Lawyers argue court-ordered reports support their opposing positions on presidential election petition

Lawyers arguing for or against a petition challenging the results of the 8th August presidential election told the Supreme Court on Tuesday that a court-ordered scrutiny of vote records and audit of the servers of the Independent Electoral and Boundaries Commission (IEBC) backed their opposing positions.


James Orengo, the lead lawyer for the petitioners, said the two reports the Supreme Court ordered proved their case and the court should nullify the election of Uhuru Muigai Kenyatta as president. Raila Amolo Odinga and Stephen Kalonzo Musyoka are the petitioners.


Paul Muite, the IEBC’s lead lawyer, said the reports showed there was no dispute over the result declared by IEBC Chairman Wafula Chebukati on 11th August and so the court should uphold that result. The IEBC and the IEBC Chairperson are the first and second respondents in this case.


Fred Ngatia, Kenyatta’s lead lawyer, said those reports showed that the allegation that there were missing records of the vote was disproved and the petition against the election of Kenyatta as president should be dismissed. Kenyatta is the third respondent in this case.


On 18th August, Odinga and Musyoka filed a petition challenging Kenyatta’s election. One allegation they made in their petition is that not all the records of the vote count in the presidential election had been received at the national tally centre when Chebukati announced the results as required by law.


The records Odinga and Musyoka said were missing were thousands of Forms 34A and scores of Forms 34B. Form 34A is the record of the votes counted at a polling station. In the 2017 election there were 40,883 polling stations. Form 34B is the record of the votes in constituency collated from all polling stations in that constituency. There were 290 constituencies in this election.


Separate from the petition, Odinga’s and Musyoka’s lawyers applied to the Supreme Court for a scrutiny of Forms 34A and Forms 34B and an audit of the IEBC’s servers. Another allegation in the petition Odinga and Musyoka filed at the Supreme Court was that the IEBC’s system of electronically transmitting results from polling stations and constituencies was compromised.


On Monday, the Supreme Court granted their application but with conditions including that the scrutiny of the vote records be done under the supervision of the Supreme Court Registrar and the audit of the IEBC servers be done of an ICT staff member of the court and two independent experts. Odinga and Musyoka were allowed to have two agents present during the scrutiny and two agents present for the audit. Kenyatta was also allowed the same number of agents for the scrutiny and audit. The court ordered the registrar to produce reports of the scrutiny and audit by 5 pm on Tuesday.



The Supreme Court gave the tight deadlines because the constitution allows only 14 days for the court to receive, hear and determine a petition on a presidential election. The 14 days begin once the IEBC Chairperson, who is the returning officer for the presidential election, declares a winner. Chebukati made that declaration on 11th August.


Orengo, Muite and Ngatia made submissions on the reports of the scrutiny and audit shortly after 9 pm on Tuesday. The court allowed only lawyers representing the petitioners and respondents to make submissions and allocated them 15 minutes each. None of the lawyers representing interested parties or friends of the court were allowed to make submissions.


The scrutiny and audit did not go without a hitch. Both Orengo and Muite reported back to the court at noon on Tuesday that the scrutiny of the vote count records was proceeding but slowly and they asked the court to allocate more court staff to speed up the process. Orengo also asked to be allowed an additional three agents to be present to speed up the process. Chief Justice David Maraga granted their requests.


The audit of the IEBC’s servers proved more controversial, with Orengo telling the court that at that point, noon on Tuesday, nothing had happened. Muite told the court the reason for that was the people who were to facilitate access to the servers are in Europe and they were asleep.


Chief Justice Magara said the parties and their agents should work together and comply with the order so that the court could get a report by 5 pm. He said if the order was not complied with, the court would listen to reasons why it was not complied with and determine whether those reasons were justified.


“If some of your clients’ agents are in Europe or wherever they must have been told yesterday. Wake them up and get the order complied with,” said Chief Justice Magara.


Later on Tuesday, the reports on the scrutiny and audit were ready and the legal teams for Odinga, Musyoka, IEBC and Kenyatta read through them and prepared submissions on the reports. This is when the court reconvened just after 9 pm.


Orengo was the first to speak. He said the reports showed that the elections were “shambolic.”


