challenged the presidential election.

According to the judges, election offences and ethical breaches enumerated against Chebukati are criminal in nature, which should have been proved beyond reasonable doubt. Section 87 of the Elections Act stipulates how a court may report on electoral malpractices.

"Once an election offence has been alleged, the evidence in support must be specific, satisfactory, definitive, cogent and certain. It is only when the election court is satisfied that the burden and standard of proof have been satisfied that it can proceed to take action," ruled the judges.

They ruled that the allegations against Chebukati did not meet the threshold to warrant his removal from office.

In any event, the judges ruled that they cannot remove the chairperson of IEBC from office or declare him unfit to hold public office since the process of removal of members of constitutional commissions is spelt out under Article 251 of the Constitution.