Nairobi — The Supreme Court has struck out the appointment of lawyers retained by IEBC Deputy Chairperson Juliana Cherera and her three colleagues who differed with their Chairman Wafula Chebukati during tallying of presidential results.
The court on Tuesday ruled that it will only recognize lawyers retained by Chebukati for the commission.
In a ruling delivered by Deputy Chief Justice Philomena Mwilu, the seven-judge bench said that the commission will be represented by Senior Counsel Githu Muigai, Eric Gumbo and Kamau Karori.
In her initial affidavit to the petition, Cherera said they met on Friday and resolved to file responses on behalf of IEBC. The four commissioners hired Issa & Company Advocates to file a fresh set of documents to respond to the petitions on behalf of the commission.
“We have considered this argument and we allow the application dated 29th August 2022 to say that the notice of appointment of Issa and company advocate is struck out,” Mwilu stated.
IEBC Secretariat had filed an interlocutory application seeking to strike out the notice of appointment of lawyers retained by the four dissenting commissioners purporting to represent the poll agency.
The commission CEO Marjan Hussein had also filed an affidavit seeking direction on the legal presentation matter.
The judges, however, declined to wade into the controversy between the electoral commission Chairman and four of the commissioners, describing their individual legal representation an “internal matter” .
This is after Chebukati retained lawyers from the commission to represent him while his deputy Juliana Cherera and three others sought representation from external lawyers due to a fallout arising from the tallying of the presidential results in the August 9 presidential election.
“The four commissioners are at liberty to deploy and utilize the services of Senior Counsel Paul Muite and Issa Mansour if they deem it necessary,” Deputy Chief Justice Philomena Mwilu said in a ruling by the seven judges.
And they went on to say that ” the court cannot deal with the issue or any dispute on the legal representation of IEBC as an institution in this petition. It’s not the business of the court to determine who represents IEBC in whatever form,” it ruled, adding “this is an internal issue that will be resolved by the IEBC, its commissioners and other internal organs.”
Cherera and the three commissioners have already filed affidavits in support of a petition filed by one of the presidential candidates Raila Odinga of Azimio who accuses the commission and Chebukati of manipulating the poll results to favour Deputy President William Ruto.
But according to an affidavit filed by Chebukati and his set of commissioners and the commission itself, the presidential election was above board including tallying and verification of the votes relied on in declaring Ruto the winner.
Cherera and her three colleagues dispute this, claiming that the “whole process of tallying and verification was done in an opaque manner.”
Cherera retained Law Society of Kenya Chief Executive Officer Apollo Mboya, as Justus Nyang’aya retained Rachier & Amollo Advocates, Francis Wanderi opted for J. M. Njenga & Company Advocates while Irene Masit went for O. Ouma J. & Associates.
In her initial affidavit to the petition, Cherera said they met on Friday and resolved to file responses on behalf of IEBC. The four commissioners hired Issa & Company Advocates to file a fresh set of documents to respond to the petitions on behalf of the commission.
The Supreme Court has already identified nine issues to determine the outcome of petitions challenging the result of the August 9 presidential election, including whether any irregularities were substantial enough to nullify the poll.
Ruto was declared the winner of the closely-contested race, scraping to victory by less than two percentage points against Raila Odinga, a 77-year-old veteran opposition figure now backed by the ruling party.
Odinga — who lost his fifth bid for the presidency — rejected the outcome and filed a petition at the top court alleging fraud in the vote tallying process.
On Tuesday, the court said it will attempt to answer nine questions during the case, including whether the election commission website was hacked and if there was any interference with the transmission of result forms.
The seven judges will also ascertain if the election technology — a hot-button issue that led to the nullification of the August 2017 presidential vote following a challenge by Odinga — met the “standards of integrity, verifiability, security and transparency”.
After assessing the transparency of the poll, the court will finally rule on whether Ruto met the constitutional threshold of 50 percent plus 1 of the valid votes cast.
– ‘Final arbiter’ –
Since 2002, no presidential election in Kenya has gone uncontested, with this year’s outcome also causing a rift within the Independent Electoral and Boundaries Commission (IEBC) which oversaw the poll.
Nine petitions were filed to challenge the outcome, but two were rejected on Monday.
Chief Justice Martha Koome said Tuesday the seven other cases will be collapsed into a single case because they cover the same issues.
Both Odinga and Ruto — who has been named as a defendant in the case filed by the former prime minister — have assembled huge legal teams.
Hearings will begin Wednesday with a decision expected on September 5.
The Supreme Court is the highest in the land, created under Kenya’s 2010 constitution “as the final arbiter and interpreter of the constitution”.
Its rulings are final and binding. If judges order an annulment, a new vote must be held within 60 days.
But if the court upholds the results, Ruto will become Kenya’s fifth president since independence from Britain in 1963, taking the reins of a country battling inflation, high unemployment and a crippling drought.
The IEBC was under heavy pressure to deliver a clean vote after facing sharp criticism over its handling of the August 2017 election.
The court annulled that election in a first for Africa and ordered a re-run which was boycotted by Odinga. Dozens of people died during a police crackdown on protests.
Kenya’s worst electoral violence occurred after the 2007 vote, when more than 1,100 people died in politically motivated clashes involving rival tribes.
The court’s announcement of the issues that it will examine is a common procedure in Kenya, known as a “pre-trial conference.”