Electoral agency Chairman Wafula Chebukati has said he cannot be punished for denying ODM leader Raila Odinga and Kenyans access to servers used in the 2017 presidential election as the order was directed to the commission.

Chebukati, in opposing an application by a Mombasa resident - Khelef  Khalifa - seeking to cite him for contempt, said the the court lacks jurisdiction to entertain the application. 

He argues that the orders issued by the Supreme Court on August 28,  2017 were issued against the IEBC, which was the first respondent in the case. 

“No order was issued against me personally. I was never sued in my personal capacity in the Raila Odinga case,” he said. 

“In nullifying the 2017 presidential result, the Supreme Court did not attribute any criminal intent or culpability on me or any other commissioner,” he added.

The Supreme Court, while nullifying President Uhuru Kenyatta’s victory in the August 2017 election, ordered the Independent Electoral and Boundaries Commission to grant the petitioners and court-appointed information technology experts read-only access to their servers.

However, that order according to Khalifa has never been complied with.

Through lawyer Willis Otieno, Khelef said the August 23, 2017 orders as issued by the apex court were served upon the returning officer of the presidential elections - Chebukati - who was a party to the petition.

In the said order, the apex court directed that an ICT officer designated by the court and two independent IT experts be appointed by the court to supervise access to the technology including servers, held by the Independent Electoral and Boundaries Commission for the 2017 presidential election.

"Wafula has however refused and willfully denied the parties and the Kenyan people access to the technology and particularly servers used in the 2017 presidential election." 

However, Chebukati saids there is no evidence demonstrating that Khelef sought the information from IEBC and it was denied.

He further cites Article 250 (9) of the Constitution as read together with Section 15 of the Independent Electoral and Boundaries Act provides that a member of a commission, or the holder of an independent office, is not personally liable for anything done in good faith in the performance of a function of office.

“The intentional delay in making the current application (three years after judgement) is targeted towards achieving one purpose. Derailing and frustrating my ability to discharge my mandate as the chairperson of the commission, taking into consideration the preparation for the forthcoming 2022 General Election,” he argued.  

Khelef however maintains that Chebukati was the returning officer for the presidential elections and the orders issued were in respect of the elections in which the returning officer was in charge and control.

“He cannot at this stage seek to run away from his duty as the overall returning officer for the elections and lay the blame on wilful disobedience of the orders of the  Court on the Commission and not himself who is recognized as the in charge of the presidential elections and all its processes,” he said. By Susan Muhindi, The Star