President Uhuru Kenyatta and NASA presidential candidate Raila Odinga photo:courtesy
Government and Opposition lawyers made strong arguments to support their differing positions in a dispute over the declaration of presidential election results.
They presented their arguments as a hearing began of the case on whether the Independent Electoral and Boundaries Commission (IEBC) chairman is the only one mandated to declare final results of the presidential vote at the national tallying centre, as argued by the State and the commission.
The Opposition’s position is that the presidential results announced at the constituency by the returning officer are final and any review can only be done by an elections court.
Attorney General Githu Muigai and two lawyers hired by the commission supported the case in the Court of Appeal saying IEBC chairman Wafula Chebukati had the final word on the declaration of the presidential results.
But the Opposition led by lawyer James Orengo and Africog Director Maina Kiai have opposed the appeal against a High Court ruling that decreed results tallied and announced by the returning officers at the constituencies were final.
Addressing Court of Appeal judges Asike Makhandia, Kathurima M’inoti, Patrick Kiage, William Ouko and Agnes Murgor, the AG accused the courts of engaging in politics instead of sticking to their law interpretation role.
“We have considerations that are not of the law and the Constitution but of the best political outcome. The interpretation by the judges amounted to politics,” he said in the 38-minute submissions. “The entire case was inviting the court not to a constitutional text but to discuss a political theory.”
He argued that the country had a special law regarding the presidential election that says the chairman is the only gazetted person to declare the final results.
“There cannot be a presidential election if IEBC does not tally, verify and then declare the results. The chairman is vetted and has the trust of Kenyans. If we have a chief to count Ndumberi votes and declare them final… we do not even know whether he was sacked from his job,” argued Prof Githu. “This is a narrative that cannot be allowed.”
According to the AG, Kenya is one constituency when it comes to presidential polls and so the work of the returning officer is to count and announce what is at the polling centre.
He also argued that if the case was allowed, then come August 8 the country would have 290 presidential results and in case there was a challenge, the Supreme Court would have to grapple with 290 presidential poll cases.
“The Constitution creates a national constituency and the returning officer is the commission itself through the chairman,” the judges heard.
On the other hand, Mr Kiai’s lawyer, Willis Otieno, argued that the case was meant to cure rigging done at the national polling centre.
He said the power given to IEBC was delegated to the returning officers hence they were the final word on the presidential polls, a position that was taken by the Opposition.
Mr Otieno explained that according to the Constitution, results could only be altered through an election law, not at the national tallying centre.