Judiciary report on recount of votes raises key queries

Six of the 41 polling stations scrutinised by the Judiciary did not present the second set of Form 34A known as Book 2 of 2, the Supreme Court Registrar's report on inspection, scrutiny and recount of votes shows. 

The report also shows there were no glaring discrepancies or variances between election results captured on Forms 34A of the 45 ballot boxes scrutinised by the Judiciary and finding as per the recount of votes. 

In addition, it shows no variance in most of all the other materials such as seals, envelopes, apertures and manual registers.

Twenty-six stations presented intact Forms 34A Book 2s and nine presented used Book 2s with varying numbers of carbonated copies.

The report shows that some returning officers explained the absence of Book 2 by indicating that the presiding officers used them instead of Book 1. 

Accountability

In such cases, the Judiciary inspection team verified the information by looking for Form 34A Book 1 to confirm if it was indeed intact for purposes of accountability. 

"The reasons given by the returning officers is that some presiding officers mistook the two books because they did not understand the procedure. Other returning officers had no explanation for the absence of Book 2. They indicated that they had just learnt of the anomaly together with the scrutiny," the report indicates. 

For instance, the Kiambaa constituency returning officer explained that her presiding officer used Book 2 because he had spoilt Book 1.

They, however, did not present the spoilt Book 1 for the team’s scrutiny, and the polling station diary did not indicate that Book 2 had been spoilt.

"All the returning officers appearing before the scrutiny team indicated they did not use the manual register. They, therefore, had no Forms 32A to present," the report indicates. 

The scrutiny and recount of votes were pursuant to an order of the Supreme Court directing the electoral commission to provide certified copies of Forms 32A and 34A Book 2 used in the August 9 election in specific contested polling stations in Kiambu, Mombasa, Bomet, Nandi and Kakamega. 

Some of the discrepancies noted were such as in Ol Joroorok Primary School's three of five polling stations where the team observed that the total number of valid votes cast in Form 34A was altered but not countersigned. 

In the station, it observed that there were two presidential ballots unaccounted for.

In Ol Joroorok Primary School stream one of five, it was observed that although the ballot box was intact and sealed, the parties alleged that the condition of the polling station diary appeared ‘new’/’unused’ and not in the same condition as other diaries.

Aperture numbers were different (on the ballot box and in the diary) and there were three presidential ballots in the governor's ballot box according to the diary. 

In Mvita Primary School – three of seven, it was observed that Form 34A was not stamped but signed by the presiding officer, deputy presiding officer and agents for Kanu and ODM.

"Each of the ballot box received for this exercise was scrutinised to establish the integrity of the same from the end of counting after polling on August 9 to the time of scrutiny," the report indicate. 

In regard to access to the electoral commission's servers, the report indicates that the Independent Electoral and Boundaries Commission (IEBC) granted the inspection team access to the server for interrogation by the parties present. This exercise continued and ended at about 9:25 pm.

Transmission review

To determine the scope and the number of servers at the national tallying centre for storing and transmitting voting information, the team agreed to review the transmission of Forms 34A from the Kiems kit to the public portal.

Martin Nyaga, an officer of IEBC, presented the supporting architecture.

"According to Mr Nyaga, Kiems kit scans the Form 34A into PDF which is then transmitted to a storage server. At the storage server, the form is processed by an application to check for compliance with certain security features. If the PDF file has all the features it is published on the public portal or it is dropped. Mr Nyaga further clarified that in all this process one server is involved," the report shows. 

“Agents were granted supervised access to the live server through an interactive session. All their concerns and questions were exhaustively answered through querying of server for logs, users, access trails, scrutiny of Forms 34A, 34C, 34B at the operating system level and related details,” the report reads.

By the time the scrutiny exercise was concluded, the IEBC had not provided a forensic image of Form 34C, the final results transmission document for Presidential polls, to the Judiciary’s team.

On the provision of penetration test reports prior to the elections, the registrar said IEBC provided the same.

“Report on the internal network and infrastructure vulnerability assessment and certificate of 19 penetration tests were provided to the applicants and respondents,” said Registrar Letizia Wachira in the report.

She also reported that all agents wanted a general review of the server audit logs. The logs were provided but no suspicious activities were discovered, she said.

“Agents of Khelif Khalifa (a petitioner) wanted to know if the root user has deleted or removed any file from the server. No records of file deletion or removals were discovered. Agents wanted to know when Form 34C was uploaded. This was established to be Aug 16 2022 20:17 hours,” said the registrar.

Another agent requested to run a custom query to check all files for August 14, 2022.

IEBC demonstrated that they were one transmission which means one PDF file.

The agent also noted there were some files in the folder holding with Forms 34A called export, but the IEBC team explained the zipped files for all the files for a particular county or constituency were not requested.

The agent wanted to know what was the password policy on the server and IEBC could not display this for security reasons.