IEBC did not comply with polls laws, say Nasa court papers

In the 24-page outline filed on Friday night by National Super Alliance (Nasa) candidate Raila Odinga and his running-mate Kalonzo Musyoka, the petitioners assert that the Independent Electoral and Boundaries Commission (IEBC) conducted the presidential election so badly that it failed to comply with the governing principles established under the Constitution and the election laws.   

They say there was massive, systemic, systematic and deliberate non-compliance with the Constitution.

The IEBC, its chair, and Jubilee Party’s President Uhuru Kenyatta are the three co-respondents.

In a similar case before the Supreme Court in 2013, Mr Odinga was the sole petitioner without his running-mate Mr Musyoka.  

The petition accuses the IEBC of abdicating its role and duty to exercise, protect and safeguard the sovereign will of the people of Kenya through the vote.

According to the petition, the August 8 presidential election was so badly conducted and marred by irregularities that it does not matter who won or was declared the winner, and that instead of giving effect to the sovereign will of the Kenyan people, the IEBC “delivered preconceived and predetermined computer generated leaders.”

RESULTS

The petition attacks the relaying of results from polling stations to the constituency and to the national tallying centre (NTC) and from the constituency tallying centres to the NTC, saying that this process was not accurate, verifiable or secure.

The petition avers that the data and information recorded in Forms 34A at the individual polling stations was not accurately and transparently entered into the Kenya Integrated Elections Management System (KIEMS) at the individual polling stations; and that in more than 10,000 polling stations, the data entered into the KIEMS was not consistent with the information and data from the respective Forms 34A.

The petition says that at the time of declaration of the result, the IEBC did not have 187 Forms 34B nor did it publicly display these for verification as required.

The declaration of the final result was, therefore, invalid and illegal, the petitioners say.

The petition questions the neutrality of the IEBC, and asserts that in numerous instances, the elections body manipulated and distorted the votes cast and counted in favour of Mr Kenyatta, thereby affecting the final results tallied.

FORMS 34B

The petition questions the verifiability of the results and the returns made by the IEBC, saying that these do not comply with the law.

It says the information in Forms 34A is not consistent with the information recorded in Forms 34B and figures do not add up.

The figures in the Forms 34B are not what was and continues to be publicly relayed and transmitted on the IEBC portal.

According to the petition, the IEBC illegally and fraudulently established secret and polling stations from where results were added to the final tally, thereby undermining the integrity of the presidential election.

The petition also claims that a significant number of Forms 34B were signed by persons not gazetted as returning officers and not accredited as such by the IEBC, thus rendering those results invalid.

COMPLAINTS RAISED

Because the complaints raised in the petition are generic, much will depend on the strength of the supporting evidence which is contained in affidavits and other documents that were filed as part of the petition.

A key question is the likely political impact of the decision by Mr Odinga and Mr Musyoka to go to court. During the campaigns leading to the elections, Mr Odinga in particular had maintained that the Supreme Court would not be an option if he was adjudged to have lost the 2017 election.

In 2013, Mr Odinga had filed a contest against the victory of Uhuru Kenyatta. In a decision that has evoked significant criticism, the Supreme Court, however, rejected Mr Odinga’s petition.

His reluctance to go back to court has to do with criticism directed at the court over the perception that it lacked independence in the manner it adjudicated over the 2013 petition and was likely to act in a similar manner if another case was to be filed before the court.

One of the effects of the decision to go to court is that it has lifted an atmosphere of tension that had descended on the country when the Nasa coalition rejected the results, while leaving the country waiting as to what would be its next move.

SUPREME COURT

Going to court provides a platform for Nasa to assert its own narrative over what happened in the elections — and in the end question the credibility of the outcome no matter what the Supreme Court judges decide.

Following the results, Jubilee and the IEBC have sought to minimise any shortcomings there might have been during the elections while also urging that the country must move on and get back to work.

Also, going to court will hold the political space for Nasa and allow the coalition to think through what its next move might be beyond the election petition.

If Nasa makes a strong case in court, this will have a galvanising effect on its support base and is capable of maintaining internal cohesion, based on a shared grievance.

For the Supreme Court, the opportunity to hear another election petition after the clear mistakes made during the last one is a second chance for the court to redeem itself.

POLITICAL RAMIFICATIONS

The Nasa statement announcing the decision to go to court made this point.

Ultimately, the decision of the Supreme Court will not be based on the evidence alone.

Whether or not the judges admit it, they will also look at the political ramifications of the many difficult decisions that are available to them.

Judges would be more inclined towards maintaining the status quo than upsetting it. Strong evidence is one way of making them upset the status quo.

Convening a sense of the countervailing political consequences is another.