“Election is a process. And the process ends upon the determination of the wish of the voter,” Advocate Otieno Willis made his opening remarks, representing petition number E003 of 2022, Khelef Khalifa and others.
The spirited advocate references Article 138 of the constitution while handling issue 6 head on. Issue 6 to be determined by the Supreme Court tackles whether the IEBC carried out the verification, tallying, and declaration of results in accordance with Article 138 (3) (c) and 138 (10) of the Constitution.
In between his presentation, he resorted to singing a popular nursery rhyme “Pinky Pinky Ponky” in Dholuo while demonstrating how IEBC Chair Wafula Chebukati ran the electoral body.
While sweating profusely Mr Otieno explained how Mr Chebukati had turned the commission’s mandate into a child’s play when he opted to sing the nursery rhyme.
Mr Otieno asked the court to take note of the second bit of Article 138 (3) (c) that states ‘The IEBC shall tally, verify the count and declare the results’, a task he says is the responsibility of the entire commission and not the commission’s chairman alone.
Referencing Article 138 (10) Willis outlines the role of the IREBC chairperson is to declare the winner and issue their certificate.
He goes ahead to break down the election process to four tiers namely; at the polling station, at the constituency tally centre, the national tally centre and at the commissions chairperson. While referencing the affidavits submitted by the commissioners, Willis says the majority of the commissioners confirmed they neither tallied nor verified the votes.
“The majority of the commissioners have told us they did not conduct a tally and verification process, meaning they skipped the tier at the national tally centre. Tier three failed!”
Otieno Willis allegedly claims Wafula Chebukati had previously acknowledged that the tally and verification process was his sole responsibility yet changed tune in his affidavit where he says, “The commission in a collated manner arrived at a decision.”
Alluding to the Maina Kiai case of 2017 where Khelef Khalifa was a petitioner, “IEBC as opposed to its chairperson is required to tally and verify results received.”
Willis submitted to the court that according to an audit conducted by KPMG on the IEBC revealed 481,711 persons who were not qualified to be on the register yet were on it; a number he notes is above the margin of victory.
