Chebukati cannot amend results, Supreme Court rules

Chebukati cannot amend results, Supreme Court rules

The Supreme Court on Tuesday ruled that IEBC Chairperson, Wafula Chebukati, cannot correct errors identified in Forms 34B or amend Forms 34A where election results differ.

Chebukati had on October 4 filed a case at the Supreme Court seeking interpretation on his role in the verification of Forms 34A and Forms 34B in the fresh presidential election scheduled for October 26.

Deputy Chief Justice, Philomena Mwilu, said that their ruling on the nullification of the August 8 presidential election was clear and does not need any clarification.

“We find it mischievous or disregard of the constitution regarding the duties of 1st respondent to verify and accurately tally presidential election results together with 2nd respondents. The application is based on the assumption that the results in Forms 34A and those in Forms 34B are mutually exclusive, when indeed one is supposed to give fourth of the other,” said Mwilu.

Mwilu further said that; “The applicants, Chebukati and IEBC, want to instill a notion in the public that there exists an ambiguity in the court’s detailed judgment on 20th September even where there is none.”

The Supreme Court states that before generating Forms 34B, the returning officers are supposed to verify results in Forms 34A, adding that the court clarified that results in Forms 34B must be verified with the electronically transmitted Forms 34A.

The electoral commission chairperson based his quest on the Maina Kiai case where the Court of Appeal ruled that he cannot; correct, vary, confirm, alter, modify or adjust results transmitted to the Bomas of Kenya from the constituency level.

During its submissions through lawyer, Kamau Karori, the electoral commission argued that they premeditated a scenario where Chebukati would be obliged to declare results in the event there is a discrepancy in result declaration forms; these sentiments were also adopted by Chebukati’s lawyer Paul Muite.

“According to this court’s ruling on 20th September, the chair is supposed to compare results before declaring results. But in the event of verifying the forms, what is the way forward in the event that the Forms 34A and Forms 34B have not matched? What is the chair of IEBC supposed to do in this case… will he go on to declare results even when he knows there is a discrepancy in the results declaration forms?”Argued the IEBC lawyer.

On their part, NASA said that the law is very clear on the matter, insisting that there is nothing to clarify in the Maina Kiai case as the “Court of Appeal extensively dealt with the issue”. The opposition adds that if IEBC had faithfully read through the appellate court ruling, they would not have sought clarification for guidance.

They accused Chebukati of “reducing the highest court in the country to an interpretive court to a lower one”, advising the Supreme Court to dismiss the case on account that it lacks clear grounds.

“There is no law that bars the chairperson from being the petitioner. If s/he finds that results in the declaration forms do not match, as is expected, then s/he should go to the court and say I cannot declare these presidential results because some of the result declaration forms didn’t match at all,” said NASA lawyer, Willis Otieno.

The Law Society of Kenya, as an amicus curiae, said that it had not seen any loopholes in the Court of Appeal ruling.

Form 34A is a results declaration forms that the presiding officer at a polling station is supposed to fill, tally and must be signed by all party agents. The presiding officer is then supposed to hand over this form to the Constituency Returning Officer (CRO). The CRO is supposed to generate Form 34B based on the respective Form 34A from the presiding officer.

 

Tags:

supreme court Deputy chief Justice Philomena Mbete Mwilu IEBC and Chairman Wafula Chebukati OCTOBER 26 PRESIDENTIAL ELECTION Ant-IEBC protests independent elections and boundaries commission JSC through lawyer Paul Muite

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