Nairobi — The chairman of the Independent Electoral and Boundaries Commission (IEBC) Wafula Chebukati has been described as a man who has perfected imperfection every time he presides over a presidential election.
Lawyer Njiru Ndegwa, who is representing petitioner David Ngare in the consolidated petition seeking to nullify the victory of President-Elect William Ruto, told a seven-judge bench of the Supreme Court that Chebukati had bungled the 2017 election and now the 2022 polls effectively "subverting the will of the people".
Chebukati is accused of manipulating the 2022 presidential election when he declared Ruto winner, with former Prime Minister Raila Odinga coming in second.
Odinga protested the results and filed a challenge in the Supreme Court alongside eight others, in what was consolidated into one petition. A verdict is due on Monday.
In his submissions, lawyer Njiru while representing said the conduct of Chebukati need to be interrogated given that in the 2017 polls he was accused of acting alone in the verification process, leading to the resignation of some IEBC commissioners' days to the repeat presidential poll.
"He is a person who has perfected the act of imperfection by making sure he conducts a lone ranger process. How long shall we allow one individual to keep transgressing the law, how shall we allow one individual to keep on subjecting Kenyan in an uncertainty? ,"Ndegwa posed to the judges, asking them to nullify the results used to declare Ruto winner.
Ndegwa faulted Chebukati for "blatantly refusing to declare the results in the remaining 27 constituencies" saying it was an obligatory requirement in Article 138(4) of the Constitution.
"The Chairman was lost in what he was supposed to do, he is made a declaration and reduced the question of declaration to the question of a master of ceremony," he stated.
The counsel in his defense told the Supreme Court that the 27 constituencies left out were indeed the strongholds of Azimio La Umoja One Kenya Raila Odinga which created room for mischief.
"Were they left out as a matter of design, default or was he holding someone brief. To the extent that the 27 constituencies tallied, verified and declaration were not made then the elections were not done in accordance to the constitution," Ndegwa stated.
The petitioner also is asking the Supreme Court to void the August 9th presidential election on the grounds that IEBC Chair Wafula Chebukati tallied results outside the 290 constituencies envisaged in the constitution.
Ndegwa argues that according to Article 4 and 89 of the constitution the Diaspora is not recognized as constituency within the confines of the law.
Article 89. (1) of the constitution provides that there shall be two hundred and ninety constituencies for the purposes of the election.
"We have averment that the elections took place in 291 constituencies, the fundamental question is where did this extra constituency come from and this extra constituency a constitutional constituency defined by the armpits of the constitution under article 89,"he urged
"How can an election that infiltrated by an alien constituency be regarded as a constitutional election?" he added.
The counsel argued that the constitution did not vest any powers whatsoever to any individual even the IEBC Chair to add constituencies at will.
"An individual cannot create a constituency, if it was in the interest of Kenyans while promulgating this constitution and adopting this constitution and giving this constitution unto themselves an extra constituency ,there was nothing as easy as saying as such," Ndegwa said.
Ndigwa states that even though the Kenyans in the Diaspora have a right to vote the constitution doesn't recognize them as a constituency on itself under Article 97 of the constitution.
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"To the extent that election in an extra constituency not defined in article 89 of the constitution took place, that contaminated the elections," he said.
The counsel argued that the Diaspora being regarded as a constituency was in contravention of the constitution given that Chebukati tallied the Diaspora vote when checking the 50+1 threshold attainment for the presidential elect as envisaged in Article 138(4).
Ndigwa argues the computation of the Diaspora vote count for the presidential elect in compliance of that threshold was in contravention of the Constitution and the Election Act.
"We are submitting that these elections conducted in alien constituencies contributed to the computation of 50+1 percent,"
"An election can be voided if it didn't comply with the constitution or any other written law. A constituency as defined in article 89 must be within the territory of Kenya," he argued.
