Lawyers clash over poll scrutiny report

Supreme Court Registrar Letizia Wachira

Supreme Court Registrar Letizia Wachira who filed 178-page report following an order of the court to help the judges make their decision on claims that the election systems were tampered with by foreigners.

Photo credit: Dennis Onsongo | Nation Media Group

Lawyers representing different parties in the presidential election petition at the Supreme Court yesterday differed on the findings of a court-ordered inspection and scrutiny of the electoral commission’s election technology systems and recount of votes in select polling stations.

The 178-page report was filed by Supreme Court Registrar Letizia Wachira following an order of the court to help the judges make their decision on claims that the election systems were tampered with by foreigners.

The scrutiny report is also intended to aid the top court in making a finding on whether President-elect William Ruto was rigged in through technology by manipulation of figures and alteration of results documents.

The report showed there were arithmetic discrepancies in votes tallied for stations and a mix-up in the use of the two sets of Form 34As, with some of them unaccounted for.

45 polling stations

The scrutiny focused on 45 polling stations and the ICT systems of the Independent Electoral and Boundaries Commission (IEBC).

The exercise was undertaken by a 27-member team appointed by the Judiciary, 10 of them being ICT officers. The team was supervised by the Supreme Court Registrar. Thirty-nine agents of Azimio la Umoja, United Democratic Alliance and individual citizens’ petitioners were also present.

The report showed that six voting stations did not have any Form 34A Book 2s, 26 had complete Form 34A Book 2s, and nine had used Form 34A Book 2s with varied numbers of carbonated copies.

Several returning officers justified the lack of Form 34A Book 2 by claiming that the presiding officers utilised them instead of Form 34A Book 1.

IEBC servers

On inspection of IEBC’s servers at Anniversary Towers, the report states that the voter identification kits used in the elections have an application that converts images into PDF format.

“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- etc,” 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 provision of penetration test reports prior to the elections, the registrar said IEBC provided the same.

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

No suspicious activities

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 August 16, 2022 20:17 hours.”

In court, while lawyers of Dr Ruto and the polls body emphasised that the report indicated there were no discrepancies, those of Azimio la Umoja leader Raila Odinga and civil society members insisted that the report was damning and indicting.

Accusing each other of being economical with the truth, the lawyers used their time to press for a ruling favourable to their clients.

During the face-off, the lawyers also sharply differed on whether there was a middleman in the electronic transmission of election results from the polling stations to the National Tallying Centre, Constituency Tallying Centre and to the public portal.

No deletion

Dr Ruto and the Commission’s legal teams, being led by Fred Ngatia and Prof Githu Muigai, respectively, told court that there was no deletion of any Form 34A on the IEBC servers as alleged by the petitioners.

“Parties were given the whole day by the IEBC to interact with the server. There was not a single deletion of Forms 34A from the server. There was no middleman found in the system during scrutiny,” said lawyer Omwanza Ombati for Dr Ruto. “The applicants wanted the specific names of the system administrators. This will not be possible because then you would expose the system administrators to danger.”

In their observations to the court on the report, Dr Ruto and the IEBC insisted that the scrutiny demonstrated that there were no variances and that numbers of the recounted selected ballot boxes from 45 polling stations tallied with what had been announced at the polling station.

“The election was conducted in compliance with the law and if there were minors, they did not affect the results,” said Mr Ombati.


On the other hand, lawyers for Mr Odinga, led by former public prosecutor Phillip Murgor, said the supplier of the technology to IEBC, Smartmatic International, blocked and refused any access to the servers completely.

“From our scrutiny, there is evidence of five foreign individuals, including Jose Camargo, who accessed the IEBC servers. Jose Carmago accessed the portal while in Venezuela.

“Our elections were conducted in Venezuela; the Venezuelans decided who won, Mr Wafula Chebukati, the IEBC chairman, was just a mouth piece,” said Mr Murgor.

He stated that the scrutiny of the IEBC systems showed there was deletion of Forms 34A and that the 2022 presidential election was conducted by a foreigner in Venezuela.

“No information from a server was provided to show what happened in the 2022 General Election due to modification.”

Lawyer Jackson Awele, also for Mr Odinga, said the scrutiny of the 45 ballot boxes showed IEBC used a second set of results transmission forms that it resolved with political parties to seal in tamper-proof envelopes prior to the August 9 General Election.

No suspicious activity

For its part, the IEBC, through lawyer Dennis Nkarichia, said there was no suspicious activity in the technology system.

“We fully complied with the orders on the servers, except for the ones on the policy on password securities. Access was provided to the servers. Agents were provided supervised access to the servers. They said there was no suspicious activity, compare the logs provided by the registrar and those provided by Mr Murgor,” said Mr Nkarichia.

“IEBC complied with orders of the Supreme Court to allow for scrutiny of ballot boxes, server… there is only one server, Mr Murgor was economical with the truth. IEBC gave access to the entire system architecture and explained system flow,” he stated.