IEBC files 54,000 documents in Nasa case

Some of the documents filed as evidence by IEBC at the Supreme Court on August 22, 2017. PHOTO | RICHARD MUNGUTI | NATION MEDIA GROUP

What you need to know:

  • IEBC chief executive officer Ezra Chiloba insisted that the material was open to verification.
  • Lawyers for the parties in the case have been guarded, leaving it to the politicians to answer each other.

The electoral commission has denied existence of discrepancies in forms used to compile the disputed presidential election, a claim that is at the core of the opposition alliance Nasa’s petition.

The Independent Electoral and Boundaries Commission (IEBC) however said it will produce the electronic equipment it used to identify voters, transmit the results to the national tallying centre in Nairobi and take images of the first forms filled at the polling stations during the August 8 General Election only on the orders of the Supreme Court.

PETITION
As he led the team that handed over to the court 54,000 pages of the documents and soft copy, 14,000 of which have been disputed by the National Super Alliance, IEBC chief executive officer Ezra Chiloba insisted that the material was open to verification.

IEBC’s lawyers are expected to file their responses to the petition by Nasa presidential candidate Raila Odinga and running mate Kalonzo Musyoka by Thursday.

“We’ve brought all the forms, the original forms that were used in the elections in as far as declaration of results was concerned, and all the forms are here,” Mr Chiloba said.

“If there is a need for scrutiny, we’ve also published them on the public portal and we invite you to go and look at them.

“They have been brought from all over the country, the 40,883 polling stations. So, when we talk about the availability of the Forms 34A, we actually mean these ones, and all the forms are available.”

JUDGES
The IEBC also handed over scanned copies of the forms in a one-terabyte hard disk.

The requirement to hand over all the documents used to process the result of the presidential election was inserted in the Supreme Court Act last year at the behest of the joint select committee of Parliament that negotiated the removal of the previous commissioners and also overhauled electoral laws.

Going by Nasa’s claims and the insistence by the IEBC, veracity of the documents is likely to become one of the main matters to be decided by the seven judges.

The majority of Nasa’s allegations regarding the documents are contained in an affidavit sworn by Dr Nyangasi Oduwo, a medical doctor and economic advisor to Mombasa Governor Ali Hassan Joho, who says he scrutinised 25,000 of the Forms 34A posted by the commission on its website.

DISCREPANCY
Dr Oduwo has a post-graduate diploma in research methods, a master’s degree in project management and planning and a second master’s in economic policy and analysis.

The expert swore two affidavits detailing the alleged discrepancies in the forms filled at polling stations after the counting of ballots cast in the presidential election.

He claims that, after looking through the forms (he initially says he looked at 5,000), he found grave anomalies in 14,078 of them.

He cited forms that did not bear the official IEBC stamp or were not signed by the presiding officers and their deputies, showed results that did not add up mathematically, did not have the signatures or names of party agents or presiding officers had signed for more than one station.

IEBC officials led by CEO Ezra Chiloba (left) filing documents at the Supreme Court in a case filed by Nasa to challenge the presidential elections results. PHOTO | RICHARD MUNGUTI | NATION MEDIA GROUP

MALPRACTICE
There were also instances where the forms were signed by ungazetted ‘presiding officers’, were from ungazetted ‘polling stations’ or were illegible.

Among the forms whose veracity has been called into question — save for those in court — were from Embakasi, where there reportedly was an attempt at breaking the seals last weekend.

Mr Chiloba explained that the returning officer had been in hospital for two days and had instructed the deputy to retrieve the forms.

“When they got to the warehouse, they did not follow the procedure properly and, by mistake, they ended up opening the ballot boxes,” Mr Chiloba said, adding that all documents with respect to the 16 boxes were intact.
RESULTS
In another affidavit, Ms Olga Karani, Mr Odinga’s deputy chief agent in the poll, said IEBC had not provided any Form 34B — the document required to declare presidential election results at the constituency — by the time its chairman Wafula Chebukati named President Uhuru Kenyatta as the winner.

“It is, accordingly, not possible to independently and accurately confirm that the prescribed forms that were manually transmitted to the national tallying centre or otherwise deposited in the IEBC website were, in fact, the forms that were filled in by presiding officers and returning officers in the presence of agents as by law required,” Ms Karani said in her affidavit.

Ms Karani headed a team at the Bomas of Kenya that was scrutinising the forms and which Mr Chiloba said at the time was getting copies of Forms 34B as they were received from the constituency returning officers.

DEADLINE
Lawyers for the parties in the case have been guarded, leaving it to the politicians to answer each other.

On Tuesday, IEBC lawyer Paul Nyamodi said the decision on whether the actual gadgets used to transmit the results would be provided was the court’s.

“If we are ordered to produce them, we will act accordingly,” Mr Paul Nyamodi said.

Regarding the case, he said: “Let us wait and see how it goes.”

The President’s team was reportedly putting final touches to its responses for filing by the Thursday deadline.

Jubilee Party, which sponsored President Kenyatta’s candidature, on Monday declared that it will not join the case as an interested party, instead choosing to focus on his responses.

JUBILEE PARTY
Led by senior counsel Fred Ngatia, the team has been poring over the Nasa evidence and analysing IEBC documents in a bid to convince the Bench that President Kenyatta was, indeed, the validly elected President.

“We are ready. Our lawyers are well briefed and are putting final touches to our responses, which we will, definitely, file on time,” Jubilee Party secretary-general Raphael Tuju said.

Tharaka-Nithi Senator Kithure Kindiki, who is part of the President’s legal team, said: “We are on course. And we are ready for the case. There is nothing to worry about.”

Reports by Sam Kiplagat, Patrick Lang’at and John Ngirachu