Wafula Chebukati unfairly accused by petitioners, judges told

Other petitioners are George Osewe, Ruth Mumbi, Grace Kamau, David Kariuki, Okiya Omtatah, Nyakina Gisebe, Victor Okuna, John Maina, Juliah Nyokabi, Joseph Mutua and Simon Mwaura.

The former Attorney General asserted that claims brought against the commission and Chebukati were an "unfair vilification that bordered on criminal conduct because the damning affidavits against his client were not supported with an iota of evidence."

Prof Muigai went back in history and reminded the court of the ill-treatment meted on Chebukati's predecessors. He said Zacchaeus Chesoni, Samuel Kivuitu and Isaac Hassan were unceremoniously hounded from the office.

"It is made worse by the fact that the petitions make allegations of criminal nature, fraud, tampering with election materials and conspiracy ... all that without a shred of evidence. This gentleman was vilified because of doing what he was told to do in the Maina Kiai case," he submitted.

While imploring the Supreme Court to ask governors, senators, and Members of Parliament who were prosecuting the petition on behalf of Raila and Karua if they were happy with their win, Prof Muigai said that if the allegation that the election process was irredeemably flawed was true, it meant that all the other seats equally had a similar problem.

"This is a petition about facts, about what happened, when, where, and with what consequences. This petition is ultimately about numbers. The petitioners have tried to argue about everything else but not numbers. We conducted a proper, fair, constitutional, legal, impartial, election." Prof Muigai said the IEBC learned from the 2013 and 2017 elections and upped its game. He said the 2022 contest was the fairest so far. In a bid to convince the court that his clients had done a thorough job, he detailed actions taken by the commission in the last five years.

The IEBC, he said, had conducted a 2017 post-election evaluation, implemented recommendation, undertaken legal and policy reforms, reviewed its strategic plans, developed an elections operations plan, and developed a boundaries review operations plan.

IEBC lawyer Prof. Githu Muigai. [Samson Wire, Standard]

In addition, he said, the commission had continuously registered voters, procured strategic and non-strategic materials, and resolved nomination disputes.

"Unlike the previous presidential petitions, the matter before you does not turn on ambiguous electoral laws. The matter before you turns singularly on facts. It is on this basis that we shall aid this court with the facts upon which this court ought to apply the now clarified laws," he argued.

The former AG was of the view that the problem was not the IEBC but rather political players who could not accept defeat.

His assessment of the petitions was that they were "just theoretical inferences and sweeping statements".

"I conclude that this is the fairest. This was an open and fair election. Was this a perfect election? No, because there is nothing that is conducted by human beings that is perfect. This is one of the few election petitions that is full of hypotheses, innuendos, generalities, and nothing of probative value. There is nothing wrong with IEBC; there is nothing wrong with Chebukati," he said.

Prof Muigai was defending IEBC and Chebukati during the second day of hearings by Supreme Court judges Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), and justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko.

The former AG said that Chebukati was all along "acting as the commission" and therefore his declaration did not require consensus or voting by the other commissioners. According to him, the Constitution envisions commissions as "multiples in one image". He observed, for example, that if a procurement officer makes a purchase, it is deemed to be an act of the commission. The petitioners have accused Chebukati of acting alone. The four commissioners who disowned the results- Juliana Cherera, Justus Nyang'aya, Francis Wanderi and Irene Massit- disowned the chairman's verdict, claiming that he tallied, verified, and declared the results in an 'opaque' process.

But Prof Muigai said the commissioners were together until the last minute when other persons disrupted the exercise. He said that although the divide between the IEBC commissioners was out in the public, the presidential election was conducted in strict compliance with the Constitution and Election Act.