An affidavit filed at the Supreme Court of Kenya by Issa and Co. Advocates has accused the Independent Electoral and Boundaries Commission (IEBC) chairman, Wafula Chebukati, of acting illegally in verifying and announcing the winner of the August 9 presidential election.
The affidavit - which was received by the Supreme Court on Saturday, August 27 - outlined instances in which Chebukati allegedly breached the constitution during the electoral process leading to the declaration of Ruto as the president-elect.
The first instance, according to the affidavit, involved the failure to conduct the corporate business of the Commission as provided under Article 88, 248 and 249 of the Constitution.
Further, the affidavit accused Chebukati of failing to meet the standards of transparency, accountability and independence of the IEBC or safeguard the sovereignty of the Kenyan people as stipulated in the law.
In addition, it pointed out that Chebukati failed to provide a framework for the management of the presidential election results as provided under Article 86 of the Constitution.
Chebukati is also faulted for failing to transmit tabulated electronic results for the Presidential Elections as provided under Section 39 of the Elections Act.
The chair is also accused of providing late and inconsistent directions on critical elements of the elections management including the issuance of ballots, electronic transmission of results, and the complimentary mechanism for identification of voters without meaningful, timely and adequate participation of stakeholders.
The chair was accused of unilateral decision-making of critical elements of the electoral process, undermining the independence of the IEBC in the discharge of its functions.
"The 2nd Respondent (Chebukati) also compromised the electoral process and the sovereignty of the Kenyan people by acting in total disregard of the Constitution through real and perceived conduct of the commission in engaging in the investigation of the foreigners with ostensible interest to subvert the electoral process."
"The national returning officer is faulted for failing to publish clear procedures for the conduct of the verification and tallying of presidential election results contrary to Article 138(10) of the Constitution," read the affidavit in part.
The petition indicated that Chebukati's declaration of the presidential election results based on inconclusive and indeterminate results and at any rate, unverified results breached the law.
"Chebukati also failed to secure the electronic infrastructure from attack through the involvement of persons not directly appointed or contracted by the IEBC."
The IEBC boss is also accused of failing to publish the report of the turnout to the media contrary to clear guidelines adopted by the Commission and the media in pursuance of Article -35 of the Constitution.
"The 2nd Respondent acted solely through allocating himself unconstitutional powers of Returning Officer in clear derogation of Article 138 of the Constitution," argued the affidavit.
A lawyer who spoke to Kenyans.co.ke, however, argued that the affidavit in its form was invalid as it was not sanctioned by the Commission but by a section of commissioners.
"The affidavit, which is a response by IEBC vice chairperson Juliana Cherera and commissioners Irene Masit, Justus Nyang'aya and Francis Wanderi (5th, 6th, 7th, and 8th respondents), clearly indicated that it was "under the authority of the majority of the commissioners".
