Thursday’s fresh presidential election will go on as scheduled even after High Court judge George Odunga ruled that the process of appointing returning officers and their deputies was done contrary to the law.
Justice Odunga faulted the IEBC over the appointments, but said he would not cancel or postpone the election.
He said even though the issues raised in the case involved public interest, the nation would be faced with a recipe for chaos if such orders were issued.
The judge also declined to grant orders quashing a gazette notice that announced the appointment of the officers, who are presiding over the 290 constituencies.
“If the court grants the prayers sought herein, it would mean that the returning officers and their deputies will not preside over the fresh presidential election as regulation 3 of the Election Regulations requires IEBC to provide a list of them 14 days before gazettement,” Justice Odunga said.
He added: “For the election to proceed in the absence of the said officers would in my view constitute a crisis of unimaginable magnitude, simply put, it would be a recipe for chaos.”
The judge pointed out that the law still provides an avenue for redress to the petitioner if orders sought are not granted.
He ruled that all the processes leading to the election are subject to scrutiny and may well be grounds for nullification of election.
“In this case, as I have shown, election is a process and not an event, every stage of the electoral process is important and failure to adhere may, depending on the weight attached to it, warrant the nullification of the election,” Justice Odunga said.
The case was filed by Mr Hassan Abdi Abdille and Mr Khelef Khalifa — Muslim for Human Rights director — who is also part of the three petitioners who had sought to stop the repeat election at the Supreme Court.
The two accused IEBC of failing to accord political parties and independent candidates an opportunity to vet persons to be appointed in the said positions as required by the Elections regulations as well as the Fair Administrative Action Act.
“It was the applicants’ case that it will be a travesty of justice and an affront to the right to free, fair democratic elections to have strangers whose integrity, competence and fidelity to the law are unknown to oversee the polls,” the judge said.
But IEBC told the court that the officers and their deputies are permanent employees and were first appointed before the August 8 polls.
It said the officers’ appointment had already been gazetted in May but a fresh gazette notice had to be issued since some of them were transferred to ensure a transparent process.
But Justice Odunga said: “Instead of proceeding to submit the list of the proposed officers to political parties, the IEBC waited until October 9 to prepare the gazette notice, which was eventually published on October 12.”
IEBC has filed a notice of appeal against the ruling.