The Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati on Monday, August 15 declared William Ruto as President-elect.
The ceremony, however, was marred by controversy and chaos at the Bomas of Kenya, IEBC's National tallying centre.
Minutes before Chebukati made the declaration, four IEBC commissioners disowned the results, choosing to hold a parallel press briefing, where they described the poll outcome as opaque.
The four included IEBC vice chair Juliana Cherera, commissioners Francis Wanderi, Irene Masit and Justus Nyang’aya – who, apart from distancing themselves from the results, decline to field questions from journalists.
“We are not at Bomas because we cannot take ownership of the results that are going to be announced,” Cherera stated.
This, however, could have legal implication despite the President-elect, Ruto stating that the commissioners absconded the function but had no mandate to declare a winner, since Chebukati, the presidential returning officer was in charge.
What the law says about the quorum
The Second schedule Section 8, Act No 1 of 2017 and Section 31, Act No. 34 of 2017 of the IEBC Act 2017 states that; -
"Unless a unanimous decision is reached, a decision on any matter before the Commission shall be by a majority of the members present and voting."
Legal experts who spoke to Kenyans.co.ke held that Chebukati did not err in exercising his mandate as the Chairperson of the Commission.
"The Commissioners were making verbal statement, but not in writing. It is not the Commissioners who make the announcement. The directions Act and the Constitution does not recognise them at that particular stage.
But whoever feels the results were not announced in accordance with the law should file a petition at the Supreme Court," Martin Nyakundi, a city-based lawyer and lecturer at Mt Kenya University stated.
The lawyer stated that the four were just commissioners but Chebukati discharged his role as the National Returning Officer, who can only make a declaration for the presidential election results.
"It would have amounted to a constitutional crisis, otherwise Chebukati had a mandate to announce the results within seven days, according to election Act No 24"
Should the function have failed to take effect, Nyakundi stated that IEBC would have sought for an advisory opinion from the Supreme Court under Article 163 on what needs to be done.
The law further states that IEBC must meet a quorum to undertake its obligation in carrying out an election exercise which states they they shall not be less that a half.
"The quorum for the conduct of business at a meeting of the Commission shall be at least half of the existing members of the Commission, provided that the quorum shall not be less than three members."
In a Supreme Court ruling in April this year on the Building Bridges Initiative (BBI), IEBC won the protracted court battle when it was found that it had quorum to verify the signatures.
This cleared path for this year's general election at a time when it had only three Commissioners.
“Although paragraph 5 of the Second Schedule of the IEBC Act fixed the quorum at five commissioners, this cannot override the Constitution. Moreover, there was a judgement of the High Court in which... it was held that the IEBC was quorate and therefore the Commission cannot be faulted for following the said decision,” Chief Justice Martha Koome ruled.