He said the scrutiny of the forms showed that some did not have security features such as a watermark, others did not have serial numbers and close to two-thirds of them did not have the handover section filled out. Orengo said 56 forms did not have watermarks were. Those without serial numbers were 31, he said. And the forms that did not have the handover section filled out were 189, he said.


The handover section Orengo referred is the part of the form in which a constituency returning officer signs he or she has handed over the original form to the national tally centre. The section also includes space for the person receiving the form on behalf the national tally centre to sign.


Orengo did not specify during his submission which form he was referring to, whether it was the Form 34A or Form 34B.


When he turned to the audit of the IEBC server Orengo said there was only partial compliance of the court’s order. He said they were not given the GPS location of each Kenya Integrated Election Management System device used at the polling stations as had been ordered. He said the read-only access to the servers the court had ordered was not granted. Orengo said the agents were only given live access. He told the court the agents were not able to view or access the logs nor were they able to see the login trail of users.


Orengo told the court they were able to get some information from the access agents were given.


“From what we have gleaned from what was granted even the account of the chairman (of the IEBC) was used for deletion of information from the database. They have also gleaned from what was available there was unauthorised access in some cases,” Orengo said.


“Our case has been proven that forgery, alternation of documents and trickery of documents has been used in various ways. We pray you should declare the election of the third respondent as not valid and not in accordance with the constitution,” Orengo said.


Muite said from the report on the scrutiny, the Supreme Court Registrar called a meeting and the agents for Odinga and Musyoka showed up late. He said as the process went on those agents introduced a new check list.


He said that all the Forms 34B were available, disproving the allegation that they were not available. Muite told the court security features were not a requirement under the IEBC’s regulations but it was a requirement the forms be signed, which they were.


Chief Justice Magara asked Muite that since the forms had security features whether all them should have had those security features.


“Abundance of caution. The commission out of abundance of caution designed the security features,” said Muite.


On the issue of the audit of the IEBC servers, Muite said the IEBC complied with the order given. He said the commission even gave soft copies of the logs, which the agents for Odinga and Musyoka refused.


He said it took time to set up access to the firewall of the server but access ordered by the court was given.


“The fact that it took such a long time is evidence of the security features in the system which then demolishes the suggestion that anybody would have hacked,” Muite said.


“You cannot be asked to nullify a presidential election on the basis of allegations, on the basis of suspicions. No one is challenging the numbers. The votes. Those are not being challenged,” he said.


Muite said the fact that the court ordered a scrutiny of the vote count records and an audit of the IEBC servers did not take away the responsibility of the petitioners to present the court with proof of their allegations.


“You will have to ask yourselves whether the petitioners have presented this court with any cogent evidence that this election was rigged, by who, where and how. All they have been talking about is this technicality and that technicality,” said Muite.


“The results represent the will of the people,” he said.


Ngatia was the last to speak on the scrutiny and audit. He began by referring to the Forms 34B for Kisauni, Nyali and Likoni constituencies, all of which were signed by party agents but not by the returning officer.


“My Lord, apart from that, most other 34Bs have been signed by returning officers and by agents,” Ngatia said.


A little later Ngatia told the court, “There is no allegation that the vote announced at the polling station differs with the Forms 34A. They correctly reflect the votes cast in favour of all the presidential candidates.”


When he turned to the audit of the IEBC servers, Ngatia pointed out some discrepancies between the report and its annexures, based on what agents for Kenyatta had observed. He also said that the soft copy of logs the IEBC offered were within the order of the court. He said agents for Odinga and Musyoka had asked for administrator rights which was not what the court had ordered.


“It is a fair report (on the audit of the IEBC server). It is our submission that this report fortifies what we have said all along that this election was a fair election,” Ngatia said.


The scrutiny of the vote count records took place at the Milimani Courts in Nairobi. That scrutiny was supervised by the Supreme Court Registrar. The audit of the IEBC servers took place at the headquarters of the IEBC at Anniversary Towers in Nairobi. That audit was supervised by a staff member of the court’s ICT department and two independent ICT experts appointed by the court.


Once the submissions of the parties concluded, the hearings into the presidential election petition closed. Chief Justice Magara said the Supreme Court will deliver its judgement on Friday but he said he could not give a time.