Questions Supreme Court Judges want petitioners to answer

Chief Justice Martha Koome (R) and her deputy Philomena Mwilu at Milimani court. [Collins Kweyu, Standard]

The official hearing of the presidential election petition kicked off on Wednesday, a day after the pre-trial conference.

The first day saw the seven petitioners present their case before the seven-judge bench.

After presenting their arguments, the judges had the following questions for the petitioners.

Chief Justice Martha Koome

• You have asked us to find the chair culpable of various breaches and that if there is a repeat election he shouldn't do it. This is a constitutional office holder and there is a detailed procedure for removing a constitutional office holder. Address us on how to go about it. Will we be making an order that is against the constitution?

• Will we not be usurping the powers of the magistrates if we have to make any order regarding the election offences?
• I want to understand at what point the commission ceased to function as a corporate entity. Is it when the 27 constituencies were not announced? We really want to know when the commission became dysfunctional
• how do you know that IEBC did not make arrangements for a certain category of voters to vote for example the IEBC staff?

Deputy Chief Justice Philomena Mwilu

• When did this commission become this dysfunctional? What was the effect of this function becoming dysfunctional and what corrective measures were attempted, if any, and with what result?
• Maina Kiai told us the election is done at the polling station and not at the tallying centre and the return of that form is done electronically. At the time the image is taken and sent, is it in pdf form? The journey from the polling station to Bomas and the things that happen in between must be described by that form.
• What is to be done as corrective measure against the chair of this dysfunctional commission and is it to ignore the constitutional procedure and safeguards that are already in place?
• What I have heard is that because of the dysfunctionality of the commission and other things is that nearly everything that could possibly go wrong went wrong. If every process is so far being impuned, are we nevertheless to declare the winner?

Justice William Ouko

• What is the relevance of rejected votes when computing the results of the outcome of the election?
• Do you have any scientific nexus that people wake up to vote for a particular candidate vying for a particular seat and therefore postponement of some elections suppressed turnout or it is just an assumption?
• What are some of the elements that must be satisfied before the court can grant the relief under section 8 subsection 4?

Justice Isaac Lenaola

• You addressed us on the PDF formats but in the pleadings there is the JPEG question. Clarify the connection.
• In the context of staging and tampering and so on of forms 34A. Give us an explanation of how the interference happened.
• Commissioners were together until the 11^th hour. What evidence do we have this was not an afterthought and that they are not doing this in good faith?
• What role did violence play at Bomas because we have the evidence of the chairman and a commissioner saying they could not do this or that because of violence?
• You have asked us to declare regulation 87(3) unconstitutional. Please address that issue in the context of retroactivity and retrospectivity.
• You made an innovative submission regarding the diaspora vote and the number of constituencies. Please go back to article 89 (1). We are addressing a vote on presidential election. Please connect 89(1) with the presidential election.
• If we were to order the removal of Chebukati, will the commission still be intact without a chairman?

Lady Justice Njoki ndungu

• Every citizen has a right to participate in an election. How then do you reconcile that with your argument on article 89 because constituencies don't vote; citizens do
• Explain how a form can be changed in handwriting. How does that happen?
• When a voter goes to vote they get six ballots for six ballot boxes. What we have is six elections but on different days. Is the voter repression only to the presidential election or it is an argument that can be used by an MCA candidate in Kakamega county?

Justice Smokin wanjala

• What is the relevance of the percentage of voter turnout to determining whether a candidate marshalled 50% plus 1 marginal number?
• We have filled forms 34A. the original leaves the polling station to go to the National tally centre by road. Its image leaves to the same destination by air. Somewhere in mid-air, all sorts of things are done before the image is uploaded. Is it possible that capturing mid-air also changes the contents of that which is left by the road?
• We were told the four commissioners were appointed roles which were different from those they were appointed for as commissioners. Why didn't they protest? Is this chairperson we are dealing with such a terror that nobody can face him?

Justice Mohamed Ibrahim

• After inquiry, you would like that there should be the nullification of results, recount and tally and chair redirected to declare petitions as the winners. We would like you to lay a legal basis for this. Is this feasible?
• If a fresh election is to be ordered to be done now, yet one of the reliefs is that we find the chair unfit to hold public office, how is that possible since the constitution does not contemplate such a lacuna?