Lawyers differ on IEBC split and its legal implication on polls outcome

Chairman IEBC Wafula Chebukati (left) and CEO Marjan Hussein at the National Tallying Center, Bomas of Kenya on August 8, 2022. [Jonah Onyango, Standard]

On Monday, four Independent Electoral and Boundaries Commission (IEBC) disowned chairman Wafula Chebukati's declaration of William Ruto as the president-elect.

The majority commissioners' dissent now has split legal minds on its implication.

Lawyer Okweh Achiando says Chebukati's declaration should be challenged before the Supreme Court as it amounts to his own opinion rather than that of the IEBC.

He says the highest court in the land has to settle the issue as Court of Appeal judges William Ouko, Asike Makhandia, Patrick Kiage, Kathurima M'Inoti, and Agnes Murgor had in 2017 found that all seven commissioners should have a consensus before a declaration of the winner.

According to Achiando, although the Supreme Court found that IEBC could make a decision with a minimum of three commissioners in the Building Bridges Initiative (BBI) case, he says, the question is now whether the majority can influence the final call.

Mater of consensus

"I have seen what some people have written but as far as I am concerned, that issue had been decided. In the BBI matter and in the Maina Kiai case. Unless that has been changed, the matter should be taken to the Supreme Court for interpretation. In the Maina Kiai case, the court found that it has to be a consensus by all commissioners," says Achiando. Lawyer Ahmednasir Abdullahi, however, argues that the walkout by the four has no legal implication on the final declaration. According to him, Chebukati is the only one who has the authority to declare a winner in a presidential contest.

Achiando, however, said: "I disagree with Ahmednasir's argument. The BBI was about quorum and this is when other commissioners are not there. In this case, there was a full commission and the Court of Appeal said it has to be by a majority. Whatever Chebukati read was Chebukati's result and not of the IEBC. That is one of the grounds that the other parties can take to court."

Former LSK President Nelson Havi has a similar thought as that of Ahmednassir.

According to him, the issue of quorum was settled by the Supreme Court during the BBI case. At the same time, he says, only Chebukati can declare the winner.

"The returning officer for the election of president is the chairperson of the IEBC and not commissioners. Attempts to change this through amendments of the law failed. Only Wafula Chebukati can and will declare the president-elect. That declaration can only be challenged in court," he says.

Corporate responsibility

Lawyer Donald Kipkorir also disagreed with Ahmednassir. According to him, Article 138 of the Constitution and the IEBC Act make the tally and verification a corporate responsibility. He asserts that Chebukati's role is only to announce the winner after unanimity by his team.

"IEBC Act stipulates that all decisions of the commission are by unanimity or majority decision. Tallying and verifying votes is the principal work of IEBC. It can only be done in full plenary of commissioners. Four out of seven rejected the results," he said on his Twitter account.

Lawyer Waikwa Wanyoike has a different perspective on the IEBC split.

According to him, the bottom line is that the IEBC as a corporate has the responsibility to verify the results sent from the polling station.

He says from the Maina Kiai case, they cannot amend, add or reduce the votes. Instead, the discrepancies ought to be recorded and left to an Election court to determine if they are significant to affect the election.

At the same time, he says, individual commissioners have the responsibility to verify the results and recorded the discrepancies.

He asserts that there is no need for quorum on who is right or wrong, instead, it is all about whether a threshold has been met.

He says there's a likelihood that if an election petition will be filed, the Supreme Court will either order for verification, declare a winner, find there's a reason for a repeat election, or find there's no reason to annul Ruto's win.

"All that Raila Odinga needs to show is that Ruto did not have 50 per cent. If Chebukati had found discrepancies in forms 34A and 34B, he should register discrepancies and not amend them. It is for the court to make a determination whether there was significance to the result. IEBC is a corporate that has the responsibility to verify the result and it is also individual," he says.

The commissioners can record that either as corporate or as individuals which do not require voting. Even when they vote and one side losses, that does not discharge the obligation to record the discrepancy. But Chebukati has an additional responsibility as a returning to make a decision on the final result.

"Ultimately, the court will not be preoccupied with who was right or wrong but may make a determination on the future of this issue. Of course, there is need to determine the issue of a quorum but you are asking the court to invalidate an election and it will be about the threshold," said Waikwa.

LSK President Eric Theuri said the lawyers' lobby will make its position on the commissioners split if a case is filed.

According to him, the split is a live issue for the court to settle. He, however said, if there's no challenge to Chebukati's call on the basis of quorum, LSK will then consider if there should be law reform to avoid such scenarios in the future.

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