Issues that judges will have to decide in Raila case

This week, former Prime Minister Raila Odinga sat at the back benches of the Supreme Court as his lawyers battled to convince the seven-judge bench that his election was stolen.

By his side was his running mate Kalonzo Musyoka and Bungoma Senator Moses Wetang’ula – and as the session ended on Tuesday, they trooped out together.

On Friday, he will know the fate of his petition – a game changer in his political career.

During his 2013 petition, Mr Odinga had settled for George Oraro, regarded as one of the top ranked lawyers in the country and Ochieng’ Oduol.

This time, he went for a political insider James Orengo, to push his case. Mr Orengo was backed by  Otiende Amollo, Paul Mwangi and Pheroze Nowrojee, among others.

PETITION

In his petition, Mr Odinga  has accused the Independent Electoral  and  Boundaries Commission (IEBC) of “massive, systemic, systematic and deliberate non-compliance” with the Constitution, an issue that was the heart of his petition.  He also told the court that the IEBC did not comply with the Constitution and other regulations while carrying out the August 8 exercise.

With timelines set by the Constitution, the presidential petition is fast-paced.

Mr Odinga’s lawyers were to demonstrate to the court how the IEBC “abdicated its  role  and duty  to  exercise,  protect  and  safeguard  the sovereign  will  of the people” by failing to carry out a free and fair election while also getting the relevant information to back their case from IEBC.

Mr Odinga told the court to put meaning to the words in the Constitution and other election statutes:   “Written laws,” he said, “must mean something and be given their legal effect. 

LEGAL PROVISION

Otherwise,  there  is  no  point  of  having  legal provisions  if  they  will not  be  obeyed. Similarly, there  is  no  point  of holding  elections  if  the  law,  procedure  and  regulations  to  govern  their conduct will not be respected and adhered to.”

It is an issue that the judges will have to examine and various lawyers told the court that it had a duty to form a strong jurisprudence that could guide such petitions. 

Mr Odinga was arguing that the election was “so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the presidential election.”

Mr Odinga wanted the court to relook at the issue of rejected votes, which accounted for 2.6 per cent of the total votes, which he said had an effect on the final result.

In the 2013 petition, the court held that spoilt votes cannot be counted in computing the 50-plus 1 constitutional threshold required to determine the winner.

TRANSMISSION OF RESULTS

But his main bone of contention is on the relay and transmission of results, which he says “compromised and affected the requirements of free and fair elections.”

It is now upon the court to check whether this was strongly canvassed with evidence. Mr Odinga had claimed in his petition that data recorded in Forms 34A at the individual polling stations was different from that entered into the Kiems kit.

This is what informed the court’s decision to order a scrutiny of the IEBC system and determine whether there was any tampering or hacking.

The feedback is contained in a report compiled by the registrar of the High Court and handed over to the judges on Tuesday night. When Mr Odinga’s lawyers sought an order to have the IEBC servers accessed for scrutiny, commission lawyer Paul Muite surprised Uhuru Kenyatta’s counsel Fred Ngatia to an extent that he had to seek adjournment.

Mr Odinga had also claimed that results from 10,000 polling stations did not comply with the mandatory requirement and that results sent to the national tallying centre from these stations “were not accompanied by Forms 34A” and that the data that was displayed on the public portal was not consistent with what was appearing in the respective entries at the polling stations.

FORMS 34A

The Nasa coalition, according to lawyer Pheroze Nowrojee, had written to IEBC seeking the forms but they only got some and a letter saying the commission was “unable” to provide Forms 34 A.

“How then did they get to the results,” posed Nowrojee. “Why were 11,000 Form 34As missing six days after the elections?”

As a result, Mr Odinga told the court that the figures did not add up and this again informed the court’s decision to have a look at the forms 34B.

Mr Odinga had averred in his petition that “results in a significant number of Forms 34B are not accurate, verifiable and internally consistent. The additions and figures do not add up.”

In his final submission, Orengo said the registrar’s report confirmed the election was “shambolic”.

INCONSISTENCIES

It is now upon the court to check whether these inconsistencies were “clerical” – as asserted by the respondents – or were deliberate. Mr Odinga told the court  that the “inaccuracies and inconsistencies affect and account for at least 5 million votes”.

It was Mr Odinga’s case that the votes were “manipulated, engineered and distorted” – in what his lawyer Nowrojee termed was akin to “Bermuda Triangle” where he said ships disappeared without trace.

Whether any discrepancies have been sighted in the scrutiny of Forms 34A will be a subject that the court will deal with.

The court will now have to decide whether the non-compliance, irregularities and improprieties cited by Mr Odinga  affected the result of the presidential elections or fall under what IEBC lawyer PLO Lumumba dismissed as de minimis non curat lex, meaning: the law does not concern itself with trifles.