A presidential election petition challenging the victory of Dr William Ruto , filed by his main rival Mr Raila Odinga , argues there was no outright winner as the turnout figures were manipulated and urges the Supreme Court to nullify the results.
For a third successive election, the former prime minister has taken on the Independent Electoral Boundaries Commission (IEBC) at the top court, seeking nullification of the presidential poll results declared by its chairman Wafula Chebukati.
Mr Odinga and his Azimio la Umoja One Kenya Coalition yesterday filed the 72-page petition challenging the presidential election results.
A little past midday yesterday, Mr Odinga and his running mate Martha Karua led several of the coalition’s members to the Supreme Court’s sub-registry at Forodha House. Dozens of supporters forcefully made their way into the restricted premises.
An hour later, after the sub-registry admitted the petition backed by documents that filled a seven-tonne truck, Azimio’s key prayers to the apex court were revealed — a recount of votes or a fresh election, but with Mr Chebukati removed from the IEBC in either scenario.
In their petition, Mr Odinga and Ms Karua claim that there was a plan, which was hatched in March, to manipulate the election results in Dr Ruto’s favour.
Part of the manipulation, Mr Odinga and Ms Karua hold, is seen in a sample of 42 polling stations in Kiambu and Bomet counties where physical forms differ from what was uploaded onto IEBC’s portal.
In the two counties, Dr Ruto got significantly more votes in the forms uploaded on the IEBC portal, compared to the physical documents, while Mr Odinga’s votes were significantly reduced.
A massive swap of documents
This, the Azimio candidates say, shows that there was a massive swap of documents in Dr Ruto’s favour and is a ground for invalidation of the results.
The conflicting forms, the petition states, share serial numbers but have different results, which is evidence of manipulation.
The Azimio duo allege Mr Chebukati has bungled a second successive presidential election, and that he disregarded several election laws in declaring Dr Ruto the President-elect.
The Azimio team argues that the numbers Mr Chebukati relied on in his declaration do not add up when tallied against the vote transmission forms.
Raila addresses nation after filing petition
Last week, Mr Chebukati announced, amid chaos at the National Tallying Centre inside Bomas of Kenya, that Dr Ruto garnered 7.1 million votes (50.49 per cent of the total votes) against Mr Odinga’s 6.9 million (48.85 per cent). In the certificate handed to Dr Ruto on August 15, Mr Chebukati stated the result were based on 14,213,137 votes from all over the country.
But the petitioners now argue that adding up the number of voters from all constituencies listed in the certificate leaves Mr Chebukati’s final tally short by 110 votes. They add that in total, the IEBC has not accounted for more than 140,000 voters who were captured using identification kits at their polling stations but whose choice for presidency is not reflected in Form 34C – the final result transmission form.
Including individuals who were identified using the printed voter register, the Azimio team holds that more than 250,000 votes have not been accounted for in Mr Chebukati’s final tally.
To back their arguments, Mr Odinga and Ms Karua say that the IEBC chairman declared a winner when results from 27 constituencies were yet to be received at Bomas of Kenya, and which would have either secured an Azimio win or left Dr Ruto short of the required 50 per cent plus one vote.
They also say that IEBC failed to tally and verify results before Mr Chebukati declared Dr Ruto President-elect, in violation of Article 138 of the constitution.
In addition, the two argue that Article 138 of the constitution gives power to the IEBC as a commission to tally and verify results, but Mr Chebukati usurped the role of the institution in declaring incomplete and unverified results.
Azimio delivers presidential petition files in a lorry
Among the constituencies Azimio holds had not transmitted results were Mvita, Matunga, Kilifi North, Bura, Fafi, Wajir North, Eldas, Mandera West, Tigania East, Mbeere North, Ndaragua, Kapenguria and Kacheliba. Others are Narok North, Narok South, Narok West, Kajiado East, Kanduyi, Nyakach, Rangwe, Ndhiwa, Suba North, Kuria East, Bomachoge, Borabu, Kitutu Chache North and West Mugirango.
Edgar Otumba, the statistician whose work Mr Odinga relied on in the nullified 2017 presidential election, has pointed out that based on the IEBC’s documents there are discrepancies with what Mr Chebukati announced.
