President-elect William Ruto has told the Supreme Court that it has no powers to declare Azimio leader Raila Odinga the president-elect after tallying the votes and verifying the count as petitioned by his rival.
Mr Ruto says in a response filed yesterday that the prayer sought by Mr Odinga and his running mate Martha Karua on Monday is against the Constitution and Supreme Court rules.
The Kenya Kwanza coalition leader further says it is disingenuous for his main rivals in the August 9 presidential election to ask the court to declare them president-elect and deputy president-elect while claiming the election was not conducted as required by the Constitution and relevant election laws.
“It is disingenuous for the Petitioners to pursue the relief sought in the Petition while claiming that none of the candidates met the 50 per cent plus 1 threshold; and in any event, Section 80 (4) of the Elections Act precludes this Honourable Court from granting prayer (9) of the Petition to the extent that the Petitioners committed election offences,” he says in his court filings.
Mr Odinga has claimed that there is evidence of his votes being suppressed while those of Mr Ruto was increased to rig him out.
Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati declared Mr Ruto the president-elect in an announcement that was preceded by a press conference addressed by four breakaway commissioners, including deputy Juliana Cherera.
Mr Odinga has asked the court to tally, verify the count and declare him and Ms Karua as the duly elected president and deputy president.
Mr Ruto, however, argues the application by Mr Odinga to be declared the winner after tallying and recount “lends credence to the somewhat mean but true barb” to the effect that a presidential election in Kenya can only be free and fair if he (Mr Odinga) is declared the winner.
He has also branded Mr Odinga as a man bent on forcing the winner to share power through what he termed unconventional and extra-constitutional government arrangements, popularly known as "handshake", after every presidential election.
“The second distinct common feature that underlies the first Petitioner's 30-year pattern of strikingly similar acts after every presidential election is political vilification and hounding out of the office of the members of electoral management bodies,” he says.
The Deputy President has also dismissed claims that he intercepted, staged, altered, and dumped more than 11,000 Forms 34A within an incredibly short span of eight minutes.
“The allegation, which is 'copy-pasted' from President Donald Trump's spurious allegations in 2020, incredibly suggests that I achieved the humanly impossible feat of ‘intercepting’, ‘staging’, ‘altering’, and ‘dumping’ on average of 23 Forms 34A per second,” he says.
He has defended his win, stating that the voting, counting and declaration of the result were conducted at polling stations in a free, fair, simple, transparent, accurate and verifiable manner.
He also says the tallying and verification of election results at the national tallying centre at the Bomas of Kenya was based on original Forms 34A and original Forms 34B physically delivered by constituency returning officers.
Mr Ruto says the original Forms 34A from polling stations should easily and quickly confirm that the result of the election declared by Mr Chebukati was free, fair, simple, transparent, accurate and verifiable.
He says that if there were errors and irregularities, which he has denied, they are negligible, inconsequential and incapable of affecting the integrity, credibility, process or result of the election.
“The IEBC tallied, verified and declared the election results in the presence of candidates' agents, accredited observers, foreign dignitaries and other persons lawfully present at the National Tallying Centre,” he says, adding the four IEBC commissioners who disowned the final tally did so after noting that his victory was apparent.
President-elect William Ruto’s lawyers at the Supreme Court sub-registry in Milimani on August 26, 2022, to file his responses to the petition lodged against his election by Azimio leader Raila Odinga and seven others. The lawyers include from left Adrian Kamotho, Prof. Kithure Kindiki, Kioko Kilikumi, and Gladys Shollei.
Photo credit: Jeff Angote | Nation Media Group
Mr Ruto says the tallying and verification of the result was not a single event or exercise confined to Bomas but a three-tier, countrywide process flowing from the 46,229 polling stations, escalating to the 290 constituency tallying centres and eventually to the national tallying centre.
He says upholding Mr Odinga’s argument, on claims that the commissioners could not agree, would mean no presidential election results could ever be declared without consensus, or a majority vote, by IEBC commissioners.
“Upholding the Petitioners' argument (or their understanding of the Maina Kiai case) would create leeway for constitutional crises of unimaginable magnitudes by enabling two or more factions of IEBC commissioners to declare and publish different presidential election results based on their preferred candidates,” he says.
The Kenya Kwanza leader says the entries in Forms 34C in respect of the 27 constituencies, which Mr Odinga claims were not declared, accurately depict the result of the election as recorded in original Forms 34A and original Forms 34B.
