7 major questions Supreme Court judges want presidential election petitioners to answer

Petitioners challenging the outcome of the 2022 presidential election on Wednesday made their presentations in court where they sought to convince the highest court in the land to nullify the August 9th polls.

The legal teams for the petitioners in the case raised various claims among them interference with the election system and divisions within the commission, seeking to prove that the election did not meet the constitutional threshold of being free, fair and transparent.

After the day-long submissions, the Supreme Court judges raised various questions seeking to understand some of the arguments raised by the petitioners.

Forms 34A

Key among the queries raised by the seven-judge bench led by Chief Justice Martha Koome was how forms 34A, whose content is manually filled in, were being intercepted within the IEBC servers, doctored and then re-uploaded onto the servers.

“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 left by road and compare. Is it possible that that capturing midair somehow magically changes the content of the one that left by road?” posed judge Smokin Wanjala.

On the same issue of forms 34A, Justice Njoki Ndung’u posed: “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?”

Deputy Chief Justice Philomena Mwilu asked a related question on the same, urging to know in what form was Forms 34A being uploaded onto the IEBC servers.

“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 polling station to Bomas, the things that happen in between, must be described by the nature of that image at the starting point,” she submitted.

IEBC Divisions

The Apex court judges also sought to know the genesis of the infighting within the electoral commission, which some of the petitioners have cited as grounds for the indictment of the chairperson Wafula Chebukati.

“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,” posed Justice Isaac Lenaola.

“When did this commission become so dysfunctional? What was the effect of becoming that dysfunctional? What corrective measures were attempted and with what result.?” DCJ Philomena Mwilu.

Justice Smokin Wanjala wondered why the commissioners never spoke out earlier on the intrigues at the commission. He further wondered how powerful Chebukati is to intimidate the commissioners.

“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?" He posed.

Chebukati’s Fate

The judges also sought more indulgence on some of the reliefs sought by the petitioners among them a declaration that IEBC Chairman Wafula Chebukati was culpable of electoral malpractice and should thus be found unfit to oversee elections as well as unfit to hold office.

“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, 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 asked the petitioners.

Justice Ibrahim also addressed the implications of declaring Chebukati unfit to hold office in view of the legal gap that would result should there be an order for a fresh election.

“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. How is that possible? What are your proposals practically on the ground?" he posed

Nullification of results

Justice Mohamed Ibrahim also questioned the legal basis of the relief sought by the petitioners who are asking for a nullification of the recounts, a recount of votes and declaration of Azimio leader Raila Odinga and his running mate Martha Karua as winners of the August 9th presidential poll.

“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?” posed Justice Ibrahim.

"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 still to declare irrespective of all other processes?" she posed.

Kakamega, Mombasa Elections postponement

The Supreme Court also sought to understand from the petitioners on how, the postponement of Governor elections in Kakamega and Mombasa Counties affected the outcome of the presidential polls yet elections for all the elective seats are separately provided for in the law.

“You said the postponement of election 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?” questioned Justice William Ouko. “Do we have any scientific nexus to this or is it just an assumption that this happens?”

Justice Njoki Ndung’u on her part asked: “If we look at the Constitution, each of these elections are 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 on presidential election 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,” she asked.

Violence at Bomas

Justice Lenaola asked the commissioners to explain further what impact the violence witnessed at Bomas National Tallying centre had on the elections.

"What role did violence play at Bomas? 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,” he said.

“What is the relevance of the percentage of voter turn out to determining whether a candidate marshalled the magic number,” Justice Wanjala posed to the petitioners.