Kenya’s opposition National Super Alliance Monday evening concluded that nearly a third of the votes cast in the presidential election could not be accounted for as the forms in which the results were had discrepancies.
But the electoral commission IEBC asked the judges not to nullify the results that ended with the declaration of President Uhuru Kenyatta re-elected purely on the basis of suspicions and allegations.
President Kenyatta’s lawyers on the other hand received the reports well and concluded that they fortify their case that their client was validly elected in one of the most-watched elections in recent Kenyan history.
What the judges will make of the documents, arguments and counter-arguments made in the two days of hearings will be known on Friday, Chief Justice David Maraga said.
After a two-hour delay for the reports of the scrutiny of the forms and the servers overseen by the Supreme Court registrar, the judges walked into the courtroom at 8.55pm on Tuesday.
The two reports had by then been submitted.
Mr James Orengo, Raila Odinga’s lead lawyer, said the errors reported were so great that the judges have no option but to nullify the election as their claims had been proven.
From his reading of the report prepared by the registrar, he said, more than 56 Forms 34B had no watermarks, five had not been signed by constituency returning officers, two were not stamped, 31 had no serial numbers, 32 were not signed by agents, 189 had no handover notes and 103 had no handover sections.
Mr Orengo said that Form 34C, the one filled at the National Tallying Centre and read out by IEBC chairman Wafula Chebukati, also had no security features.
“There is no difference between what we found and what the registrar has found.
“Nearly five million votes were affected by discrepancies in 90 forms,” Mr Orengo said.
He added: “Our case has been proved: that forgery, trickery and deception were used in various ways in the elections.
“Some of the forms were not standardised, and prepared according to the agreement between the commission and the printer.”
Mr Orengo described the two reports filed by the registrar as “two smoking guns”, making a reference to the demands by the IEBC and President Kenyatta’s lawyers that Nasa produce the smoking gun to support his assertions.
On the scrutiny of the servers, he said: “From what we have gleaned from what was granted, even the account of the chairman was being used to delete forms. There was unauthorised access by individuals.”
Mr Orengo however ran into trouble as it became apparent that he had started reading a different report after being given an additional five minutes, with IEBC lead lawyer Paul Muite calling him out and Chief Justice David Maraga stepping in.
“We did not give parties liberty to file their own reports,” Justice Maraga said, as he told Mr Orengo, “In that case take back your report.”
But according to Mr Muite, the errors were immaterial.
“You cannot be asked to nullify a presidential election on the basis of allegations, on the basis of suspicions.
“Nobody is challenging the numbers. We are being told they did not have security features,” he added.
Mr Muite referred to what he said were complaints by the registrar about the conduct of the petitioner, saying that their representatives showed up at 6.30pm and when they came in, introduced new checklist, even after being summoned by the Registrar at 5pm.
Mr Muite said that at the time Mr Chebukati announced the results, he had received all the scanned copies of forms 34 B.
He argued that regarding the said lack of security features on the forms, the requirement is that they should be signed.
“There is no requirement in the regulations for security features. The regulations are clear on what should be contained in the forms.
“Only five forms were not signed but they contain the security features. But the security features are not a requirement,” he added.
Lawyer Fred Ngatia for President Uhuru Kenyatta said his interpretation of the report was that: “This fortifies what we have been saying all along, that this was a fairly credible election.”
He said that despite being granted access to the IEBC servers, Nasa asked for administrator rights, which was against the orders given on Monday.
He described the report as fair given the time available.
“The totality of this exercise would establish that contrary to a spin of missing forms, all the forms are accounted for.
“In those circumstances there would be no ground to annul the election,” he added.
The report by the registrar says that IEBC gave “read-only live access” to the teams at 11am on Tuesday.
“Partial live access was provided at about 3.15pm but with no copy capability. Access to system/database logs was not provided,” it says.
IEBC indicated it had challenges complying with the read-only access to do with set-up of the Virtual Private Network tunnel to the server, connectivity and security protection measures that needed to be upheld.
“Partial access only became available after the meeting had been called to close way past 5.30pm, notably the IEBC had indicated that if granted more time they would still have been in a position to provide more comprehensive access,”’ the report concluded.