“I earnestly believe, given the acclaim and commendation that the IEBC has received from numerous independent actors, that there is no variance or discrepancies between the Forms 34A issued to candidates' agents and those electronically transmitted by Kiems kits and published on the IEBC's public portal. Specifically, there is no variance or discrepancies between Forms 34A issued to my agents and those posted on IEBC's public portal,” he says.
In yet another response filed by United Democratic Alliance (UDA) party secretary Veronica Maina, Kenya Kwanza asserts that the Azimio la Umoja One Kenya fabricated and falsified election result Forms 34A to cast doubts on the presidential elections.
The hard-hitting affidavit filed yesterday at the Supreme Court in defence of Mr Ruto’s election also takes on President Uhuru Kenyatta for allegedly using state officers, resources and apparatus to campaign against the election of his DP Ruto.
Ms Maina says Mr Odinga and Ms Karua have generated bogus Forms 34A, which “they are now using to anchor a false narrative of hacking, digital manipulation and stealing of votes.”
While urging the court to dismiss the presidential election petition filed by Mr Odinga and Ms Karua, Ms Maina dismisses their allegations of manipulation and deliberate tampering of Forms 34A.
“The said forms can only be deemed as having been fabricated and falsified by the Petitioners (Odinga and Karua) to cast doubts on the presidential elections,” she says.
“The Petitioners admit as much in the Petition where they affirm the existence of software that ‘allows one to alter or change contents of a PDF.’ Using the aforesaid software, the Petitioners have generated bogus Forms 34A, which they are now using to anchor a false narrative of hacking, digital manipulation and stealing of votes.”
Ms Maina also defends the IEBC, saying it delivered “a credible presidential election against the backdrop of multiple hardships and adversities calculated to undermine its mandate”.
Ms Maina says the August 9 election was free, fair and met every metric of credible, transparent and verifiable polls.
“The petitioners come to this court seeking relief, which is not due to them, on account of their misuse of state resources and state officers throughout the electoral process, as well as their commission of electoral offences during the campaign period and at the National Tallying Centre.
“In an apparent extension of the illegal Building Bridges Initiative process, this election cycle has been replete with abuse of state power. The court should not view the instant petition in a vacuum void of its political and historical context,” she adds.
According to her, Mr Ruto's election was against all odds, citing the deployment of government officers by President Kenyatta to de-campaign him and harassment of his supporters and agents by police.
“Given the outgoing President’s succession plan for Mr Odinga, he emboldened Cabinet Secretaries to publicly pledge their loyalty to the opposition candidate and to warn voters that they should follow their lead or else.”
Ms Maina alleges that the Head of State deployed government machinery in an effort to ensure Dr Ruto did not get elected. "In the weeks prior to the election, the Head of State implemented a widespread and systematic plan to engage Chiefs and County Commissioners in extortion and voter suppression tactics."
The state apparatus, she claims, “controlled by the Commander-in-Chief, who has doubled up as the chairperson of the Azimio la Umoja One Kenya coalition”, has spared no effort to ensure Mr Ruto is not sworn in as the fifth president of Kenya.
In regard to Mr Odinga and Ms Karua’s request for an order directing the Directorate of Criminal Investigations (DCI) to conduct a forensic audit of electronic devices, Ms Maina is opposed.
She says the DCI is partisan and had been weaponised throughout the campaign period and tallying process.
“The court cannot adjudicate the Petitioner’s request without considering that the same petitioner does not come to court with clean hands. Dr Ruto, through his political party, and the WSR Presidential Campaign Secretariat have consistently raised concerns about the blatant use of state officers on the campaign trail,” she says.
“In this regard, the outgoing President has, with bravado, encouraged state officers and public servants, from Cabinet Secretaries to chiefs, to county commissioners; to engage in intimidation and harassment of supporters of Dr Ruto.”
She narrates that the DCI based on “orders from above” undertook a series of false arrests, confiscation of electronic equipment from people related to the UDA party and the candidate, and illicit surveillance of supporters of Mr Ruto. Targets were politicians, IT personnel, party and secretariat premises and technical staff, says Ms Maina.
She further informs the apex court that Mr Odinga has lost presidential elections five times and has never accepted the outcome.
“He always attempts to forge a position of personal power by fomenting violence or forcing the courts to entertain his complaints, even where they are fanciful or false. The substance and purpose of the current petition is no different."
She also defended Mr Chebukati against claims that he is ‘rogue’ and committed election offences and breaches.
