According to lawyer Willis Otieno, article 142 of the Constitution states that the incumbent President continues until a new one is elected.
“The President shall hold office for a term beginning on the date on which the President was sworn in, and ending when the person next elected President following Article 136 (2) (a) is sworn in,” Article 142 of the Constitution reads.
Notably, the Constitution in 142 (2) adds that a person shall not hold office as President for more than two terms.
Otieno argues that Chebukati is not immortal and he can resign from office but this does not mean the Commission and elections will still be conducted in the country.
“This court should not shy away if they find it necessary to indict the Chairperson Mr. Chebukati for the transgressions and the singular manner in which he has handled the elections to the detriment of Kenyans,” he stated.
The advocate told the supreme court judges that the Parliament is well constituted and the Judiciary is still in place and these two arms of government are well placed to determine when the next polls will be held.
Otieno further argued that the President will continue in office but his powers will be regulated as the law indicates.
Advocate Otieno also answered questions raised by President-elect Willam Ruto’s lawyer, Fred Ngatia, who had raised concerns that election officials are tired and they need to move on to other assignments.
Ngatia had told the Supreme Court judges that the nullification of the August 9 presidential election would also create a gap in the country’s leadership.
The lawyer declared that the country deserves regime legitimacy after an election and it was up to the Supreme court to validate the incoming government.
“Our constitutional values and provisions shouldn’t be sacrificed at the altar of convenience. If the election officials are tired and cannot conduct election we have more Kenyans who are willing to do this work properly, give them that opportunity,” he stated.
Otieno also argued that the IEBC did not exercise due diligence before contracting the Greek firm Inform Lykos to print ballot papers.
“IEBC must pay that penalty, it cannot transfer the consequences of their lack of diligence,” the advocate explained.
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Senior Counsel James Orengo also reiterated that the court ought to punish perpetrators of electoral offenses.
