George Murugu: Chebukati did not go rogue, acted within Constitution mandate
Lawyers representing the Independent Electoral and Boundaries Commission and its chairperson while responding to the questions regarding Wafula Chebukati’s conduct have argued that he did not go rogue.
Throughout the hearings, the split between the IEBC commissioners has been a sticking point with all fingers being pointed at Chebukati’s failure to create cohesion.
In their affidavits, the four dissenting commissioners, who rejected the results as declared by the chairperson, told the court that Chebukati did not involve them in the verification and tallying of the results.
The split resulted in a contest as to who is speaking on behalf of the IEBC, with Chebukati and Commissioners Boya Molu, Abdi Guliye and CEO, Marjan Hussein Marjan on one side and Deputy Chairperson Julian Cherera, Irene Masit Justus Nyangaya, and Francis Wanderi on the other.
The court ruled that lawyers appointed by the chairperson and the CEO will speak on behalf of the commission while admitting the affidavits from the four commissioners.
Yesterday, Justice William Ouka inquired whether the gazettement of Wafula Chebukati as a returning officer was as an agent of the commission or as a national returning officer in his capacity as the chairperson of IEBC.
Drawing his response from Article 138, 10 which places an obligation on the chairperson to declare results, lawyer George Murugu submitted that the gazettement was to account for the result that follows a presidential election.
In his remarks, Murugu told the court the gazettement was in fulfilment of the constitutional obligation. He said, “That particular gazettement should not be read to mean that the chairperson had gone rogue.”
Justice Njoki Ndungu had also asked former Chief Justice Githu Muigai what the intentions of the constitutional drafters in creating independent commissions were.
In his response, Githui Muigai who is representing the IEBC, and Wafula Chebukati submitted that the IEBC chairperson has executive authority since commissioners themselves do some actual work.
He says the drafters of the constitution aimed at creating greater autonomy and functional independence, thus creating independent commissions that don’t function the same way.
Muigai compared the IEBC to the Judicial Service Commission, which in theory is a corporate body yet in functioning the Chief Justice makes many decisions in the name of the JSC.
Raila Odinga and Martha Karua in their petition have urged the court to dismiss IEBC Chairperson Wafula Chebukati if they order a re-run of the August 9th presidential polls. The constitution mandates the re-run to be conducted in 60 days.
According to many legal analysts, dismissing Chairperson Wafula Chebukati ahead of a re-run would throw the country into a legal lacuna.
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