Dr Otumba holds that the IEBC documents, whose veracity Azimio is challenging, show that the results Mr Chebukati announced should have left Dr Ruto 442 votes short of the 50 per cent plus one vote mark.
Mr Odinga and Ms Karua add that Mr Chebukati oversaw a swap of some documents after Dr Ruto’s declaration as President-elect.
“Secondly, the second respondent (Mr Chebukati) was continuously deleting and uploading different result declaration forms i.e forms 34A, 34B and 34C even after the declaration of the final ‘outcome’ on August 15, 2022.
“Even based on the disparities in the fraudulently manipulated numbers of the voter turnout, the petitioners state that the 9th respondent (Dr Ruto) did not meet the constitutional threshold of 50 per cent plus one of the valid votes cast,” the petition states.
A series of internal conflicts pitting Mr Chebukati against past and present IEBC staffers has also led the Azimio candidates to call for his removal and invalidation of the August 15 declaration.
The latest fallout has seen commissioners Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene Massit disown the results Mr Chebukati announced.
All seven commissioners and Mr Chebukati have been listed as respondents alongside Dr Ruto. Their listing as respondents could spark a fresh battle as they could submit conflicting positions in court.
The Directorate of Criminal Investigations (DCI) has also been dragged into the dispute, as Mr Odinga and Ms Karua want evidence gathered in the arrest of four individuals over the past month presented in court.
Detectives arrested three Venezuelans – Salvador Javier Sosa Suarez, Jose Grecorio Camarigo Castellanos and Joel Gustavo Rodriguez Garcia – on July 21, 2022. The DCI said it found the three with sensitive IEBC materials and implied that the trio was likely hired to interfere with election results as one of the laptops confiscated had remote access to IEBC’s sytems.
The detectives also found that Mr Castellanos had super access to IEBC systems and a hard drive containing sensitive IEBC data. In total, 19 foreigners and two Kenyans had access to IEBC’s systems, the DCI found.
The Azimio candidates have asked that all evidence confiscated by the DCI alongside forensic reports be filed in court for scrutiny.
“The arrest of the said foreign nationals travelling with sensitive IEBC election-related materials under self-evidently questionable circumstances shows incredible, inexcusable and unacceptable violation of the integrity and security of the electoral process and system,” Mr Odinga and Ms Karua state.
On August 12, the DCI confiscated a black Lenovo laptop owned by a UDA agent at the National Tallying Centre. Parties had agreed that no agent would be allowed to use laptops at the verification auditorium.
A forensic analysis, Azimio states, found that the laptop had tallying forms that were somehow being uploaded to IEBC’s portal, despite the machine not being connected to the servers.
Mr Odinga and Ms Karua argue that the laptop was only temporarily storing forms for hackers who were waiting to replace genuine documents in the forms portal.
The Azimio candidates also claim that more than 7,500 identification kits were yet to transmit any data a day after the election, yet all devices used by the IEBC had been closed successfully. At closing, the kits should have transmitted their data to the National Tallying Centre.
IEBC’s ICT support coordinator Paul Wachanga Mugo revealed the information in an email, they say. Another 687 kits were still transmitting data a day after being closed.
One of the witnesses in the petition, John Mark Githongo, claims to have evidence from a hacker contracted by one of Dr Ruto’s allies, Dennis Itumbi, to manipulate forms being uploaded to IEBC’s portal. The hackers would allegedly intercept and manipulate the forms.
Like in 2017, Mr Odinga is also questioning how thousands of voters only voted for the presidential candidates but ignored other positions.
Azimio sampled eight counties and found 33,208 voters who purportedly made only a presidential pick.
The coalition also claims that IEBC staff intentionally failed identification kits in Kakamega and Makueni counties, which are Mr Odinga’s strongholds, to frustrate voters and suppress the former Prime Minister’s votes.
Mr Odinga and Ms Karua further state that the postponement of the gubernatorial and National Assembly members elections in some parts of the country like Mombasa, Kakamega and Nakuru’s Rongai Constituency, was part of a voter suppression strategy to discourage Mr Odinga’s supporters from turning up.
Reporting by Brian Wasuna, Joseph Wangui and Richard Munguti
