Osoro, 3 others in court to seek interpretation of Chebukati’s powers

South Mugirango Member of Parliament Silvanus Osoro and three voters have moved to court to seek an interpretation of the Elections Act on the powers conferred to electoral commission chairman Wafula Chebukati on declaration of presidential election results.

In two separate suits filed at the High Court’s Constitutional and Human Rights Division in Milimani, the petitioners are also challenging powers of the Supreme Court to declare the winner in a presidential election. 

Petitioners want Section 80(4) of the Elections Act declared unconstitutional. The said section, gives the Supreme Court powers to declare presidential election winner and also to direct IEBC to issue certificate of election to a presidential candidate upon recounting of ballot papers cast. 

Section states: “An election court may by order direct the commission to issue a certificate of election to a President, Member of Parliament or Member of County Assembly if upon recount of the ballots cast, the winner is apparent; and that winner is found not to have committed an election offence.”

Osoro (pictured), an ally of President-elect William Ruto, argues that the statutory provision is unconstitutional, null and void as it expressly contravenes Article 138(10) of the Constitution and also offends the principle of independence of IEBC.  “It is against this backdrop that I contend that Parliament overstepped on its mandate in clothing the Supreme Court (election court in presidential election dispute) with the power to direct IEBC to issue a particular candidate with the certificate of election,” Osorio says. 

The said Section excludes the election of governors from the class of offices that an election court can direct the commission to issue a certificate of election upon recount and re-tallying. 

“In essence, the presidential election results being hotly contested and of a higher political voltage than the other elective positions, the Supreme Court should be extremely cautious in assuming jurisdiction under Section 80(4) of the Elections Act,” the MP says. 

A similar petition by Ashford Mbogo, Michael Asola and Eric Githinji seeks to have the said law nullified and a declaration that only the IEBC chairperson can declare a presidential candidate as having been validly elected president.

They also want a declaration that the certificate of election issued to Ruto is legally valid unless and until the same is annulled by the Supreme Court.