By OLIVE BURROWS, NAIROBI, Kenya, Aug 28 – Raila Odinga and Stephen Kalonzo Musyoka were themselves in court on Monday as their legal teams laid out their reasons for contesting the declaration of President Uhuru Kenyatta as the winner of the August 8 presidential election.
Coming off a win in securing orders to be allowed – albeit limited – access to the Independent Electoral and Boundaries Commission’s ICT systems, the petitioners explained why they had also asked to be furnished with the original forms used in the declaration of the presidential election result: Forms 34A, B and C.
It was their submission that the forms the IEBC had already filed with the court were not authentic and should not have been used to determine who won as they were not those printed, under the watchful eye of the presidential candidates’ agents, in Dubai by Al Ghurair.
In making this point, they submitted that some of the forms had no identifying markings, others were unstamped and were in general not uniform in appearance; were absent security features such as anti-copying and on reading of the barcodes, one could not reliably ascertain the polling centre to which the results related.
“The Mathira on the form containing the constituency’s returns for instance is evidently hand written. These forms appear to have been generated on excel,” Odinga’s lead counsel James Orengo stated.
More fundamental however was the “bombshell” they promised to drop on Friday when filing their written submissions.
The former Ombudsman Otiende Amollo took the court through “purposeful mistakes” in the filling of the returns which he submitted, went beyond human error and into the realm of electoral offences.
The results for Nyando constituency for example, he submitted, “a stronghold of the petitioner,” was entirely left out of the Form 34C on which the final result was tabulated.
In a constituency in Turkana he submitted, more were listed as having voted than there are registered voters.
The declaration of the result before IEBC was in possession of all the Form 34As (result forms from the polling stations) – Amollo submitted – was an offence that should have landed the Commission in jail; a rush indicative of criminal intent when taken in context of the discrepancies that arose after the numbers were transferred from one form to the other for the purpose of tallying.
Discrepancies which the Commission had evidently attempted to remedy, they submitted, in a tampering exercise.
“As of August 14, three days after the winner was declared, the Commission was still missing 10,000 form 34As. Given every polling station had no more than 700 voters, we’re talking seven million votes.”
The returns for 14 constituencies, he also submitted, were not made by gazetted officers and therefore invalid; affecting 594,476 votes.
Amollo also submitted that Chebukati contravened the constitutional requirement for accountability when he failed to declare the official number of rejected votes when he declared the votes garnered by each of the eight presidential candidates.
The winning figure he gave, Amollo submitted, also differed from that captured on the certificate issued to President Kenyatta.
It was also their party’s contention that there was a “consistent pattern” in the filling of the constituency result forms to rig the election in favour of President Kenyatta. In the tallying of numbers from the polling stations, they submitted, the votes President Kenyatta got were inflated and those of Odinga understated.
The difference in the total number of votes cast for president as compared to those of governor and Member of Parliament, they submitted, also pointed to the “dubious” nature of the presidential election result.
They also maintained that the results displayed on the public portal evidenced a determination to rig the election in favour of President Kenyatta.
They submitted that the difference in votes between President Kenyatta and Odinga could not have remained so consistent on the portal were the data coming in randomly from the various polling stations across the country. They also submitted that there is no way the results could have started streaming in as early as 5.07pm when the official polling station closing time was 5pm.
They also highlighted the massive difference in the number of rejected votes as reported on the portal and on the forms.
In Kipipiri constituency, they gave by way of example, the number of rejected votes as indicated on the forms were 92 while the portal read 1,087.
“Those were not merely statistics,” Amollo submitted. “There results cannot reasonably be so markedly different. The new term they’ve coined of ‘transmission errors’ makes no sense.”
The chain of custody of some forms, they also submitted, was difficult to ascertain as they were not signed on handover from the presiding officer to the constituency returning officer.
In a rallying call, Orengo called on the Supreme Court to therefore declare the August 8 presidential election a nullity and using a football match analogy, called on the judges as referee, “to put their foot down,” not for Odinga but for all posterity.