Just before the close of Supreme Court proceedings on Thursday evening, the seven-bench judges directed a number of questions to IEBC and President-elect William Ruto’s lawyers, which they are required to answer in less than an hour before the petitioners’ rejoinder.
Justice Martha Koome
- Why did the chairperson deem it fit to allocate commissioners domestic chores leaving core business of IEBC to CEO to supervise?
- Why were they allocated other duties as opposed to their constitutional mandate?
- Why didn’t the chairperson tell Kenyans exactly what happened, that “we did election and we have these results but we have a dissenting voice and this is why they are dissenting”?
- Why didn’t he explain to Kenyans where the other commissioners had gone when he was making the announcement?
- Why was the live streaming stopped?
- How were Forms 34As in the petitioners’ affidavits photoshopped?
Justice Philomena Mwilu
- Clarify what is the constitutional role of the six commissioners under Article 140 of the Constitution. Juxta-pose their role against that of the secretariat and the chairperson.
- The fact that numbers are undisputed, comment on the walking out of the four commissioners almost as the chairperson was almost to announce the results.
- Does their walking out mean anything under Article 140? If it does why?
- Did the postponement of eight electoral areas affect only the presidential vote? Have the subsequent election returned a different result to the turnout? If they have, in what respect?
- What is the IEBC supposed to do when there are no agents for the candidates since Article 81 places the burden of ensuring that we have a fair and free election on IEBC?
- What is the position to be taken by a commission in an election dispute?
- What is the role of the seven commissioners?
- Is it a position to be taken by any party or neutral like IEBC? If they take a position as they have done in this case, what is the court to do?
- Tell me what IEBC was supposed to do. On one hand, they were being told to hurry up yet they still had another day?
Justice William Ouko
- What constitutes stray ballots and how are they distributed to counties?
- Did you have instances where a voter walked into a polling station and voted for one candidate and not the others?
- Was Wafula Chebukati appointed as an agent for the presidential election by the commission or was he a national returning officer in his capacity as the chairman of the commission?
- Assuming a manual register was used, are you able to say what was the actual number in the polling stations?
- Respond to what Okiya Omtatah presented in a PowerPoint demonstrating that 1.6 million votes were streaming in many hours after the closure of voting.
- Explain why the commission stopped streaming the results live on a screen at the National Tallying Centre.
Justice Isaac Lenaola
- Could you speak to the qualitative and quantitative value of the numbers and what is the test to apply?
- Why was Chebukati in a hurry to announce the presidential election results yet he had an extra day to do so, then reach out to the other commissioners, arrives at a consensus and addresses the concerning the results from the 27 constituencies?
- Talk about Regulation 87(3) of the Elections Act.
- The format of the elections results Form was initially jpeg, at which point does it convert to PDF, forget the CSV.
- What do you want the court to do about the submission that Chebukati lied about the visitation by the National Security Advisory Council?
Justice Njoki Ndung’u
- To IEBC- You said the term commission can be used in multiple senses. How do we know which sense applies and when?
- What happens if the IEBC chairman announces the wrong results, or becomes incapacitated or dead? Who will announce the result?
- What is the role of the other commissioners?
- Since the IEBC chairman is emerging as a powerful person, who checks him/her?
- What happens when the chairperson decides to work with the CEO who is not vetted?
- When results come for the other seats and are announced or declared at the constituency, how is that information transmitted to the public?
- When transmitted, are the commissioners involved or is it the CEO only or it is the chairperson only involved in the declaration of the transmitted results?
Justice Smokin Wanjala
- What is oversight if the commissioners are not involved?
- What was the supplier of technology, Smartmatic International, maintaining in the elections system?
- What was the maintenance of the server by the Venezuelan?
- If purpose of call to Chebukati by Joseph Kinyua was to influence the decoration of results, are we to assume they (NSAC) already knew the results?
- On the voter turnout announced by the chairman and said it would rise, how relevant is it in determining whether a candidate garnered 50% plus one?
- When calm was restored at the National Tallying center, why didn’t the chairperson include the results of the 27 constituencies in the announcement?
Justice Mohamed Ibrahim
- Would you expect us to make a determination on the chaos that occurred at the National Tallying Centre and attribute blame yet the matter is not before us?
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