Supreme Court judges posed questions to Azimio leader Raila Odinga's legal team, seeking granular details in the ongoing presidential petition.
Speaking during the hearing on Wednesday, August 31, Chief Justice Martha Koome allowed the judges to ask Raila's lawyers, led by Senior Counsel James Orengo to come clean on some of the matters raised in their submissions.
Kenyans.co.ke looks at the questions and points of clarification sought by the seven-judge bench as compiled below:
Justice William Ouko
What is the relevance of rejected votes when computing the results of the outcome of the vote?
The postponement of election in certain areas and you say this resulted in voter suppression. That people wake up early in the morning to go and vote for a particular candidate say an MCA or senator. Do we have any nexus on this or is it just an assumption that this happens?
What are some of the elements that must be satisfied before the court can act or grant the relief under Section 80 (4)?
Justice Isaac Lenaola
You addressed us on the PDF format of the form 34 As but in the pleadings, there is the JPEG question. Would you like to clarify on that? In the context of staging and tampering and so on, explain to us how that happens in real time?
Justice Njoki Ndung'u
What you are telling us is that form 34 As went to the KIEMS kit at the polling station to the constituency, then from the constituency and the portal, the numbers were changed. I presume that when the KIEMS kits take the image, and the forms were filled in hand writing, how can you explain then how a form can be changed in handwriting because this is not typed?
On the issue of voter repression, each of these elections are separately provided for meaning they are six separate elections in one.
Is the voter repression only to the presidential election or is that an argument that can be used by an MCA in Kakamega County to say that because the gubernatorial vote has been cancelled, my vote was affected because they were all separate election?
Justice Smokin Wanjala
The elephant in the room is 50 per cent plus one. What is the relevance of the percentage of the voter turn out to determine whether a candidate marshalled the magical number?
The original form 34A leaves the polling station to the tallying centre by road, its image goes to the same destination virtually. Somewhere it is compromised which means you would find different content. To determine this, you would need the physical form. Is it possible that the capturing that happened mid-air also somehow magically changes the content of the one that left by road?
Justice Mohamed Ibrahim
I am concerned with the alternative relief sought. The petitioner requested that there should be a nullification, then a recount and the chair be ordered to declare him and the second petitioner as winner. We would like you to lay a legal and constitutional basis for this in your rejoinder.
You want a fresh election to take place. One of the reliefs you are asking is that the Chairman of IEBC be declared unfit to hold public office, how is that possible? How do you want us to navigate that within the law? What is the de facto state under the law?
Justice Philomena Mwilu
What we have heard about a commission is similar to what an accident witnessed once described as a video and drama. When did this commission become so dysfunctional? What corrective measures were attempted and with what result?
On Forms 34A, in what format is it when it leaves the polling station as the things that happen in between must be described by the same?
What needs to be done as a corrective measure against the Chair and is it to ignore the constitutional procedures and safeguards already in place?
If every process undertaken has so far been impugned, are we nevertheless to declare the winner? Are we to use the same figures ( given by the IEBC) to declare the winner?
Chief Justice Martha Koome
My dilemma is that this is a constitutional officer (Chebukati) holder and that there is a procedure to remove such. How do we go about that? Should we make an order contrary to the constitution given that he also has a right of reply?
We have an Election Offenses Act and anyone who commits any offense ought to be charged before the court with the jurisdiction and I gazzetted magistrates to deal with the same. wouldn't we be usurping the power of the magistrates if we have to make any order regarding election offences?
