The pending verdict by the Supreme Court on the presidential election petitions portends far-reaching ramifications that could crash careers and possibly thrust the country into a constitutional dilemma.
Yesterday, the seven judges of the apex court retreated to consider the petitions that have ‘paradoxical prayers’, including asking that President-elect William Ruto’s win be nullified, order for a repeat poll and at the same time declare the Independent Electoral and Boundaries Commission (IEBC) incapable of conducting a credible repeat poll.
The petitions by Azimio la Umoja-One Kenya Coalition presidential candidate Raila Odinga and his running mate Martha Karua and others also want the judges to declare IEBC chairman Wafula Chebukati unfit to hold public office.
The decision by the apex court puts on the line the career of Mr Chebukati as well as the political future of Dr Ruto and Mr Odinga.
The constitution provides that a repeat election has to be conducted within 60 days in the event of a nullification.
Disbanding the current commission and placing a new team in office would also require more time thereby going beyond the stipulated timeline for a fresh presidential election.
The constitution stipulates that such office holder can only be removed through a petition to Parliament and subsequent establishment of a tribunal by the president.
All these in the face of an arm-strung President Uhuru Kenyatta , who cannot make appointments of public officers, including commissioners of the poll body.
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Article 134 of the constitution states that temporary incumbency begins “during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office.”
Constitutional lawyer Bobby Mkangi says that even if the Supreme Court nullifies the election, President Uhuru will not regain his powers to make appointments.
“He remains in that state until a new president is sworn-in. A nullification does not give him back his powers,” says Mr Mkangi.
The outcome of the petitions also threatens to split the electoral commission further making it near-impossible for the seven-member team to organise another poll without major public spat.
Mr Chebukati, commissioners Boya Molu and Abdi Yakub Guliye defended the results.
In its consideration, the apex court can uphold the win by Dr Ruto in the absence of compelling evidence that the outcome was marred with illegalities and irregularities.
The seven judges by a majority decision could also nullify the win and order for a repeat election. Should the court issue this order and proceed to declare Mr Chebukati unfit to continue serving as IEBC chairperson, this could trigger a political storm as Dr Ruto is likely to reject having Ms Cherera preside over the election over her decision to reject the results that declared him the winner amid claims she was rooting for a Raila win.
Azimio la Umoja lawyers have also asked the court to declare Mr Odinga the winner of the August 9 polls in the event a recount of votes places him ahead of Dr Ruto. The apex court had ordered for recount in 15 polling stations , but 41 were scrutinised.
Some of these issues came to the fore during the three-day hearing of the petition, with the judges asking petitioners tough questions on implications of some of the prayers sought.
“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?” posed Chief Justice Martha Koome .
Justice Mohamed Ibrahim also raised questions on a possible constitutional crisis should the court nullified the win and proceeded to declare Mr Chebukati unfit.
“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 impugned, are we nevertheless to declare the winner?” she posed.
Lawyer Mkangi says that removal of the commissioners would require following the laid procedure that may take more than the 60 days.
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“The prayers definitely create a paradox because part of the prayers is for a fresh election, but they do not want the body to preside over it. You can’t remove the commissioners, unless through the prescribed process,” explains Mr Mkangi.
“Article 140 (3) of the constitution provides a 60 days scope for fresh presidential elections in case of invalidation. The question is whether Article 251 and the hiring of new commissioners who can supervise and conduct the election can be achieved within this period. I don’t think the court will find him unfit because it will not be in the realm of the Supreme Court,” Mr Mkangi told the Sunday Nation.
Article 251 of the constitution provides that commissioners can only be removed through a petition filed in the National Assembly and tribunal by the President.
The law provides that chairperson and the commissioners who are constitutional holders can be removed only for serious violation of the constitution or any other law, including a contravention of chapter six, gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise.
But lawyer Willis Otieno, who appeared for Khalef Khalifa in the presidential petition, said Mr Chebukati’s exit would not stop any electoral process from going if that is what the court orders.
“Chebukati can decide to resign from office today, does it mean Kenya will not have elections? No, we still have Parliament, executive and the President exercising limited powers. The most important thing is that the will of the people is respected at the ballot,” said Mr Otieno.
Former Attorney-General Githu Muigai who appeared for Mr Chebukati urged the court not to grant the wishes of Mr Odinga and Ms Karua together with other petitioners saying the chairman enjoys security of tenure of office.
In the event the Supreme Court upholds that President-elect William Ruto was validly elected, the Assumption of the Office of President Committee headed by Head of Public Service and secretary to the Cabinet Joseph Kinyua will proceed with the transition process.
Article 141 of the constitution states that the President-elect shall be sworn-in on the first Tuesday following “the seventh day after the date on which the court renders a decision declaring the election to be valid, if any petition has been filed under Article 140.” This means he would be sworn in on September 13.
Supreme Court nullifies election and orders Chebukati team to preside over repeat poll
In the event of a nullification, the Supreme Court will order for a repeat poll within 60 days. This will mean that the country will hold a fresh presidential election in October.
The fresh election will involve all the presidential candidates that participated in the August 9 polls.
“If the Supreme Court determines the election of the President- elect to be invalid, a fresh election shall be held within 60 days after the determination,” states article 140 (3) of the constitution.
Nullifies and declare Chebukati unfit to hold office
In the event that Mr Chebukati is successfully removed from office — as requested by the petitioners — the vice-chairperson shall act as the chairperson and preside over a repeat presidential election.
The Supreme Court judges, in their questions, asked the petitioners about the viability of removing the chairman.
IEBC Act states that whenever a vacancy occurs in the office of the chairperson, the vice-chairperson shall act as the chairperson and exercise the powers and responsibilities of the chairperson until such a time as the chairperson is appointed.
According to the Act, the office of the chairperson or a member of the commission shall become vacant if the holder—(a) dies; (b) resigns from office by notice in writing addressed to the President; or (c) is removed from office under any of the circumstances specified in Article 251 and Chapter Six of the constitution.
Court declares Raila winner
Part of Azimio prayers to the Supreme Court was for the court to order for a recount of votes and declare him winner in the event figures placed him ahead of his main opponent in the race.
According to Elections Act, an election court may by order direct the electoral commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if— upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence.
