How inconsistent result forms shored up Raila’s petition

Thursday September 21 2017

Opposition leaders Raila Odinga and Kalonzo Musyoka with Busia Senator Amos Wako in court, on September 20, 2017, when the Supreme Court judges delivered a detailed ruling on the nullified presidential election. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

Opposition leaders Raila Odinga and Kalonzo Musyoka with Busia Senator Amos Wako in court, on September 20, 2017, when the Supreme Court judges delivered a detailed ruling on the nullified presidential election. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

By MACHARIA GAITHO
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The September 1 Supreme Court annulment of the presidential election was no doubt a major surprise to most, including petitioner and losing candidate Raila Odinga and respondents President Uhuru Kenyatta, the Independent Electoral and Boundaries Commission and its chairman Wafula Chebukati.

Many observers would have expected the 2013 Supreme Court bench led by liberal activist Willy Mutunga more likely to make such a radical ruling than the current court by his successor as Chief Justice, conservative judiciary insider David Maraga.

The bombshell delivered on September 1 was history and irreversible by the time of delivery on Wednesday of the full majority ruling endorsed by Chief Justice David Maraga, Deputy CJ Philomena Mwilu and Judges Smokin Wanjala and Isaac Lenaola.

The ruling, read in abridged version, to be followed by circulation of the full document, was intended simply to provide the detailed reasoning behind the historic annulment of President Kenyatta’s election victory.

The reasons provided might well make one recall the final day of the petition when the lawyers  representing all sides made their closing remarks.

CONFIDENCE

In his closing remarks, Mr Odinga’s lead counsel James Orengo came across as almost giddy with confidence that he had clinched the case.

 He reminded those who had commented that the petition case had revealed no smoking gun that scrutiny of the IEBC election result forms, the electronic transmission system and the computer system server indeed revealed the smoking gun.

He contended that no one who had seen the evidence could come up with any other conclusion but that the entire election was a monumental fraud by which the declaration of President Kenyatta as the election winner could not stand.

If Mr Orengo seemed beyond himself with confidence, his adversaries on the other side, Mr Fred Ngatia and Mr Ahmednasir Abdullahi representing President Kenyatta; Mr Paul Muite and Mr Paul Nyamodi for the IEBC, and Mr PLO Lumumba and Mr Kamau Karori for Mr Chebukati were almost timid by comparison.

They all seemed hesitant and unsure in their closing remarks. Some of them had vigorously opposed the application for scrutiny of the result declaration forms 34A from the polling stations and 34B from the constituency tallying centres, as well as “opening” of the IEBC server. But, after the exercise was concluded, it was as if what was revealed left them slightly shell shocked.

CONCESSION SPEECH

One of the last aggressive and methodical courtroom lawyers around, Mr Ngatia’s closing statements had sounded almost like a concession speech.

Like his colleagues on the respondent side, he was essentially admitting that scrutiny of the results forms and IEBC computer systems confirmed some of the allegations raised in the petition but argued that any anomalies were simple clerical errors and in any case had no impact on the actual recorded vote count which showed President Kenyatta as a clear winner.

The majority verdict read in turns on Wednesday by Justice Lenaola, Justice Mwilu and finally Justice Maraga, differed with the respondents on the impact and severity  of the “errors.”

What Mr Ahmednasir had dismissed as a “fishing expedition” by a petition that had no solid evidence was actually the clincher.

AFFIDAVITS

The scrutiny ordered by the court served to add weight to petition claims previously presented in various affidavits that there was likely infiltration of the IEBC computer system and manipulation of results data.

It was also seen that various anomalies and discrepancies on the original and scanned Forms 34A and 34B indicated industrial-scale tampering with the vote count recording, tallying and electronic transmission systems, including introduction of forged documents.

The judges also found highly suspicious Mr Chebukati’s declaration of the presidential election results on August 11 yet up to four days later IEBC chief executive Ezra Chiloba could not produce the election result forms from which the outcome was computed.

When the forms were finally produced, many were riddled with anomalies that raised questions over whether they were the original documents or forgeries generated later to validate a suspect outcome.

All this may have lent credence to Mr Odinga’s claims that the results that were being displayed on the IEBC portal and re-broadcast on television were not coming from the raw data uploaded directly by Returning Officers but from an external source.