Legal experts have explained circumstances under which the Independent Electoral and Boundaries Commission (IEBC) may be unable to carry out a repeat election should the Supreme Court order so.
According to Senior Counsel Charles Kanjama, the current state of the Commission has already eroded the public trust on its ability to conduct any election.
Speaking to NTV on Saturday, August 27, Kanjama stated that the divisions in the Commission have painted a clear picture on the status of the electoral body, with four Commissioners led by the Vice Chair Juliana Cherera, Francis Wanderi, Professor Justus Nyangaya and Irene Masit, having opposed the Chairman, Wafula Chebukati.
"The current Commission as constituted is fundamentally crippled, it cannot have the level of confidence required to carry out a repeat election," Kanjama argued.
To this end, the Senior Counsel stated that the Supreme Court is aware of the underlying challenges at the Commission and it will have to decide if the Judges will order the repeat election and how it will be done.
He said that the 7-Judge bench will give what he termed as "consequential direction" on how a repeat poll will have to be done should they call for one.
"If the two factions come into place and their is broken mutual respect, there will be leakage of information to interested parties. There will be lack of confidentiality."
The four Commissioners opposed the position of Chebukati, and commissioners Abdi Abdi Yakub Guliye and Boya Molu, who termed the election as free, fair, credible and verifiable.
Chebukati, who is the National Returning Officer (NRO), and the two other commissioners were at the Bomas of Kenya on August 15, when he announced William Ruto as the winner of the presidential vote.
While the announcement was about to take place, Cherera and her team held a press conference at a city hotel where they termed the process of verifying and announcing the results as opaque.
The four argued that they could not take ownership of the results as they were not part of the whole process.
According to Kanjama, in case of a repeat election, IEBC will be divided into two, with one faction of three commissioners led by Chebukati while the second one will be led by Cherera.
Kanjama added that this will still cast doubts on the credibility of the election outcome, regardless of who takes the day.
"Azimio has said it clear that they do not trust Chebukati to carry out any election, the other side of Kenya Kwanza have also laid allegations that the four commissioners cannot be trusted. It will be four vs three," Kanjama argued.
Asked whether the court can go outside the stipulated timeframe for a repeat poll, Kanjama maintained that the highest court on land made a ruling that timelines within the Constitution are fixed and cannot be extended unless in case of a state of the emergency.
"The Supreme Court has previously said that Constitutional timeframes are fixed and cannot be extended unless if there is a state of emergency."
Kanjama was responding to a query on a prayer by the Azimio team to compel Supreme Court to order for a re-run in the disputed presidential election results.
