Wafula Chebukati is not IEBC and cannot solely act on behalf of the Commission AG Kihara Kariuki affidavit
AG Kihara Kariuki in his response affidavit to the Supreme Court petition argues that IEBC Chairman, Wafula Chebukati, cannot solely act on behalf of the Commission.
Kihara Kariuki contends that while the IEBC is an independent constitutional commission created in accordance with Article 88 of the Constitution, Chebukati is a member of the Commission in a response that was sent to the Supreme Court on Saturday, August 27.
He cited Section 39 (3) of the Elections Act 2011 which states that the Commission shall announce the final results in the order in which the tallying of the results is completed.
While Article 138 of the Constitution mandates that the IEBC Chairperson announce the results of the presidential election, the AG contends that this provision shouldn’t be understood to grant Chebukati ultimate control over the other commissioners.
“An Act that renders Commissioners superfluous in the discharge of their constitutional duties in favour of either an individual Commissioner or a hired member of staff of a Commission would negate all known canons of constitutional and statutory interpretation,” the AG stated in his response.
AG Kihara Kariuki moots that there is a distinction between the roles of the Chairperson and those given to the Commission.
He cited a ruling by the Court of Appeal in the Michael Sistu Mwaura Kamau v Ethics & Anti-Corruption Commission & 4 others [2017] case.
“It is clear from the provisions of both section 11(1) and 11(6) that the Act has separated the powers of the EACC and those of the commissioners. It is crystal clear to us that the functions of investigating and making recommendations to the DPP belong corporately to EACC and not to the secretary or the secretariat alone,” Kariuki argued.
Kariuki reckoned that the law intentionally recommended that commissions are unevenly constituted for the purpose of decision-making by a majority – a decision which is regarded as that of the Commission.
“That Constitution provides for an uneven minimum and maximum number of Commissioners, which speaks to provision for majority and minority in case of voting in the absence of consensus.”
In addition, Attorney General Paul Kihara Kariuki in his response affidavit said will not be opposing the eight presidential petitions attempting to invalidate Deputy President William Ruto’s victory in the August polls.
“Take notice that the Hon. Attorney General, the 9th respondent herein, pursuant to Rule 11(2) of Supreme Court Presidential Election Rules, 2017 which requires a party to indicate whether they intend to oppose the petition, hereby signifies to the honourable court that he does not intend to oppose the petition,” Ogeto stated in the notice.
The Solicitor General, however, stated that Attorney General Kihara Kariuki would oppose the petition filed by former Gatundu South Member of Parliament, Moses Kuria.
Kuria’s petition seeks the nation’s highest court to reject Raila Odinga and Martha Karua’s attempt to have the results of the presidential election on August 9 challenged by their election appeal.
In what is seen as political history in the nation, Kihara deviated from the course taken by his predecessor, who opposed the petitions in both the 2013 and 2017 elections.
The Attorney General pleaded with the Supreme Court to consider various principles of interpretation of the law before making its final ruling.
Among them is an interpretation based on the text and the context, where, the intent and purport of the Constitution, the objectives and aspirations, as well as the mischief to be remedied, are also brought into focus.
Also read,
Attorney General Kihara Kariuki responds on the presidential petition
Raila granted permission to use DCI forensic report in his Supreme Court petition
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