NAIROBI, Kenya, Mar 25 – The Supreme Court is expected to rule on Tuesday morning over two crucial issues ahead of the end of the pre- trial conference on the presidential election petition.
The court will first rule on the application by Prime Minister Raila Odinga that seeks to compel the Independent Electoral and Boundaries Commission (IEBC) to provide information that will facilitate a forensic audit on its Information Technology (IT) systems that were used in the General Election.
The application filed by Odinga’s lead counsel George Oraro holds that although IEBC’s IT director Dismas Ong’ondi has filed an affidavit admitting failure of the systems, he did not give empirical explanations for the same failings.
The court is also expected to rule on the admissibility of another affidavit by Odinga of evidence alleging inconsistencies in results from another 122 polling stations.
Lawyers representing IEBC, its chairman Issack Hassan, President-elect Uhuru Kenyatta and his deputy William Ruto objected to the admission of the affidavit saying that it made the petition mutate.
While lead counsel Oraro maintained that he was within the Supreme Court’s rules to file the material evidence, his counterparts insisted that he was time barred to ‘file another petition.’
Oraro insisted that nothing barred him from adducing new pieces of evidence before the court and the pleadings in the petition he filed had not changed. He told the court that he had relied on material provide by the IEBC.
“The evidence is in conformity with the pleadings made in the petition. I am surprised by arguments of respondents’ counsel but the truth is that it all concerns why they want to put off the case,” he said adding that no provision in the rules prohibited a petitioner from filing a response to a replying affidavit.
“Nothing has been changed from the original petition unless the counsel wants to say that exhibits are produced in court for entertainment and not for interrogation and analysis,” he added.
Lawyer Fred Ngatia representing President-elect Kenyatta and Ahmednasir Abdullahi representing Hassan argued that the new complaint altered the course of the case and that it will be impossible to file responses to a document they said was 900 pages.
“The court must make it clear if complaints brought in time can be amplified by other complaints brought in when they are time bound,” Ngatia urged the court, maintaining that a petitioner was bound by his pleadings.
“When will it be confirmed the parameters within which the respondents can answer to? we already responded to the 57 cases they brought forward and the affidavit proposes a serious amendment,” Abdullahi submitted.
Mohammed Nyaoga who is part of the IEBC legal team told the court that the petitioner had his agents at polling stations and should have had that information when he was filing the petition.
On the application for information on the IT system, lawyer Nani Mungai representing IEBC objected, saying that it required the commission to supply its whole IT infrastructure while the information needed was already made available.
“There is no legal basis to undertake a forensic audit; the information sought for is irrelevant to the issues raised in the petition,” Mungai told the court.
Counsel Ochieng Oduol for Odinga however insisted that only logs of activity of the servers could provide conclusive answers as to what was the cause of the failures.
“The reasons given are unsatisfactory; logs will show why there were failures we are only asking for information on six servers,” Oduol told the court.