Former Prime Minister and Azimio la Umoja leader Raila Odinga expressed his dissatisfaction with the results announced by the Independent Electoral and Boundaries Commission (IEBC), declaring William Ruto as president-elect.
Odinga on Tuesday, August 16, announced that his party may seek redress at the Supreme Court.
The key contentious issues that may form the basis of the petition include the lack of quorum in the Commission after four of the seven commissioners dissented.
Led by Vice Chairperson Juliana Cherera, the protesting group accused IEBC boss Wafula Chebukati of “opaqueness” in the tallying process and hence could not take responsibility for the outcome.
The exit of the four commissioners left behind only three others Wafula Chebukati (chairperson), Boya Molu, and Abdi Guliye.
This has been the subject of heated discussion as a section of Kenyans claimed that IEBC was not quorate to announce the results.
Prof Makau Mutua, the spokesperson of the Raila Odinga campaign secretariat downplayed the declaration terming it invalid for lack of quorum.
“Any results IEBC Chair Wafula Chebukati announces are invalid because he had no quorum of commissioners to hold a plenary and make such a weighty decision. The ongoing process at Bomas is now illegal,” he stated.
However, according to constitutional lawyer Bob Mkangi- the person mandated to declare the results of a presidential election is the chairperson who is the returning officer.
"For the declaration of the official results, there is no requirement for a quorum. Quorum is required for the meetings of the commissioners," he stated.
This perspective was also shared by Ahmednasir Abdullahi, a senior counsel, and a Constitutional lawyer.
"A Presidential election has a single returning officer, The chairman. Other commissioners have no role in a presidential election," the former Law Society of Kenya (LSK) president stated.
According to the Constitution, Article 138 (3), the IEBC is required to tally, verify and declare the results. In March 2022, the Supreme Court ruled that three commissioners who undertook the verification process in the Building Bridges Initiative (BBI) project met the required threshold.
Discrepancy in Numbers
Azimio La Umoja questioned the difference in the number of votes in the presidential election and other elective positions.
“Is it possible for 300,000 people in a county to vote for President, but only 200,000 votes for Governor? It can not happen in the real world,” Prof Makau Mutua wondered.
In a puzzle similar to this, the Commission in 2017 strained to explain where extra ballot papers would end up in case a voter wished to only vote for one particular position.
“Where a voter collects the six ballots, and he wants to vote for only one candidate where do the other five ballots go?" Philomena Mwilu- the Deputy Chief Justice asked.
The four dissenting commissioners also raised concern about the total tally of the percentages which amounted to 100.01%.
The Opaque Debate
In her words, the vote tally was in excess of 0.01% which translates to over 140,000 votes. However, the veracity of that calculation was questioned by fact-checkers.
The law requires any aggrieved party to file a petition at the Supreme Court within seven days after IEBC declares a president-elect.
The apex court shall then have fourteen days to hear, determine and rule on the fate of the election.
