CJ Martha Koome during a session on Wednesday, August 31, challenged Raila’s demands on Chebukati, stating that anyone with an election offense faces the law.
Koome questioned the team whether the 7-judge bench should expel Chebukati in violation of the Constitution and without giving the respondent the right to reply.
The Chief Justice argued that the law is offering a procedure through which the commission’s chair can be ousted from office.
“My dilemma is that this is a constitutional officer (Chebukati) holder and that there is a procedure to remove such. How do we go about that? Should we make an order contrary to the constitution given that he also has a right of reply?
“We have an Election Offenses Act and anyone who commits any offense 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 offenses?” Questioned Koome.
Her sentiments were repeated by Justice Mohamed Ibrahim, a member of the Supreme Court Bench, who hinted at the impossibility of Raila’s demands to be declared the winner or a fresh election ordered while the court also declares Chebukati unfit to hold office.
“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 the winner. We would like you to lay a legal and constitutional basis for this in your rejoinder.”
“You want a fresh election to take place. One of the reliefs you are asking for is that the Chairman of IEBC is declared unfit to hold public office, how is that possible? How do you want us to navigate that within the law? What is the de facto state under the law?” He questioned.
Raila’s legal team headed by Senior Counsel James Orengo argued that Chebukati was unfit to conduct a re-run should the court nullify the August 9 General Election.
An interview with the media, however, arouses doubt on the possibility of the Azimio la Umoja demands since Chebukati’s post was possibly cited by the Law.
Bobby Mkangi a constitutional lawyer claims that in case a re-run is ordered, the time frame to carry out the exercise keeps him in office as the only National Returning officer with a mandate to declare the presidential winner in the election.
“That is what Azimio wants but it is not possible to have Chebukati out of the Commission should the Supreme Court order for a re-run. It’s not possible because of the constitutional time frame that is given by the constitution to conduct a re-run which is 60 days,” Mkangi stated.
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The team of lawyers is expected to provide answers to the pertinent questions on Friday, September 2, 2022, the final day for hearings before the judges retreat to write their judgment, which will be delivered on Monday, September 5.
