The evening of Tuesday, August 29, was not a good one for the lawyers who represented the Independent Electoral and Boundaries Commission in the petition at the Supreme Court.
The report by the Supreme Court Registrar Esther Nyaiyaki had just been submitted to the judges and a copy filed at the registry. The parties – the petitioners, the IEBC and President Uhuru Kenyatta – were given 10 minutes each to comment on it.
Giddy with excitement, his hands trembling as he spoke, James Orengo, one of Raila Odinga’s lead lawyers, went first, with oomph and confidence as he stated that the reports on the access to the servers and the scrutiny of the result forms were “two smoking guns.”
Mr Orengo nearly caught everyone off-guard when he launched into discussing the contents of a report generated by his team from the server logs handed over to them by the IEBC. He was stopped and Chief Justice David Maraga ordered the clerk to hand the report back to him.
While stopping Mr Orengo’s attempt to irregularly file the report might have looked like the decisive moment, the actual decisive moment was the point when the forms were scrutinised and the report written and filed.
The 13-page report with annexes running into 401 pages would turn out to be the turning point for the case and a major player in the decision on September 1 that made for one of the major events of 2017.
Among the report’s damning contents were that returning officers had not signed Forms 34B in Kisauni, Nyali and Likoni, and that and Form 34B for Nyali did not have a serial number. The sum of these was that the forms could have been fake.
As they read it in court, the IEBC’s lawyers realised some of the allegations were wrong.
“When I was there, if you saw the video, you will see me and Issa (Mansur) running from the back of the court to KK (Kamau Karori) before (Paul) Muite sat down, because some of the information that was coming from the report was inaccurate as relates to the Forms 34Bs because that is the thing I could remember,” said Mahat Somane, one of those on the IEBC team.
Mr Somane was on call with Immaculate Kassait, the director of voter registration and logistics at the IEBC, and she was sending him copies of the forms, showing that they had actually been signed.
With hindsight, the lawyers think the court should have given all parties more time to submit on the report.
“The report runs into several hundred pages and the IEBC was given 10 minutes to read it. Even if you are a robot, there is no way you can be able to read that report and make sense of it in 10 minutes and then you’re supposed to report on it in 15 minutes,” said Kamau Karori, one of IEBC’s lawyers.
The lawyers were of the opinion that all parties should have been given more time to study the report, give it to their clients and then go back to the court to explain their assessment of its contents and in their case, debunk some of its assertions.
But because it was submitted on the last day of the hearings, nobody got a chance to scrutinise it properly before the determination was made.
The team was of the opinion that all the issues raised by Mr Odinga and his running mate Kalonzo Musyoka had been responded to adequately in the affidavit by Ms Kassait.
“Obviously that affidavit could not answer subsequent reports that were prepared by somebody else,” said Mr Karori.
Even as they stress that they respect the court and abide by its decision, the lawyers see the introduction of the registrar’s report as one point where the court’s decision was questionable.
“That had a huge impact on the outcome of the case and the question then would be, ‘Who introduced the evidence? Was it the petitioner or was it the court that introduced it?’ Since it was a registrar who introduced that report, it was not introduced by the petitioner,” said Mr Karori.
The report has since then become a controversial subject in the corridors of the apex court, especially after Justice Njoki Ndung’u said in her dissenting judgment that she had a look at the forms herself and they were okay.
At least two clerks were transferred and research assistants who had been seconded to the judges dropped ahead of the second petition as the investigations continued quietly.
Staff at the Judiciary believe the clerks were targeted because they gave Justice Ndung’u access to the original forms and her subsequent remarks embarrassed the registrar.
The Ethics and Anti-Corruption Commission is also investigating claims that Ms Nyaiyaki doctored the report.
Critics of Ms Nyaiyaki point out that the order by the court was precise and had directed her to give priority to 292 polling stations stated in the affidavit of the National Super Alliance CEO Norman Magaya, 688 other polling stations named in another affidavit by Omar Yussuf and a further 14,078 polling stations contained in the affidavit of Dr Nyangasi Oduwo.
However, Ms Nyaiyaki and her team did a “random scrutiny of 4,299 Forms 34A across five counties” and carried out an analysis of all Forms 34B. Her report should have been on her supervision of the access to the original forms.
While the Ethics and Anti-Corruption’s attempt to question Ms Nyaiyaki and review the materials submitted to the court might have been more publicized, there has been a quiet ongoing investigation by the Directorate of Criminal Investigations. Ms Nyaiyaki did not respond to requests for an interview.
Ezra Chiloba, the chief executive of the IEBC, has been questioned by the investigators.
He told them in a statement seen by the Nation that he reviewed the five constituencies where the registrar said the Forms 34B had not been signed.
“When I went through the said forms, I realised that all the five forms had been signed. This information can also be validated by the certified copies submitted to court,” said Mr Chiloba in his statement.
Part of the commission’s frustration, he said, was that the original documents submitted to the registrar for the scrutiny had not been returned yet the law requires the preservation of election materials for three years.
The Supreme Court’s decision and the surprising inference that because the IEBC did not open its servers it could be assumed that they were hacked informed the decisions made in the run-up to the repeat poll and the contests in the court during the second petition.
The lessons learnt from the experience would be applied in the second petition.
First, Mr Somane was embedded in the IEBC, sitting in at meetings with OT Morpho, interacting with the IT teams and getting immersed in the preparations and absorbing and learning everything there was to learn.
It would result, in court, in his eye-catching delivery as he explained to the judges that all the information sought had been submitted.
He would list the information relating to the technological side: the EVID logs, network logs, Apache server logs, satellite phones distribution lists, mobile network operator sim card and satellite lists, call data records, Kiems GPS showing the time it transmitted, production reports, statutory forms, Kiems distribution lists, IMEI numbers of the Kiems kits, back-end reports, time-out for polling stations, Results Transmission Systems logs, lists of the presiding officers who sent results and when they did so, error reports generated and reports of when polling stations.
In the court, the Chief Justice had folded his arms and leaned back in his seat as Mr Somane launched into the lists and when he had finished, asked: “Are you saying that all the information they are seeking has been provided?”
“It is all in the 40 GB drive,” said Mr Somane.
“So they should go fishing there?” Justice Maraga asked, provoking laughter from the court.
It also helped that the team left lawyers to handle matters that they understood best and had a well-developed interest in. As the team’s “numbers guy” and with an interest in IT, it was thus easy for Mr Somane to talk about the IT side of things in court. He was also in the team that did a re-tally of the results and therefore had interacted with the forms for long.
There were also debates amongst the lawyers on how much information would be given to the court and in the end, those on the side of submitting more than was needed won.
“The way we thought about it is: an election process is very complex and many lawyers or people don’t understand. It’s only when you are taken through...how the process is, how the kits work...so that if someone was to say, for example, that all the Forms 34A are fake, you can look at the Kiems return and see all these voters were identified and the returns can corroborate what is in the forms,” said Mr Karori.
It would also help avoid the sort of sensational claims that could emerge regarding technology, such as the one made in the second case, that 1.6 million voters had been identified using unknown means.