By the time the Supreme Court sub-registry at Forodha House in Milimani closed for the day on Monday, nine petitions had been filed in relation to the August 9 presidential election.
Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati’s declaration that William Ruto won the election has triggered the highest number of petitions ever filed against the polls agency’s presidential results.
Next week, the Supreme Court will start hearing eight petitions challenging the results Mr Chebukati announced on August 15 in which Dr Ruto was declared President-elect after garnering 7.1 million votes.
Former Prime Minister Raila Odinga, the results indicated, got 6.9 million votes.
Mr Odinga and his running mate Martha Karua are among 18 litigants across eight petitions that are seeking to have the election results invalidated.
The judges will also consider a petition filed by former Gatundu South MP Moses Kuria seeking a declaration that Mr Odinga and his Azimio la Umoja One Kenya Coalition were criminally culpable for violence that broke out at IEBC’s National Tallying Centre before Mr Chebukati’s announcement.
Among the key questions in the eight petitions is whether the results Mr Chebukati announced were tallied and verified in line with Article 138 of the constitution.
Article 138(3)(c) of the constitution states that “after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result”.
While Mr Chebukati and the IEBC are yet to file responses to the petitions, the IEBC chairperson insisted while reading out the results that they were a final, verified account of how Kenyans voted.
A few minutes before Mr Chebukati read what he said were the final and verified results, four IEBC commissioner—Juliana Cherera, Justus Nyang’aya, Francis Wanderi and Irene Masit—were at the Serena Hotel in Nairobi disowning the outcome to be declared at Bomas of Kenya.
A lone ranger
They argued that Mr Chebukati had refused to let them verify the final tally before declaration.
The Supreme Court is expected to determine whether all the commissioners should have been allowed to see the results before declaration as part of verification, or if authentication done by junior technical staff was enough.
Mr Odinga and Ms Karua argue that the IEBC chairman became a lone ranger who announced the results without involving key stakeholders.
“Mr Chebukati, without reason or justification, wilfully refused to share and circulate the final presidential results with the presidential candidates’ chief agents, observers, media or even his fellow members of the commission before declaring the decision of the IEBC on tallying and verification, making the final announcement and declaration of the ‘result’ unverifiable, unaccountable and unconstitutional,” the Azimio flagbearers argue in court papers.
Busia Senator-elect Okiya Omtatah adds that Mr Chebukati, in press statements insisted that only the IEBC chairperson is allowed to tally and verify votes, which the activist-turned-politician holds is a violation of Article 138 of the Constitution that vests power in the commission.
Chief Justice Martha Koome and her team will also have to make a determination on whether the IEBC’s failure to transmit the results justifies invalidation of the elections.
Azimio, in its petition, says the IEBC last updated its television screens at the National Tallying Centre when Mr Odinga had 2,061,909 votes (54.3 per cent) against Dr Ruto’s 1,708,801 votes (45 per cent).
Poll petition: Why Raila, Karua want court to quash Ruto win
The Nation team stationed at Bomas reported that the last time the IEBC updated its screens was at 1.03pm on August 13. At that time, Mr Odinga was leading with 2,288,315 votes (52.54 per cent) against Dr Ruto’s 2,036,795 votes (46.76 per cent).
Azimio now holds that the failure to display verified results was another pointer to an unverifiable process.
The apex court will also have to determine whether the results Mr Chebukati declared on the Bomas of Kenya floor included 27 constituencies that the eight petitions say were missing.
Among the constituencies Azimio holds had not transmitted results were Mvita, Matuga, Kilifi North, Bura, Fafi, Wajir North, Eldas, Mandera West, Tigania East, Mbeere North, Ndaragua, Kapenguria and Kacheliba.
Others are Narok North, Narok South, Narok West, Kajiado East, Kanduyi, Nyakach, Rangwe, Ndhiwa, Suba North, Kuria East, Bomachoge, Borabu, Kitutu Chache North and West Mugirango.
Some of the constituencies are in Mr Odinga’s political strongholds, and he says that if the allegedly missing results had been factored in, Azimio might have won the election.
Still on the numbers, the Supreme Court will also have to determine exactly how many people voted in the disputed polls.
The petitions before the apex court have accused Mr Chebukati of tinkering with the voter turnout figures to ensure Dr Ruto attained the 50 per cent plus one votes constitutional requirement for a first-round win.
While announcing the final results, the IEBC boss held that 14,213,137 valid votes were cast in the election and 113,614 rejected.
But an addition of the votes each candidate got totals 14,213,027. This leaves a difference of 110 votes, which Azimio’s candidates hold is one of several discrepancies in the final results announced.
The court has been asked to take note of Mr Chebukati’s third briefing after closing of the voting stage, in which the IEBC chairman said 65.4 per cent of registered voters turned out.
The percentage would put the number of voters at 14,446,779, excluding those that were identified through a printout of the voter register.
A majority of the petitions hold that Mr Chebukati’s final proclamation of 14,213,137 is inaccurate as it lowers the number of voters and gives Dr Ruto an unfair advantage.
“This means that, because the chairman did not factor in those who voted manually, there are at least 140,028 untallied votes (being 14,466,779 minimum cast votes minus 14,326,751 declared votes cast),” Mr Omtatah says in his petition.
After all the parties have filed their pleadings, the Supreme Court will be tasked with confirming whether result forms transmitted from polling stations were being swapped with fakes to increase Dr Ruto’s tally.
Mr Odinga and Ms Karua hold that a sample of 42 forms in Bomet and Kiambu counties shows that in the forms uploaded onto IEBC’s portal, Azimio’s votes were deducted and added to Dr Ruto’s tally.
Azimio wants the court to order a forensic audit of all forms uploaded onto the IEBC portal to establish how many were different from the physical copies from polling stations.
The petitioners argue that in Mr Odinga’s strongholds, votes would be deducted from the former Premier but not added to anyone. It further states that in other areas, the votes that were deducted would be stuffed in Dr Ruto’s corner.
The stuffing, Azimio says, gave Dr Ruto an additional 217,631 votes that not only pushed him past Mr Odinga but also created a false impression that the DP met the 50 per cent plus one vote requirement.
The court is also expected to rule on whether the IEBC systems were hacked by outsiders who had orders to stack up Dr Ruto’s votes.
Former anti-corruption czar John Mark Githongo has filed an affidavit that could reopen the 2017 debate on access to IEBC servers.
Mr Githongo says he interviewed one of 56 hackers hired by Kenya Kwanza operative Dennis Itumbi to ensure a Ruto win.
The alleged hacker claimed that his team would receive result forms from the IEBC’s Kiems kits, alter the figures and then dump them onto the online portal.
The hacker held that the original forms are on IEBC’s servers, a claim that could lead to an order for access to the servers to confirm whether there were any discrepancies between what was posted on the polls agency’s website and the tally from the actual physical forms.
Mr Githongo’s transcription of the alleged hacker’s testimony claims that results for some gubernatorial races were also manipulated to ensure Kenya Kwanza had its way in counties of interest.
Access to the servers may also settle the question of whether some forms were altered on IEBC’s portal as claimed by Azimio’s candidates.
Download a copy of Raila's Supreme Court petition: Raila Odinga petition download