President Uhuru Kenyatta (Third Respondent), Attorney General Githu Muigai,(Amicus Curiae), Law Society of Kenya (Amicus Curiae) and Prof Michael Wainaina (Interested party), were the last to make their submissions before the Supreme Court – on Tuesday 29th August 2017 – before the 7 judge bench went on recess to prepare a ruling for the Presidential Election Petition filed by NASA’s Raila Odinga and his running mate Kalonzo Musyoka challenging Kenyatta’s win during the 8/8/2017 polls.
Here is a highlight of the submissions made on that day:
- PRESIDENT KENYATTA
- The standards of voting were complied with.
- There is NO allegation that the people entitled to vote did NOT vote.
- Voting was by SECRET BALLOT.
- 50+1 was achieved as per the evidence in court.
- Uhuru Kenyatta got 25% in 39 counties.
- What circumstances can the election be invalidated.
- Elections act place is subordinate to the Constitution.
- The Maina Kiai Verdict established several principles
- The polling station is the first place where the presidential election is held.
- Form 34A is the primary document for the election and not the mirror images of the same, any contest must go back to the primary document.
- There were a total of 27 cases litigated before election.
- Elections were held as per Constitution on the right date. No allegation has been made that any Kenyan was denied a chance to vote.
- Elections were held in a fairly peaceful manner.
- Observers had a recurring theme in their reports, that the election was free, fair and credible.
- All chief agents had access to documents.
- There was no mathematical pre-determined way of voting in the contest and there cannot be agents agreed to the tally at the polling stations.
- We cannot have a contest on transmission; it must be on Form 34A. Transmission is a conveyor; it is a transmitter NOT an originator.
- Several infractions were cited.
- On numerical category, he showed differences on what was on the form and what was transmitted.
- On the non-numerical category, there were allegations on faint forms, or agents did not sign.
- Raila receives 822 votes from all discrepancies.
- Uhuru tally would reduce by 974 votes.
- The end result is therefore totally insignificant.
- The first transmission of results was 5.07pm and was from Narok Prison which had only 10 votes. Raila got 4 votes and Uhuru 6 votes.
- The Electoral process is not surgery in a theatre room.
- On rejected votes, there should be a fair uniformity of the court decisions so that our political players do not all the time seek a departure from the decisions of the court.
- Total number of polling station was 40,883.
- If there is a legitimate complaint why not go to the original Form 34A, do a National Tally and come up with a result.
- Ungazetted Polling Stations – There was only one polling station that came into being because of a ruling of the high court.The rest were gazetted on different dates as found in the affidavit.
- The single station on its own cannot be a basis for invalidating an election.
- On Makueni chiefs, Interior PS Karanja Kibicho says that the two chiefs in question were campaigning for NASA as per intelligence.
- Raila got 301k and Uhuru got 27k in Makueni.
- No chief was terminated from employment.
- In Makueni Sub County, Thadeus Makumbi campaigned for his brother who ran for a MCA seat under NASA in Wote ward as well as Raila Odinga.
- In Kibwezi East Sub County, Nicholas Mwanga (Acting Chief Thange Sub-Location) campaigned for Jessica Mbalu who ran for MP Kibwezi East under NASA.
- John Ndiku, Chief, Kathekani Location was engaged in campaigning for Raila Odinga and NASA candidates.
- Insignificant errors cannot be cured by invalidating a presidential election.
- The range of results for all elections is close and similar.
- There is no legal obligation that a voter must vote in all 6 elections.
- Raila and Kalonzo led calls for removal of IEBC Commissioners and it was granted.
- Petitioners then followed with litigation in an industrial scale.
- Article 38 (2) (a) is the only way to invalidate a presidential election.
- Can the court depart from its constitutional interpretation? In 99%, it is only the transgression of the voter that can cause the invalidation of a presidential election; in 1% the IEBC.
- This petition is a piece of science fiction.
- It is the election that brought the petition. It is the act of exercising the sovereign choice that brings this petition. It is not about the winning and losing, it is about the votes cast. For the court to reverse that will of the people, it must find reasons why the vote does not count.
- It is all about the VOTERS exercising their political rights.
- This is not a dispute between two big political players. It is not a result dispute but a rights dispute
- Raila vs IEBC 2013 was unfairly attacked in public and it is good law and has been quoted in many places and jurisdictions.
- The court can only invalidate an election if it can be shown that people who were not entitled to vote, indeed voted.
- Even without any defence, this petition will still be dismissed. It is a science fiction that will only interest directors and actors in Hollywood.
- The best evidence in this petition was given by the lawyers. The issue of forms not being originals is not in any affidavit
- INTERESTED PARTY PROF MICHAEL WAINAINA
- This election was conducted within the law.
- Where is the evidence of hacking? When and by who?
- Where is the evidence of intimidation that can provide for invalidation of election?
- The arena for the contest is not the Supreme Court. It is the polling station.
- Not even Raila Odinga or Kalonzo Musyoka’s chief agent has tendered any evidence.
- The chief agents of The Petitioners are quiet and swore no affidavit.
- Who manipulated the system? No evidence.
- As an independent Ppresidential candidate, I confirm the election was free and fair.
George Njoroge’s Affidavit
- Raila Odinga and Kalonzo claimed there was hacking into IEBC system and even claimed it was at 12.37pm.
