List of questions Supreme Court judges want respondents to answer

The hearing of the 2022 presidential election petition continued on Thursday, with the respondents mounting their defence against claims made by the petitioners who are seeking nullification of the August 9th election.

At the tail end of Thursday’s proceedings, the seven-judge bench led by Chief Justice Martha Koome took turns to ask questions on issues ranging from the technology of the election to the role of the 7 commissioners in tallying and verifying election results.

The legal team for the respondents who include President-elect William Ruto and the IEBC have been given 15 minutes on Friday to respond to the issues raised by the judges.

Here is a summary of the questions asked by the seven judges:

Justice William Ouko

Was the IEBC Chairperson Wafula Chebukati gazetted as an agent of the commission or as a National Returning Officer in his capacity as chairman of the commission? If he was an agent of the commission, were there any resolutions preceding this appointment?

What was the number of voters from the 235 polling stations where KIEMS kits were not used?

Respond to Okiya Omtata's submission that 1.6 million votes were streaming in many hours after the closure of voting

Kenyans were following the streaming of results live and then something happened and that stopped. Explain to us what might have happened for that to stop. 

Justice Isaac Lenaola

Githu Muigai said the whole dispute revolves around numbers... looking at the qualitative/quantitative test, What is the approach we should apply?

There was an extra day by which Chebukati could have declared the results. Why did he not wait until that day, violence or no violence, reach out to the 4 commissioners, try to reach a consensus, and address the issue of the 27 constituencies so that these suspicions that have cropped up could not be an issue? Is there any reason why he did not take advantage of the extra day to do what he had to do?

We are at a point where public office is becoming exceedingly dangerous. Falsehoods are being peddled. What do you want this court to do in the context of the issues?

The format taken of forms 34A is initially jpeg, at what point does it convert to pdf after taking the image?

You suggested the term commission can be used in multiple senses. How do we know which sense will be applied when?

Independent commissions and offices were introduced to deal with issues of authoritarianism, accountability, and transparency and to do away with issues of one passing power. But from the narrative, we are hearing we have an all-powerful chair. What is the check if the commissioners have nothing to do with his role?

What would happen if the chair was to announce the wrong results, mentally incapacitated or dead? Who then would announce the results?

What is the role of the other commissioners? It seems to me that the chair works with the CEO who is not vetted by parliament but seems to wield immense power over and above the other commissioners.

When results for other elective positions area announced locally at constituency or county tallying centres, how is that information transmitted to the public? Are the commissioners involved or is it the CEO only or chairperson only? Who is involved in the public declaration of those results? 

We have been told some commissioners were allocated oversight roles others welfare scenarios, protocol and media… what is oversight and what would they be oversighting over? At what point does the chair disengage from other commissioners?

You said the contract between IEBC and Smartmatic company involved supply and maintenance. What does this maintenance entail? What was he (Venezuelan) maintaining in that server?

How relevant is this voter turnout to the determination of whether a candidate got 50 percent plus one vote?

Who do we believe on the question of National Security Advisory Council? Lawyer George Oraro says the team led by Attorney General Kihara Kariuki visited the chair at Bomas to ask him to expedite verification and tallying of results on the other hand the chair says the distinguished individuals paid that visit to tell him to re-engineer the results in favour of one of the candidates.

“If the intention was to influence the declaration of the results, are we to assume by the time that call was placed they already knew the results,” posed Justice Wanjala.

When calm was restored at Bomas why did the chair not include the results from the 27 constituencies in the final tally yet we are told they had been verified and tallied?

What advice would Advocate Kioko Kilukumi in line with the King Solomon biblical narrative where one mother was saying cut the baby but the other was willing to let the baby be handed to the other was willing to surrender the baby?

Would you expect us to make a determination on the chaos that erupted at Bomas, apportion blame yet the matter is not before us and yet neither of us were witnesses or at Bomas?

Deputy Chief Justice Philomena Mwilu

What is the constitutional role of the six commissioners under article 140 and juxtaposition their role against that of the staff of the secretariat and the chair? Article 138(3c)

Comment about the walking away of the 4 commissioners to go to Serena, almost at the same time when the chairperson was about to announce their results. How was it timed?  Does their walking out mean anything under Article 140? If it does, what is it? If it doesn’t, why not?

Did the postponement of elections in 8 regions among them Mombasa and Kakamega only affect the vote of the president? And since elections have since taken in the postponed area, have the subsequent elections returned a different result on the turnout? If they have, in what aspect?

Where agents are not present during an election. Is it not the role of IEBC to ensure that the law is upheld or the process in the event where there is no agency?

Some of the 4 commissioners were named as respondents as well as interested parties. By whatever name called they remain commissioners. We have seen affidavits they have sworn which tend to show that they take certain positions. What is the position to be taken by a commissioner? is it a position of the party or a neutral position of IEBC? And when they take a position, as I think they have done in this case, what is the court to do?

About Mr. Joseph Kinyua’s call and the night meetings… The commission is supposed to be independent. When it comes to writing the judgement what I’m supposed to write?

Why did the IEBC Chairperson deem it fit to allocate ‘domestic’ chores living the core business of IEBC to the CEO to supervise?

Why did the live streaming of results stop?

Demonstrate how forms 34A attached by the respondents in their affidavit were photoshopped.