Lawyers give different interpretations about Raila’s chances of securing victory at Supreme Court

By , K24 Digital
On Tue, 16 Aug, 2022 19:17 | 4 mins read
Lawyers give different interpretations about Raila's chances of securing victory at Supreme Court
Raila Odinga arrives at KICC for a press conference on August 16, 2022. PHOTO/ODM/Twitter.

Azimio la Umoja-One Kenya presidential candidate Raila Odinga has indicated that he shall challenge the results announced by Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati.

Raila said Chebukati acted alone without involving a majority of IEBC commissioners.

"The figures announced by Chebukati are null and void and should be quashed by a court of law," Raila said during a press conference at KICC on Tuesday, August 16.

"We totally reject the results as announced by Chebukati yesterday. It is not up to us to determine if Chebukati committed illegality or not. It is up to the court to do so," he added.

Lawyers differ on Raila's chances at the Supreme Court

City lawyer Donald Kipkorir is upbeat about Raila securing a ruling by the Supreme Court which will nullify the presidential results announced by Chebukati.

Kipkorir in a series of tweets details how Chebukati violated the constitution when he declared William Ruto the winner in the presidential race.

"Any decision by the Minority Three Commissioners at Bomas will be NULL & VOID. Chebukati pronouncement will be voided by Supreme Court," he tweeted.

According to the popular lawyer, article 138 of the constitution requires that the declared results by the chairman have to be fully tallied and verified by the commission.

"Article 138 of The Constitution says the Presidential votes shall be “tallied & verified” by the Commission & announced by the Chairman. Chairman can only announce what Commission has tallied & verified. He can’t pick results from a magic bag!

"Constitution is given effect by Statutes, established law, tradition & conventions. The parts relating to IEBC is effectuated by the IEBC Act & the Elections Act. That IEBC Chairman is Returning Officer was by Gazette Notice which can’t supplant the Constitution or Statutes.

"IEBC Act stipulates that all decisions of the Commission is by unanimity or majority decision. Tallying & verifying votes is the principal work of IEBC. It can only be done in full plenary of Commissioners. Four out of Seven rejected the results," Kipkorir tweeted.

The popular lawyer exuded confidence that the Supreme Court will nullify the presidential results and call for a repeat election. He said if goes that way then President Uhuru Kenyatta will be in office until November.

"From Today, Supreme Court has 14 DAYS to hear & determine Presidential Elections … Then Fresh Presidential Elections will be held within Sixty Days thereafter … President Uhuru Kenyatta will be in Office until November," he tweeted.

Constitutional lawyer Steve Ogolla however holds a different interpretation. He argues that the law as per the provisions of article 138 (10) does not demand quorum among commissioners before results are declared.

"Article 138(10) of the Constitution provides that the Chairperson of IEBC shall declare the results of the presidential election. The law does not demand quorum. Differently put, walkout by four Commissioners taints but does not invalidate the results," Ogolla tweeted.

Ogolla further said that discrepancies in elections are common. He explained the circumstances in which the Supreme Court can nullify the election results.

"The court will have to order probably scrutiny of the ballots or scrutiny of the votes cast and then identify which votes were irregularly cast in favour of his Excellency the Deputy President or the President-elect and ought not to have been cast in his favour. Then do a mathematical calculation and then see if we subtract these votes does he fall below the threshold of 50 plus one per cent vote?

"If it does then the fate of that election shall have been determined we shall go back to a fresh election. If it doesn't the Supreme court has said discrepancies generally are commonplace in any election. Discrepancies in election management are commonplace in any election and that is why section 83 of the elections act circumscribes circumstances under which discrepancies may determine the fate of an election," Ogolla said in an interview on a local TV station.

Ogolla noted that the court previously ruled that the results tallied at the polling station were final, and if the 34Bs have an issue, the 34As will be used, and since the Azimio side did not complain about the 34As, then there is no case to answer at the Supreme Court.

"I want to tell you as an observer of this election, nobody questioned the integrity of the Form 34As. To the extent that those forms have not been impugned, the Supreme Court will not interfere with the outcome of this election," he said.

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