Tough Questions Supreme Court Judges Want Raila To Answer

Chief Justice Martha Koome on Wednesday, August 31 allowed the apex court judges to field questions to Raila's lawyers

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Sep 1, 2022 - 05:37
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Tough Questions Supreme Court Judges Want Raila To Answer
Supreme Court judges as of August 31, 2022. /COURTESY

The Supreme Court of Kenya posed serious questions to Azimio la Umoja leader Raila Odinga's legal team, seeking clarifications with regard to the ongoing presidential petition.

Chief Justice Martha Koome on Wednesday, August 31 allowed the apex court judges to field questions to Raila's lawyers, led by Senior Counsel James Orengo, as they wanted to seek answers from the lawyers, which they will have to address on day two of the hearing.

Viral Tea looks at some of the questions each of the seven judges asked the lawyers for clarification:

Chief Justice Martha Koome

You have asked this court to find the chairman culpable of various breaches and even if there should be a repeat election, he cannot preside…My dilemma is, that this is a constitutional office holder. Under Article 251(2) there is a detailed procedure for the removal of a constitutional office holder. How do we go about that? Would we be making an order contrary to the constitution?

Chief Justice Martha Koome and her deputy, Philomena Mwilu, at the Supreme Court of Kenya on August 31, 2022. /ZAKHEEM RAJAN

We have an Election Offenses Act and anyone who commits any offence ought to be charged before the court with the jurisdiction and I gazetted 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?

At what point does the Commission cease to function as a corporate entity? Was it when results from 27 constituencies were not announced?

Justify the claim that the Commission did not make arrangements for 700,000 IEBC officials to vote.

Deputy Chief Justice Philomena Mwilu

What we have heard about a commission is similar to what an accident witnessed once described as a video and drama (kama drama kama vindeo). When did this commission become so dysfunctional? What corrective measures were attempted and with what result?

In the event we arrive at figures showing either the current president-elect has more votes or the petitioner in petition number 5 (Raila) has more numbers, what are we to do…as we are still to declare irrespective of all other processes?

When the Form 34A is captured using the KIEMS kit at the polling station, is it an image, a photo or what is it called? That time when it is taken and as it is being sent originally, is it in pdf form? The journey from the polling station to Bomas, and the things that happen in between, must be described by the nature of that image at the starting point.

What should be done as a corrective measure on the Chair of this dysfunctional Commission? And is the measure to ignore the constitutional procedures and safeguards already in place?

If every process undertaken by the IEBC has been impugned, is the Supreme Court to declare a winner? In the event that the court arrives at figures that show either the president-elect has more numbers or the lead petitioner has more numbers, is the court to declare a winner irrespective of all other processes having been impugned?

Justice Smokin Wanjala

I have been intrigued…we have this Form 34A…for ease of understanding, let us say it leaves the polling station by road to go to the national tallying centre. Its image leaves to go to the same destination, but this time by air.

Somewhere, in midair, the image is captured and all sorts of things are done before it is re-uploaded. This means if you go to that re-uploaded image you will see different content from what it had at the polling station. To determine whether that has actually taken place. You would have to go back to the tallying centre and locate the one that was left by road and compare. Is it possible that capturing midair somehow magically changes the content of the one that left by road?

The elephant in the room is 50 per cent plus one. What is the relevance of the percentage of the voter turnout to determine whether a candidate marshalled the magical number?

We have been informed that the commissioners were allocated roles other than those for which they were appointed. Why didn’t they protest? Is this chairperson we are dealing with such a terror that no one can deal with? Why did these serious Kenyans not seize that chance and protest to the people of Kenya?

Justice Njoki Ndung'u

I don’t understand much about ICT but I presume that at the polling station when the KIEMS kit takes the image, these forms are written in handwriting. How can a form be changed in handwriting…. How does that happen?

If we look at the Constitution, each of these elections is separately provided for in terms of qualifications, nomination process even dispute resolution. A voter gets 6 ballots and drops them into six ballot boxes.”

Is voter repression only in presidential elections or is that an argument that can be used by an MCA in Kakamega County to say that because the governor elections were not held on that day, their votes were also affected?

How were Forms 34A altered during transmission yet they had been written by hand?

Justice Isaac Lenaola

We saw the commissioners in public reading out the results. They did this until the 11th hour. What evidence do we have that this is not an afterthought? Do we have anything showing that for the last three or four months they documented these grievances and that there was therefore a storm brewing

To those appearing for the four IEBC commissioners, what evidence can be provided to prove that their contestation at the point of the final declaration was in good faith? Did they document any grievances during the four months prior to the election?

What role did violence play at the Bomas of Kenya National Tallying Centre? We have the evidence of the chairman that he could do this or that because he was attacked…You need to explain that as the commission.

Raila Odinga's lawyers at the Supreme Court on August 31, 2022. /ZAKHEEM RAJAN

The argument regarding the diaspora votes and 290 constituencies was innovative, however, the law only applies to MP elections, how does it apply to a presidential election?

Should the court order removal of Chebukati, would the Commission still be properly constituted to conduct a presidential election with six commissioners?

Justice William Ouko

You said the postponement of elections in certain areas resulted in voter suppression…people wake up one morning to vote for a specific category of voters. E.g MCA, Senator but not the other positions? Do we have any scientific nexus to 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 Mohamed Ibrahim

If an election is ordered to be done, yet one of the reliefs you are seeking is that the chair be declared unfit to hold office…our constitution has never contemplated such a lacuna (unfilled space). How is that possible? What are your proposals practically on the ground?

We would like you to lay a legal basis for this in your rejoinder. No remedy or relief that has been sought will be taken casually…Is this doable, feasible in law and in all other practical ways?

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 winners. We would like you to lay a legal and constitutional basis for this in your rejoinder. 

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