This archive report was first published on 28 July 2019.
Supreme Court Leaves IEBC Chairman Wafula Chebukati in a State of Confusion ¶
On October 17, 2017, the Supreme Court of Kenya made a ruling that left IEBC Chairman Wafula Chebukati in a state of confusion. The court ruled that Chebukati cannot correct errors identified in Forms 34B or amend Forms 34A where election results had discrepancies.
According to the court's judgment on September 20, 2017, the failure by the IEBC to verify the results in consultation with the electoral commission before declaring them went against the expectation of Article 138 (3) (c) of the Constitution.
Deputy Chief Justice Philomena Mwilu stated that the Supreme Court ruling that nullified the August 8 presidential election was clear and did not need any clarification. She emphasized that the Justices found it mischievous or disregard of the constitution regarding the duties of the IEBC to verify and accurately tally presidential election results.
DCJ Mwilu was particularly angered by Lawyer Paul Muite's remarks during the petition hearing when he told the Justices that their judgment had caused confusion. Muite demanded clarity in the court's judgment, asking which forms Chebukati should rely on, Forms 34A or 34B?
However, the Supreme Court's ruling contradicts the Court of Appeal ruling on Maina Kiai, which stated that what is announced at the polling station is final. The Court had prohibited Chebukati from 'varying, confirming, altering, modifying or adjusting the results.'
Despite the ruling, NASA lawyer Willis Otieno advised Chebukati that there is no law that bars the chairperson from being the petitioner. If he finds that results in the declaration forms do not match, then he should go to the court and say he cannot declare the presidential results because some of the result declaration forms didn't match at all.
