The electoral agency Thursday defended its declared results in the presidential election, while accusing Azimio la Umoja One Kenya Coalition Party candidate Raila Odinga of using forged documents to trick the court into nullifying the exercise held on August 9.
Lawyers representing the Independent Electoral and Boundaries Commission (IEBC) argued that no evidence has been presented to show that the election was rigged, or that the agency’s chairperson, Mr Wafula Chebukati , violated the law.
The IEBC’s legal team maintained that the roles of its chairperson as prescribed in the Constitution is that of a returning officer for presidential elections and that there is no need to involve other commissioners in the tallying and verification of votes.
Mr Odinga and Youth Advocacy Africa have both insisted that all commissioners must be involved in the tallying and verification of votes as per Article 138 of the Constitution.
The agency’s lawyers hold that IEBC does not mean the entire team of commissioners, but only the chairperson and technical staff. Prof Githu Muigai, who is leading the electoral agency’s legal team, said the case was all about facts and numbers, but that petitioners have brought in several other claims to distract the proceedings.
“The petitioners have tried to argue every other point except numbers. The petitions make grave allegations of a criminal nature. All that, without a shred of evidence, especially as it relates to the honourable Chebukati. The vilification of this chairman goes beyond anything we have ever had in this court. It was personal, vindictive. It was unwarranted,” Prof Muigai said.
“When the chairperson declares results for example, he is the commission. He argues that not all processes of the IEBC require a plenary and voting. The sanctimonious, pompous, self-righteous claims by the petitioners are an afterthought and they should be seen as that,” Prof Muigai added.
Tallying and verification
Mr Kamau Karori, another senior counsel on Dr Ruto’s team, added that involving all commissioners in tallying and verification would mean that all seven bosses would be required to carry out the same process for other elective positions.
Mr Karori and Mr Abdikadir Mohamed held that the four commissioners opposed to Mr Chebukati attempted to force a run-off, and that would go against the country’s laws, which state that results at the polling station are final.
“What was the aim of the commissioners when they said they wanted to own the results? Tallying is a mathematical process. What the commissioners wanted to do was stated in affidavits of Chebukati, Guliye and Molu, which is to moderate the results. That is illegal, unconstitutional and completely unacceptable,” Mr Mohamed argued.
In asking the Supreme Court to dismiss petitions challenging the presidential election results, the IEBC’s lawyers said the results it declared and the voter turnout reported are accurate, contrary to claims by Mr Odinga and Busia Senator-elect Okiya Omtatah.
The polls agency argues that Mr Odinga and Mr Omtatah miscalculated the voter turnout and are now trying to convince the court that Dr Ruto did not attain the constitutionally required 50 per cent plus one vote.
Mr Mahat Somane, one of the agency’s lawyers, said that IEBC calculates voter turnout based on individuals identified by voter identification kits, not on the voter register.
He argued that the kits reported 22,005,541 registered voters in 45,994 polling stations.
The lawyer added that 14,239,862 people were identified by the kits. IEBC calculated percentage turnout at 64.767 per cent of the registered voters as reported by the identification kits, Mr Somane said.
IEBC further claims that Mr Odinga’s legal team filed falsified documents and that the agency’s systems were hacked and results transmission forms replaced with manipulated copies.
Mr Somane said the result transmission forms had eight security features. He added that its online portal is “military grade” and would have detected any unauthorised access and manipulation of documents.
The lawyers said claims of voter suppression in the two gubernatorial elections as well as in four constituencies and two electoral wards “fall flat” after comparing the voter turnout in neighbouring counties and constituencies.
The electoral commission postponed gubernatorial elections in Mombasa and Kakamega, as well parliamentary races as in Kacheliba, Pokot South, Rongai and Kitui Rural constituencies and ward polls in Nyaki West and Kwa Njenga in Meru and Nairobi respectively. A comparative analysis of numbers from Kitui County revealed that the voter turnout was nearly the same and the postponement did not affect voting as alleged, Mr Somane said.
He pointed out that the voter turnout for Kitui Rural was 60.29 per cent, whereas in Kitui Central and Mwingi Central was 60.10 per cent and 60.99 per cent, respectively.
“Was there voter suppression? The answer is an emphatic no,” he said.
For Kacheliba constituency, Mr Somane said the turnout was 80.44 per cent, which was almost similar to the turnout in West Pokot at 80.91 per cent and Pokot South at 80.44 per cent. He said the turnout was even higher than in Kapenguria (76.30 per cent) and Sigor (80.91 per cent).
For the Kakamega gubernatorial election, he said the turnout was 60.29 per cent, which, he said, was almost similar to that of Vihiga County at 60.13 per cent but only higher in Bungoma at 63.51 per cent.
He said in Mombasa County, the turnout has been generally low compared to other parts of the country and to the 2017 elections. A table he presented before the seven judges showed that the turnout in Mombasa was 44 per cent while Kilifi’s was 49 per cent.
Regarding variance between senatorial and presidential elections, the lawyer said the votes from the diaspora and from various prisons that participated in the presidential election contributed to the difference.
For the variance between the presidential election and that of woman representative, he said, in Kericho County, the woman representative was elected unopposed. He further said the variance was 9,419, which can be attributed to the stray ballots (placing of ballot papers in the wrong box by voters).
He further explained that there were 92,458 stray ballots in total, affecting all elective positions, and cited Kibra and Makadara constituencies in Nairobi that had 405 and 361 stray ballots, respectively.
In an affidavit in support of the petition, Mr Odinga’s running mate, Ms Martha Karua, had said Mr Chebukati presented different figures in court, which are at variance with the ones he announced at the national tallying centre at the Bomas of Kenya on August 15.
She said the IEBC chairman portrayed himself as dishonest and, therefore, does not deserve to occupy such a high position of trust. She said the figures presented in the response by Mr Chebukati are an afterthought and a belated attempt of trying to justify the illegal results he declared.
She pointed out that, statistically, voter turnout is naturally expected to increase as the commission receives more results on voter turnout from polling stations but, in the results announced by Chebukati, it decreased from 65.4 per cent to 64.4 per cent.
Mr Somane, however, explained that the figures quoted by Ms Karua were false, citing Kirinyaga where she said the difference was only 800 votes.
“In the affidavit, [Ms Karua] alleges a variance of 25,000 between the position of governor and President. The correct position is a variance of 900. It is worth noting that the county is home to two prison polling stations,” he said.
Mr Eric Gumbo said former anti-graft czar John Githongo falsified screen grabs of IEBC’s system logs to claim there was unauthorised access. With Mr Karori, he insisted that only authorised individuals, including Mr Chebukati’s personal assistant Dickson Kwanusu, accessed the system to verify forms and tally votes.
Some IEBC employees mentioned as having made unauthorised access to the system have had to go into hiding to avoid being harmed by a section of the public that believed the claims, Mr Gumbo said.
Reporting by Sam Kiplagat, Brian Wasuna, Joseph Wangui and Richard Munguti