- Despite the claims in press conferences, Raila Odinga and Kalonzo Musyoka do not bring the sensational claims to court.
- Hacking did not happen. Neither Kalonzo or Raila have replied or even denied that position in court.
- Raila Odinga and Kalonzo Musyoka want the Supreme Court to lower the threshold set by the 2013 decision in admitting evidence.
- AMICUS CURIAE
A.G. PROF. GITHU MUIGAI
- The Constitution is not an election statute. It cannot yield an answer to whether an election was properly conducted.
- A prudent lawyer who wants to determine if an election has been properly or improperly conducted will always go to the both the constitution and the existing statues. They must be read harmoniously, together.
- The constitution is not a statute about affidavits or evidence or even process of the Supreme Court. There exists separate statute for affidavits, evidence and the Supreme Court.
- You cannot interpret a law, by ignoring it. The spirit of the constitution is the last refuge of a poor jurist
- The heavy investment many of us made in the delivery of the new constitution means we must respect it.
- Being invited to the spirit of the constitution is being invited into a political space and the court should not agree.
- The court needs to read the constitution and the election law as one not as two separate laws.
- The constitution as the Bible says, begat the election law and the election law begat the election rules.
- Elections are not about politicians or political parties, they are about voters. We must keep the voter in mind. It his will. It is his sovereignty. It is about the voter.
- The election infrastructure in Kenya improved between 2013 and 2017 and it happened to create greater transparency. The process was co-chaired by Senator Orengo and Governor Kiraitu.
- It is false, unproductive and unhelpful to say we have an electronic voting system. We have manual system with electronic interventions.
- The jurisdiction for elections was radically changed in the Maina Kiai decision, the role of the chair of IEBC, for instance, was heavily reduced.
- It is NOT true that we cannot impeach a winner of a presidential election. It is possible but only if we appreciate the different types of petitions that can be tabled.
- AMICUS CURIAE
- Parliament has made the law and the rules to follow.
- The test to void a presidential election is what the Indian court has called the little man’s test – This is the man with a pencil in a polling station who makes his/her choice. It is about that little man.
- Democracy and fair elections are inseparable twins.
- There must be a good reason to depart from a previous decision. The court must go with the maxim that is justice’s favourite daughter; the truth.
And before the judges retreated to prepare their ruling, a report on the scrutiny of IEBC severs, and Forms 34 A, B & C – which had earlier been ordered by the court – was presented.
Below is a summary of the submissions on the report by the lawyers of the parties involved:
- JAMES ORENGO (FOR THE PETITIONERS)
- These elections were shambolic.
- No security features of watermark and serialization.
- Form 34C does not bear security features.
- More than 56 Form 34Bs did not have security features.
- There are forms without serial numbers 31.
- There are 32 forms not signed by agents.
- There are 189 forms without handover section not signed.
- There was no full compliance with the court orders by IEBC.
- Unauthorised access to servers was granted.
- 90 constituencies and 5 million voters were affected by the discrepancies.
- You cannot ignore the report and the statutory forms.
- IEBC’s chairman account was used to delete information.
- PAUL MUITE (FOR THE FIRST AND THE SECOND RESPONDENT)
- The report says the opposite of what Hon.Orengo is saying.
- At 6pm, the petitioners introduced a new checklist after skipping an earlier meeting.
- At the point that Chebukati announced results, he had received all the Form 34Bs.
- Regulations say the requirement is for forms to be signed.
- There is no requirement for security features on forms.
- Only 5 forms were not signed by Returning Officers; a majority were.
- Nyali forms were signed by ODM and Jubilee.
- No one is challenging the numbers; the votes.
- No one says has said that the forms on the forms were wrong
- The sovereign will of the people was captured.
- No one has tabled any evidence to prove rigging.
- The petition deserves to be dismissed with costs.
FRED NGATIA (FOR THE THIRD RESPONDENT)
Annexure 4 scrutiny of Form 34Bs
- Kisauni – All agents signed. Copy signed. Returning Officer; Raila 56k, Uhuru 17k votes.
- Nyali – ODM and Jubilee agents signed. Returning Officer; Raila 41k, Uhuru 19K votes.
- Likoni – 8 agents signed. Returning Officer; Raila 38k, Uhuru 10k votes.
- 291 34Bs have been signed by Returning Officers and agents.
- That demonstrates that the fallacy that many 34Bs were missing is a fallacy.
- All 34As were used to generate 34Bs.
- Sensational comment that IEBC went to correct the documents cannot be true because there are still errors.
- The report confirms that there are no numerical differences between Form 34As and 34Bs.
- There is no allegation that the vote announced at the polling station differs from the the one on 34A.
- Forms 34A and 34B correctly reflect the votes cast.
- The only Form 34Bs that appear to have a problem is in the areas where Raila Odinga got more votes.
- Report and notes differ.
- Petitioner wanted admin rights to servers which were beyond the orders of the courts.
- Petitioner asked for more time, not the 3rd respondent.
- The totality of this exercise will confirm that all Form 34As have been accounted for and once accounted for, they were captured in the Form 34B and that was used for the compilation of 34c and in those circumstances; the result was not changed.
THE JUDGES HAVE GONE ON RECESS TO PREPARE A RULING SET TO BE DELIVERED ON FRIDAY 1ST SEPTEMBER 2017.Top of Form