Top electoral commission officials are on the spot for bungling the August 8 presidential poll.
According to the detailed ruling of the Supreme Court delivered on Wednesday, Independent Electoral and Boundaries Commission Chairman Wafula Chebukati, Chief Executive Ezra Chiloba, ICT Director James Muhati and Voter Registration and Electoral Operations chief Immaculate Kassait made untrue assertions in their affidavits in regard to the forms used to declare Mr Uhuru Kenyatta the winner, transmission of results and security features in the result forms.
The judges said the officials were in contempt of court for disregarding an order of access to the commission’s servers.
Justices David Maraga, Philomena Mwilu, Smokin Wanjala and Isaac Lenaola agreed with National Super Alliance principals Raila Odinga and Kalonzo Musyoka’s opinion that “IEBC’s conduct of the presidential election was flawed and/or incompatible with the electoral values and principles of the Constitution, including transparency, accountability, security, verifiability and efficiency.”
Nasa in its petition had argued that failures by IEBC were deliberate, systemic and systematic.
According to the majority judgment, Mr Chebukati, as the national returning officer for the presidential election failed to explain why results were not transmitted in the stipulated manner.
Mr Chebukati was also found to have declared results he purported to have been final yet not all Forms 34A and B had been received at the National Tallying Centre. The ones that were eventually submitted “had dubious authenticity”.
The court said Mr Chiloba was on record admitting that as at August 17, nine days after the vote, the commission was yet to provide all the Forms 34A and 34B to the petitioners.
The judgment described the obscurity surrounding Forms 34A as a “mysterious puzzle”.
Mr Chebukati was criticised for his contradictory description of the vote figures shown on TV screens.
In his affidavit, the IEBC chairman said the “statistics did not constitute the results of the presidential election”.
However, in court, IEBC lawyer Paul Nyamodi referred to the figures as data “which was previously referred to as provisional results”.
In the judges’ determination, the contradictory description of the figures raised serious questions.
“Bearing in mind that IEBC had the custody of the record of elections, the burden of proof shifted to it to show that it complied with the law in the conduct of the presidential election, especially on the transmission of results. It failed to discharge that burden,” the judges said.
Mr Chiloba and Ms Kassait were put on the spot over lack of security features in the results declaration forms as had been defined in the contract with the United Arab Emirates-based Al Ghurair Printing & Publishing company.
In her replying affidavit, Ms Kassait said the “commission developed standards for its electoral goods before their procurement”.
“The standards included specific security features for every ballot paper and statutory form in order to prevent duplication, misuse, piracy, fraud, counterfeiting and to improve controls. The ballot papers and...forms...contained these features,” she said.
However, the majority of the judges found Ms Kassait’s pronouncements to have been untrue following a scrutiny of the forms supervised by Supreme Court Registrar Esther Nyaiyaki.
“Though there is no specific provision to have forms have security marks, there is no plausible explanation as to why they lacked them. There was no reasonable explanation why some forms had security features while others did not,” the judges held, putting the responses by the commission, Mr Chebukati, Mr Chiloba and Ms Kassait into question.
Mr Muhati was accused of failing to ensure scanned copies of the forms and text results were transmitted simultaneously.
IEBC’s claim that 11,000 polling stations were out of 3G and 4G range was also put to question, with the ICT directorate blamed for failing to ensure that a complementary system was in place for simultaneous transmission of results.
Mr Chebukati, Mr Chiloba and Mr Muhati, the judges held, strenuously objected the petitioners’ access to its servers claiming such an access could compromise the security of the data, a claim court-appointed experts said had no standing.