Presidential contender Raila Odinga's legal team will have a hard time justifying their demands to have the Independent Electoral and Boundaries Commission (IEBC) Chairperson Wafula Chebukati removed from office.
This is after Chief Justice Martha Koome - during the Wednesday, August 31, proceeding - raised weighty questions based on the submissions by the former Prime Minister's counsels.
Koome questioned the team whether the 7-judge bench should oust Chebukati in contravention of the Constitution and without offering the respondent a right of reply.
This is because, she argued, that the law has outlined a procedure through which the commission's chair can be kicked out of office.
"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?" Questioned Koome.
Her sentiments were shared by Justice Mohamed Ibrahim, a member of the Supreme Court Bench, who hinted at the impossibility in Raila's demands to be declared the winner or a fresh election ordered while the court also declares Chebukati unfit to hold office.
"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?" He questioned.
Raila's legal team headed by Senior Counsel James Orengo argued that Chebukati was unfit to conduct a re-run should the court nullify the August 9 General Election.
In an interview with Kenyans.co.ke, experts, however, cast doubt on the practicality of the Azimio la Umoja demands since Chebukati's post was protected by the Law.
Constitutional lawyer Bobby Mkangi argued that in case a re-run is ordered, the time frame to carry out the exercise keeps him in office as the only National Returning officer with mandate to declare presidential winner in the election.
"That is what Azimio want but it is not possible to have Chebukati out of the Commission should the Supreme Court order for a re-run. Its not possible because of constitutional time frame that is given by the constitution to conduct a re-run which is 60 days," Mkangi stated.
The team of lawyer's are expected to provide answers to the pertinent questions on Friday, September 2, 2022, the final day for hearings before the judges retreat to write their judgment, that will be delivered on on Monday, September 5.
Below is the video:
