, NAIROBI, Kenya, Jun 6 – The Court of Appeal on Tuesday began hearing the appeal filed by the Independent Electoral and Boundaries Commission challenging the High Court declaration that the presidential election results declared by the constituency returning officer are final and can only be questioned in the election court.
The IEBC represented by lawyers Paul Nyamodi and Wambua Kilonzo were supported by Attorney General Githu Muigai in their submissions and went up against Willis Otieno and Professor Ben Sihanya who represent Maina Kiai, Khelef Khalifa and Tirop Kitur – the three who first petitioned the court to declare the presidential election results as declared by the constituency returning officers, final.
A decision IEBC argued was erroneous on the grounds that Article 138 the Constitution vests the power to make such declaration in the Commission and more specifically its Chairman who would act as the returning officer for the presidential election and not its employees under which category it placed the constituency returning officers.
“The only act that takes place at a polling station with reference to the presidential election is the counting,” Nyamodi submitted.
Otieno however countered that in the event of an election, the Commission donates its powers to the constituency returning officers.
IEBC also sought to make the case that the High Court exceeded its jurisdiction when it decided the matter given the Supreme Court reserves the mandate to hear and determine disputes as relate to a presidential election.
The respondents however countered that such express jurisdiction was confined to the qualification of a presidential candidate or thereafter where the results are contested.
“It is absurd to imagine that only the Supreme Court can hear and determine a case where a Presidential candidate has been charged with a traffic offence.”
The IEBC also brought up the question of res judicata with Kilonzo accusing Kiai of having been party to the Africa Centre for Open Governance case in which similar issues were canvassed.
Issues he submitted also formed part of the 2013 Raila Odinga presidential petition.
All of which Otieno denied: “They brought it up in the High Court and here again after we established that Kiai was not a party in the AFRICOG case.”
The post-election violence of 2008 also came up with both sides seeking to reference the Kriegler report to their benefit.
Nyamodi argued that it informed the creation of special provisions in the Constitution (Article 138) for the conduct of the presidential election while Sihanya argued that this is what made it so critical for there to be transparency in the conduct of the said election and thereby the move to have the results announced at the constituency level be final.
Attorney General Muigai however took issue with the politicisation of the matter urging the bench to interpret the provisions of Article 138 as is and not take it upon themselves to advance an agenda of “political correctness.”
The Kiai petition, Githu submitted, sought to paint the IEBC Commissioners as an, “inherently suspect vote stealing cartel,” despite them having gone through a rigorous vetting process and explained as confounding the Opposition’s insistence on having the presidential election results announced by the constituency returning officers be final.
“They marched to force a change of commissioners and now they would rather place their confidence in a hypothetical former chief they know nothing about.”
IEBC also sought to make the case that human is to error and it fell to the commissioners to, “verify not alter,” the presidential election results also pointing out that there can only be one result, not 290.
“The whole of Kenya is one constituency for the purpose of electing a President,” Attorney General Githu Muigai submitted.
The respondents however maintained that to make such “corrections” in the absence of the agents who signed off on the legitimacy of the constituency results, would be anything but transparent.
The case resumes Wednesday.