When in a hole stop digging. Chebukati wages war with four Commissioners

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Wafula Chebukati still doesn’t get it. Opening a public fight with the four commissioners who rejected presidential election results is like digging his own grave. The Supreme Court is not going to mitigate a fight between Chebukati and other IEBC commissioners. That is not their job.

The best hope for Chebukati and the beneficiaries of his rigging would be to have the four commissioners declare that they have changed their minds and now are willing to support Chebukati and the presidential election results he announced two days ago. But even if the four commissioners were to do that, the Supreme Court has no powers to change the date for announcing the presidential election results which was midnight August 16, 2022.

The court has no powers to decide who between Chebukati and the four commissioners who rejected the results is right or wrong on the numbers. If all or at least majority of the commissioners voted to support the results that were announced by the chairman and then other political parties disputed the numbers declared by the IEBC then the court will ask for the numbers to be presented in court and they decided who is telling the truth. That is not the case in the 2022 presidential election results dispute.

The issue here is that the chairman failed to follow the constitution, specifically Article 138 of the constitution which stipulates quite clearly that the chairman can only announce presidential election results verified and approved by a majority of the IEBC commissioners.

Wafula Chebukati is now admitting even before he appears in court that it is true that four commissioners out of seven disagreed with him and he is trying to insinuate some criminal activities of the commissioners asking him to cook up the results.

“During a briefing meeting held on 15th August 2022 at around 3.00 pm before the final declaration of the Presidential Election results, the four Commissioners demanded that the Chairperson moderates the results for purpose of forcing an election Re-run contrary to their oath of office,” Chebukati said.

Chebukati said this is tantamount to subverting the Constitution and the sovereign will of the People of Kenya.

“The Chairperson refused to yield to this unconstitutional and illegal demand and proceeded to declare the results of the Presidential Election as received from the polling stations, and contained in Form 34A, in accordance with the law,” he said.

It is crazy but Chebukati’s own statement shows how much he does not understand the election laws in Kenya. He claims the four commissioners wanted him to change the numbers so there is a “Re-run” of the presidential elections.

Election result numbers whatever they are cannot cause a Re-run. In fact, the IEBC cannot declare a Re-run. It is only the Supreme Court that can declare a Re-run if the results are deemed to be fake and unacceptable.

If numbers don’t work for any candidate to get 50% + 1 the IEBC will order a run-off between the two top candidates, not a Re-run when all candidates are free to participate. So Obviously Chebukati does not know what he is talking about.

Then Chebukati goes back to inflating his role as the chairman of the IEBC claiming that he has the power to announce whatever numbers he wants as election results even without a majority vote from the IEBC commissioners.

“As the gazetted National Returning Officer and in the spirit of teamwork, the Chairperson involved all Commissioners including Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit in all activities of verification and tallying,” he said.

The Court of Appeal ruled on that matter a long time when Chebukati thought that being the chairman of the IEBC he was king and could do it all by himself.

Read: Yes the IEBC had a quorum on August 15, 2022. They had all seven members

Three things are very clear in that ruling.

One is that the constitution does not give the chairman of the IEBC “sweeping and boundless powers” to act as an individual while dealing with IEBC matters and more so election results.

Secondly that the chairman of the IEBC has no powers to act as a National Returning Officer when declaring the results but can only announce what has been approved by a majority of the commissioners at their plenary meeting because that is what his job is.

Third is that in the absence of majority support of the IEBC on the announcement of presidential election results, then such results become Chebukati and not IEBC results which render them null and void.

If Chebukati thought that ruling by the Court of Appeal was unconstitutional which is what he is saying now, he should have appealed against it to the Supreme Court. He did not and as of right now, that ruling stands and makes all the stuff Chebukati is talking about here just delusions of grandeur on his part.

One good thing about all the Chebukati crying around is that all the commissioners including Chebukati are likely to be the first to be called to the Supreme Court to tell the country what happened at Bomas. After that, the court may not even need to talk to Azimio and any other parties because the court will be in a position to determine if the presidential election results announced by Chebukati were done in accordance with the law or were null and void. There is no case after that and Chebukati seems to be speeding it up.

People waiting to count votes at the Supreme Court are wasting their time. That was the case in 2017 because all the commissioners agreed with the results and anybody disputing them had to prove the results were wrong.

This time it is a simple case of the IEBC chairman announcing results without authorization from the IEBC commissioners four of whom have publicly declared they reject the results. It does not matter what those results are but rather how they were arrived at and that is the matter before the Supreme Court. Other matters like intrigues within the IEBC and even that 100.01% some people are clinging to are completely irrelevant in this case.

Adongo Ogony is a Human Rights Activist and a Writer who lives in Toronto, Canada

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