NAIROBI, Kenya, Aug 27 – As the world waited on the much touted match between boxing heavyweights Floyd Mayweather and Conor McGregor, Kenya’s political heavyweights dueled it out before the Supreme Court, just hours earlier.
The bone of contention, an application by co-petitioners Raila Odinga and Kalonzo Musyoka for court ordered “unfettered” access to the Independent Electoral and Boundaries Commission’s servers and not only theirs, but to KIEMS system service providers Safran’s as well.
Odinga and Musyoka have also applied for access to the original, famed Form 34As and Bs which, respectively, are the official record of the number of votes each of the eight presidential candidates got in the August 8 election in the 40,883 polling stations and 290 constituencies.
And while the IEBC made a concession where the forms are concerned, they, together with President Uhuru Kenyatta’s legal team – the respondents – presented the petitioners’ request to access the servers and systems as impractical to achieve in the limited constitutional timelines, provided for the hearing and determination of the suit.
The petitioners’ position, as argued by Senior Counsel James Orengo was that it would take no more than a few hours to scrutinise the forms and carry out forensics on the servers and systems but gave varying time estimations.
“For example for Form 34B, if I’m given 30 minutes, I’ll be able to tell you right from the outset,” Orengo first said before later changing it to one hour. “Even those thirty minutes will be appropriate and enough to expose this fraud,” he later said in a reversal when taken to task.
His co-counsel and former Ombudsman Otiende Amollo asked the court to give the party up to mid-morning Monday, should they be granted access to the information they sought, to report back to the court with their findings.
More fundamentally, the IEBC and President Kenyatta’s legal teams led by Paul Muite and Fred Ngatia respectively, said it was not only unorthodox but counter to legal practice, to allow the petitioners to introduce new evidence once their case was already filed; making the case that the court was compelled to make their determination based on the evidence before it.
Such an application, IEBC Chairperson Wafula Chebukati’s legal representative Issa Mansour submitted, should have properly been made before the petitioner filed their petition if they intended to rely on said evidence. “They’re seeking enlargement of time, to introduce that evidence, outside the stipulated seven days within which the petition should have been filed.”
“That evidence is inadmissible as a matter of law, because the petition and the supporting evidence go hand in hand,” he submitted.
President Kenyatta’s counsel Ahmednasir Abdullahi was of the same mind, submitting that in essence, Odinga had in his own affidavit – in support of the application – admitted that they had no case absent the “fishing expedition.”
The respondents also took the petitioners to task over public statements they had made to the effect that they were already in possession of evidence that the IEBC’s systems were hacked; even going as far as to claim that slain IEBC ICT manager Chris Msando’s access codes were used posthumously the afternoon of the election.
“In fact it’s in the public domain, at one point they even gave us the time of hacking,” Muite recalled.
Justice Isaac Lenaola himself questioned how the petitioners, should they be granted access to the information they seek, inform the court of their findings.
“Say the orders are granted, you’re going to get that information to yourselves, how does that information come back to the court?
The judges who were adamant that the hearing proper of the petition must commence on Sunday, having held the pre-trial conference on Saturday, will deliver their ruling on the application at 2pm Sunday before proceeding to hear the petition at 3pm.
They will also be ruling on the applications of various parties including the Attorney General and Law Society of Kenya, to be enjoined as friends of the court.