The Presidential Election Petition – filed at the Supreme Court of the Republic of Kenya by NASA candidate Raila Odinga and his running mate Kalonzo Musyoka –went to full hearing on Tuesday with the Petitioners, The First Respondent (IEBC), The Second Respondent (IEBC Chair Wafula Chebukati) and one of the Interested Parties (Dr. Ekuru Aukot) making their submissions.
ACCESS TO SERVERS AND FORM 34A, B & C
Before the hearing began, the 7 judge bench first delivered a ruling on a request made by the petitioners seeking to be allowed access to the IEBC servers.
The Court ALLOWED The Petitioners a READ ONLY access to IEBC servers. The process to scrutinize the server system will proceed as follows:
- Each party will avail TWO ICT experts.
- The process will be carried out in the presence of an ICT expert from the court.
- IEBC will avail all the KIEMS kits including the ones which were not used.
- IEBC will provide details of all those who logged into the system and access logs of the system from 5th August 2017 to date.
The court also allowed The Petitioners to:
- Access and scrutinize all Form 34A, 34B & 34C used to declare President Uhuru Kenyatta the winner of the 8/8/2017 elections.
- Get support of necessary reading devices to assertion the documents availed by IEBC.
All the parties are supposed to present their reports before the court by Wednesday, 29th August 2017 by 5pm.
NASA MAKE THEIR SUBMISSIONS
The Petitioners were the first to make their submissions.
The key highlight of NASA’s entire argument is the submission done by one of their lawyers, OTIENDE AMOLLO.
Quoting an affidavit filed by a statistician – Otiende argued that, an Error Adjustment Formula was used to ‘rig’ the elections; that is, Uhuru = 1.2045Raila + 183546
Otiende’s argument has sparked a heated debate among Kenyans with everyone trying to use their arithmetic skills, to either concur or disagree with the advocate.
IEBC, CHEBUKATI RESPONSE
After NASA was done with their submissions, it was the turn of The First Respondent (IEBC). IEBC’s response came together with that of The Second Respondent (IEBC Chair Wafula Chebukati).
Below are key highlights.
The Journey around the Presidential election dispute:
- Evidence of hacking is missing in the evidence by Raila, despite logs that were tabled and claims widely publicized.
- Letter by Nasa to IEBC – The letter says, “We have data that confirms Raila Odinga got 8.4M votes.”
- Demand 3 – Raila and Kalonzo be declared President and Deputy President respectively.
- From NASA’s own data, Siaya had results showing that there were 20k more voters that the registered voters.
We, therefore, arrive at only one conclusion; the allegation should not be allowed to stand.
- No requirement exists in law for stamping of forms.
- On Form 34A, the only way to challenge is to have agents challenge it at the polling station or have an affidavit challenging the announcement. In this petition, none was filed.
- Use the correct Bar Code Reader and it will read the correct details. Do not use Android phones.
- There was no tampering of forms. The Petitioner’s allegation is vague.
- There was a Gazette notice that effected changes on polling officers. The fact that Raila Odinga did not read the notices does not make them illegal changes.
- There were no results from un-gazetted polling stations.
On the allegation that 1,482,202 Kenyans voted for the President and not other seats, Immaculate Kassait in her affidavit explains that the variance between different elections is because of:
- Diaspora voters who only voted for President.
- Prisoners who only voted for President.
- Stray ballots i.e. those wrongly cast on other boxes.
- Rejected votes
- Muhati was in office at the point when Mr. Musando passed on. It is a lie to claim he was not in office.
- No agent has filed an affidavit in court saying that what was recorded in Form 34A is different from what was announced.
- No single person swore an affidavit saying that they could not vote because of intimidation or improper influence.
- According to the EU Observer report, security was appropriately deployed to ensure all voters cast their ballots.
- IEBC referred the issue of state resources to the DPP. It is not correct to say IEBC did not do anything.
- NASA is not a political party, it cannot even appoint agents. An agent swearing an affidavit as a Nasa agent is therefore in doubt.
- The Communications Authority gave a go ahead for the use of Cloud. The allegation by Raila Odinga that IEBC ignored Communication Authority is a lie.
- The rejected votes matter is already settled.
- High standard of proof required to invalidate an election.
- Raila Odinga and Kalonzo Musyoka bear the burden of proof.
- Raila on one side argues that technology failed and on the other says technology did not fail.
- Insignificant and minor errors should not be used to invalidate an election
- The Court Of Appeal ruled that IEBC cannot cure any errors in Form 34A. That can only be changed by an electoral Court.
- Evidence by Raila Odinga is not weighty, real or meaningful.
TO END THE DAY, The Second Respondent’s lead counsel, P.L.O. Lumumba made his submissions; and he did it in style.
The celebrated law professor argued in part:
“Out of the 15 million odd votes, only 23 thousand of them are in doubt. My Lords, the maxim of law used to be, ‘de minimis non curat lex.’ Prof. Ojwang’ taught me that and you remember, ‘of small things, the law knows no cure.’
And I am submitting to us that, what we have here are petty grievances, administrative errors, and no court in the world has ever nullified a presidential election on the basis of what falls under the de minimis rule.”
THE HEARING CONTINUES ON WEDNESDAY, 29th AUGUST WHEN THE FOLLOWING WILL MAKE THEIR SUBMISSIONS:
- The Third Respondent (President Uhuru Kenyatta).
- Amicus Curiae A.G. Prof. Githu Muigai.
- The Law Society of Kenya represented by Counsel Stephen Mwenesi.
- Interested Party Prof. Michael Wainaina represented by Counsel Harrison Kinyanjui.