At 4.30 pm on August 15, 2022, Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati called a meeting of the polls body’s top brass at the Bomas of Kenya auditorium.
At the meeting, all commissioners were presented with documents indicating the final results of the presidential election that had been held six days earlier.
While all eight commissioners have confirmed the meeting, events that transpired therein vary depending on which faction one asks.
That was the last time the IEBC would speak in one voice, as the results presented have caused a wide rift among commissioners over the authenticity of figures that saw Mr Chebukati declare William Ruto the president-elect.
Mr Chebukati is supported by commissioners Bola Molu and Abdi Guliye, and CEO Hussein Marjan.
On the other side are commissioners Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit.
Tomorrow, the Supreme Court will become the new battleground for the divided commission, whose bickering has spilt over into affidavits in response to petitions seeking to nullify the August 9, 2022, presidential election.
The four commissioners, in their affidavits, have maintained that Mr Chebukati opted to fly solo during the tallying and verification of votes and that there is doubt about the figures that saw Dr Ruto declared president-elect.
The quartet argues that since it assumed office in September 2021, the IEBC chairperson has maintained a lack of transparency that ended with Mr Chebukati asking them to rubber-stamp unverified results in the Presidential election.
In her affidavit, Ms Cherera, through lawyer Apollo Mboya, revealed that the IEBC could have been conducting two tallying processes simultaneously.
Ms Cherera said that during the August 15 meeting, Mr Chebukati handed all commissioners results that he claimed to have verified and tallied from the IEBC’s back-end server.
The commissioner does not clarify in court papers whether the results Mr Chebukati provided were different from those that were being relayed to the public on the floor of Bomas, where IEBC hosted its national tallying centre.
She, however, insists that Mr Chebukati refused to allow requests from a section of commissioners to verify the results in the documents they were handed despite the fact that there were concerns raised by agents representing Mr Raila Odinga and Dr William Ruto and which remained unresolved.
“In the meeting, the commission once again sought to tally and verify the results, but the chairperson indicated that he would announce the results and that the commissioners were at liberty to join him at the podium. On August 15, 2022, the chairperson proceeded to announce what he termed the final presidential election results, which had not been tallied and verified by the commission,” Ms Cherera says in court papers.
Mr Wanderi, who filed his affidavit Saturday afternoon through J.M Njenga & Company Advocates, has asked the Supreme Court to outline the roles of the chairperson and commissioners in the verification and tallying of presidential election results.
Petitioners and the four IEBC bosses say Article 138 of the Constitution vests power in the entire commission, and that Mr Chebukati violated that aspect of the law in declaring results that were internally disputed.
Mr Chebukati has, in his response, said the law gives him authority as the returning officer for presidential elections to tally and verify results before announcing them to the public.
Mr Wanderi now wants the Supreme Court to declare that the IEBC and its chairperson are not synonymous during the tallying and verification process.
Independent Electoral and Boundaries Commission Chairman Wafula Chebukati (left) with Vice Chairperson Juliana Cherera.
Photo credit: Jeff Angote I Nation Media Group
The commissioner is also seeking a determination on the role of other commissioners during the election process, and on what happens when the total number of ballots cast exceeds what is captured by voter identification kits.
Mr Wanderi has also asked the court to determine what happens when the variance between presidential votes cast and those of other elective positions is big.
The four commissioners had on August 15 held a press conference at Serena Hotel, disowning the results Mr Chebukati announced.
They now say in court papers that Mr Chebukati from the onset sidelined them in decision-making before, during and after elections.
Ms Masit, in her affidavit filed by O. Ouma J & Associates, claims Mr Chebukati and IEBC CEO Marjan Hussein intentionally bungled procurement for ballot papers intended for the Kakamega and Mombasa gubernatorial races alongside six National Assembly elections.
Ms Masit holds that Mr Chebukati and Mr Hussein failed to facilitate contract implementation teams to inspect the printing of ballots for the elections that were postponed.
“Ms Masit avers that towards the postponement of elections in the areas listed above, the chairperson of the commission and the commission secretary/CEO (Mr Hussein) are solely responsible on account of their failure to ensure quality assurance of the vendor of the election materials was conducted and this omission they deliberately permitted.”
Mr Odinga and his running mate, Martha Karua , have, in their petition, claimed that most of the postponed elections were in their strongholds and that the move was aimed at suppressing voter turnout and in effect Azimio’s numbers at the ballot.
All four commissioners insist that results for 27 constituencies were yet to be tallied or verified when Mr Chebukati announced that Dr Ruto was the winner.
Among the constituencies, Azimio and the four commissioners hold had pending results were Mvita, Matunga, Kilifi North, Bura, Fafi, Wajir North, Eldas, Mandera West, Tigania East, Mbeere North, Ndaragua, Kapenguria, and Kacheliba.
Others are Narok North, Narok South, Narok West, Kajiado East, Kandunyi, Nyakach, Rangwe, Ndhiwa, Suba North, Kuria East, Bomachoge, Borabu, Kitutu Chache North, and West Mugirango.
The four commissioners argue that midway through tallying and verification, Mr Chebukati reassigned them and other senior staffers without consultation.
Deputy CEO Ruth Kulundu was moved from head of election operations to protocol duties such as receiving VIPs.
Ms Massit, the commissioner in charge of the IEBC’s legal committee, was reassigned to hospitality which covers logistics and security.
Mr Nyang’aya, the commissioner in charge of ICT, was also reassigned to protocol duties.
Ms Cherera claims that the IEBC chairperson last year rushed through the procurement process to ensure that the new commissioners were not involved.
She adds that Mr Chebukati secretly ordered Greek firm Lykos (Hellas) SA to print a second set of result transmission forms.
Ms Cherera says that on July 21, 2022, she was in Greece with another commissioner, Francis Wanderi to inspect ballot printing by Eyelpidon-based Lykos (Hellas) SA when they discovered that Mr Chebukati had instructed the firm to print two sets of forms 34A.
Form 34A is the primary presidential election results transmission form that is filled out at polling stations.
The Court of Appeal in 2017 ruled that results from polling stations filled in form 34A are final, and can only be overturned by the Supreme Court after filing of a petition.
Ms Cherera holds that various political parties protested the discovery of the second set of documents, boxing the IEBC into calling for a meeting with Presidential candidates to resolve the standoff.
The IEBC commissioner does not state in her affidavit whether the second set of forms 34A is still intact.
Mr Nyang’aya has through Rachier & Amollo advocates claimed that a foreigner identified as Godino Omor was able to access the server and pull down the results posted.
He said the foreigner would access the server using ID ‘0’, pull down the results that had been uploaded from polling stations and later upload fresh ones.
Three other individuals – Abdidahir Maalim, Moses Sunkuli and Gideon Balang – allegedly played the same role.
