Judges: Forgeries, lack of proof undid Raila Odinga’s poll petition

Supreme court judges

Supreme Court judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Philomena Mwilu, Martha Koome, Mohamed  Ibrahim, Njoki Ndung’u and William Ouko on January 20, 2022. 

Photo credit: File | Nation Media Group

Use of forgeries to dispute election results, failure to prove ballot-stuffing claims and a vote recount that confirmed the electoral agency’s tally were the undoing of the petition challenging the election of Dr William Ruto as President.

In a 131-page detailed judgment by the Supreme Court, the judges have also recommended electoral reforms, including law review to clearly set out the roles of the chairman and commissioners of the Independent Electoral and Boundaries Commission (IEBC) and restricting access to poll servers to curb vote-manipulation.

The petitioners’ reliance on forgeries to dispute the results and lack of evidence to prove irregularities and illegalities undermined the push to overturn the victory of the United Democratic Alliance (UDA) candidate.

Dr Ruto also won because the technology deployed by IEBC met the standards of integrity, verifiability, security and transparency. Lack of credible evidence to prove that a third party had accessed IEBC’s Results Transmission System (RTS) gave Dr Ruto a major boost, as claims that foreigners interfered with the election system failed the standard of proof.

Additionally, petitioners relied on doctored documents, hearsay and sensational pieces of evidence to move the judges to overturn the UDA candidate’s win.

A shot in the arm

Dr Ruto and IEBC also got a shot in the arm after a court-ordered recount of presidential votes matched what was captured in Form 34C. Among the polling stations that the court ordered for recount following a request by the petitioners led by Mr Raila Odinga and his running-mate Martha Karua was Tinderet Conmo in Nandi County.

“The report by Registrar of the Supreme Court noted that the alleged polling station called Tinderet Conmo in Nandi County did not exist although Mr Odinga alleged infractions in that polling station,” said the seven-judge bench led by Chief Justice Martha Koome. On the outcome of the scrutiny and verification of votes cast and garnered by each of the presidential candidates per polling station, save for four polling stations, the report said there was no variance between results as captured in Form 34A and recount.

On forgery, the petitioners presented the 2017 logs in their bid to prove that the RTS used in 2022 elections had been interfered with. The same turned out to be fake and not genuinely sourced from the IEBC’s server.

The petitioners failed to present evidence in court to prove that it was possible, from the design of the system, to intercept and edit with Forms 34A before uploading them onto the public portal.

The judges said that, although imperfections in the election administration process are inevitable, the irregularities and illegalities cited by the petitioners were either not proved to the required standard or at all. The apex court further held that, although the Kenya Integrated Election Management System (Kiems) kits failed in 235 polling stations, the matter was properly addressed.

The top court’s decision to affirm its 2013 finding that rejected ballot papers do not constitute a valid vote cast and cannot be included in calculating the final tally in favour of a presidential candidate, also gave Dr Ruto another edge over the petitioners.

“We are not persuaded by the fourth petitioner [Khelef Khalifa and three other activists] and LSK who urged us to reconsider our position on this finding. We reiterate that rejected votes cannot be taken into account when calculating whether a presidential candidate attained 50 per cent plus one of votes cast in accordance with Article 138 (4) of the Constitution,” the judges said.

Mr Odinga’s petition also suffered a major setback after his lawyers, Celestine Anyango Opiyo and Arnold Ochieng Oginga, filed affidavits that the court said contained sensational information about Forms 34A.

“The affidavits ... were not credible. The registrar’s report confirmed that all the Forms 34A attached to those affidavits and purportedly given to them by agents at select polling stations were significantly different from the originals, certified copies and those on the public portal,” the apex court said.

Super-imposed

Another sensational piece of evidence produced on behalf of Mr Odinga was by his lawyer Julie Soweto, the court said.

She took the court through a demonstration of how the Forms 34A were interfered with and “graphically” pointed to Gacharaigu Primary School polling station (Murang’a County). She argued that IEBC’s stamp on the Form 34A on the portal gave the impression that it had been super-imposed over another stamp.

She also demonstrated to the court that at the top left hand corner, the name of Jose Camargo appeared, an indication to her, that he had access and opportunity to interfere with the Forms 34A uploaded on the system. But the court said the arguments amounted to “hot air”.

The judgment also indicates lack of credible evidence by petitioners to support claims that Forms 34A presented to Azimio La Umoja One Kenya Coalition Party agents differed from those uploaded to the public portal.

It said: “No admissible evidence was presented to prove the allegation that Forms 34A were fraudulently altered by a group of people in some place in Karen in Nairobi under the direction of persons named in the affidavit of John Mark Githongo and the video clip attached to it purporting to support these allegations.”

“The video evidence was inadmissible for the reasons that the informant’s particulars were undisclosed, his statement and account of events, contained in the affidavits of John Mark Githongo were not only incredible but also amounted to hearsay,” they added.

The court found no proof on claims that there was a difference between Forms 34A uploaded on IEBC’s public portal, those received at the National Tallying Centre, and the ones issued to agents at polling stations.

Allegation of erasures, alteration and falsification on the original Forms 34A and the Forms 34A uploaded on the online public portal also fell after the court found that the original Forms 34A were authenticated by their unique security features that included UV sensitive features, microtext with the words ‘Independent Electoral and Boundaries Commission’, tapered serialisation, anti-copy features and water mark that enhanced the security of the information management environment.

The alteration allegation had been supported by forensic reports attached to the affidavits of Martin Papa and Susan Wambugu, the experts who also claimed that handwriting on some of the Forms 34A appear to have had a common origin.

The Supreme Court held that a petitioner who seeks the nullification of elections for alleged non-conformity with the Constitution or the law or on the basis of irregularities and illegalities, has the duty to proffer cogent and credible evidence.

Download the full judgment here:

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