By Samuel Ndalusia
There was a short standoff at the Supreme Court of Kenya yesterday as Lawyer Paul Muite together with the other lawyers representing electoral commission battled it out with the Judges in an effort to seek clarification on for the IEBC chairman Wafula Chebukati. Mr. Chebukati had filed a petition with the Supreme Court last week seeking clarification on how he’s supposed to handle discrepancies arising in tallies between Forms 34B and Forms 34A.
The IEBC chairman is arguing that while the Supreme Court judgement nullifying the August 8 presidential elections faulted the commission for not verifying all form 34As before declaring the presidential election winner, the Court of Appeal had in the Maina Kiai case – before the August 8 elections – ruled that the results announced at the polling stations is final.
“Arising from the judgement of this Honourable court, I am now an unclear as to what as the returning officer for the presidential election I am supposed to do in view of the clear prohibition at page 39 of the judgement of the Court of Appeal in the Maina Kiai case barring me from ‘varying, confirming, altering, modifying or adjusting’ the results,” reads Chebukati’s affidavit filed with the supreme Court of Kenya.
The Judges of the Supreme Court were particularly angered by Lawyer Paul Muite’s remarks during the hearing when he told the Justices of the highest court in the land that, “Your judgement has caused confusion.” He later added after a confrontation by the Deputy Chief Justice Philemon Mwilu that, “We want clarity in your judgement. Which forms should Wafula Chebukati rely on? Is it Forms 34A or 34B?” Justice Mwilu had told Muite that they didn’t honestly understand where the problem was between the Maina Kiai case and what they said in their judgement and asked the lawyer to put it in a language that they can understand. “This is not an appeal of Maina Kiai’s case.” DCJ Philemon Mwilu told Muite.
Mwilu said she couldn’t recall where the judges said the commission should verify the results at the national tallying centre. “Did we say touch or move a comma? Change figures? Did we say that in our judgement? Where? I don’t remember saying that and I know participated in that judgement. Where the problem is, is what is it that we are required to clarify?” asked DCJ Mwilu.
The Chief Justice David Maraga had to intervene after Lawyer Muite responded that they’re seeking a clarification on how the presidential returning officer should verify the results before announcing the winner. The CJ insisted that Lawyer Paul Muite reads aloud (amid his protests that he knew what the section says) Section 39(1) (c) of the Elections Act: For purposes of a presidential election the commission shall electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre.
“Perhaps Chief Justice should explain what you mean by simple,” retorted Lawyer Muite after he finished reading the section of the Election Act and the CJ told him it was that simple. The court will be ruling on Wednesday, October 11 on whether it is in its jurisdiction to hear the case.