, NAIROBI, Kenya, Aug 29 – President Uhuru Kenyatta’s lawyer Fred Ngatia on Tuesday took Raila Odinga and Kalonzo Musyoka to task for failing to concretely state – before the Supreme Court – how many votes exactly they believe were stolen from them in totality, and by how much it affected the election outcome.
He also questioned why the duo contested the results when they had agents in about 84 per cent of the 40,883 polling stations of whom 94 per cent, signed off on the results as captured on the now famous Form 34As.
And at the end of the day, Ngatia submitted, it was down to the results on those forms. “We should not have a contest on transmission. We should have a contest on Form 34A,” he told the court.
It was this point that Ngatia sought to make by playing for the court a video of former US Secretary of State John Kerry being interviewed by the Cable News Network (CNN).
During the interview done before the Independent Electoral and Boundaries Commission declared the result of the presidential result, Kerry stated: “This is not an electronic vote, it’s a paper ballot ultimately.”
It was for this reason that, Ngatia said, they had therefore taken it upon themselves to tabulate the legitimate discrepancies raised by the petitioner and found that they would not significantly alter the final result, terming them “totally insignificant.”
The 54 per cent win of his client, Ngatia submitted, was consistent with the projections the Election Observer Group (ELOG) made. Having had 8,300 observers in 47 counties; covering 98.4 per cent of the 40,883 polling stations.
Ngatia took the time to buttress this line of submission by making reference to the African Union and Commonwealth Election Observer Missions reports. “The AU found it a true reflection of the will of the Kenyan people.”
The overwhelming majority of seats the governing party secured in the election, President Kenyatta’s lawyers submitted, was proof of his popularity. “If he secured a paltry 10 seats in Parliament and then went ahead to win the Presidency then maybe then they’d have a case,” fellow lawyer Ahmednasir Abdullahi submitted.
He however appeared to trip himself up when he submitted that the best evidence adduced by the petitioners, Odinga and Musyoka, so far is when they questioned the authenticity of the Form 34As even simply by looking at them.
The legal team also defended the role of Cabinet Secretaries in the campaigns and intimidating remarks President Kenyatta is accused of having made to provincial administration chiefs in Makueni.
“The over 300,000 votes the petitioner secured in the county compared to the 27,000 my client garnered disprove those claims,” Ngatia submitted.
On the role of CSs in campaigns, Ngatia submitted that there was a distinction between public and state officers and the roles they play.
They also submitted that by granting the annulment of the presidential election that Odinga and Musyoka are seeking, the Supreme Court would in effect be declaring that “the 15 million who voted were not entitled to exercise their rights,” Abdullahi submitted.
Ngatia also responded to the petitioners’ contention that there was no way the presidential election results could have started streaming in just seven minutes after the close of polls.
Echoing the submissions made by the Independent Electoral and Boundaries Commission on Monday, he submitted that there were only 10 ballots to tally at the Narok Main Prison – prisoners limited to voting in the presidential election. “How long does it take to count 10 votes?” he posed.
The IEBC on Monday having attributed the higher number of votes for president than there were for the other elective posts on the fact that prisoners and voters in the Diaspora exclusively voted for the one post, Ngatia added to that the “peculiar” voting habits of Kenyans; submitting that there was usually more interest in certain elective posts than others.
Abdullahi even gave the example of Kiambu where he submitted that more votes were cast for the Woman Representive post than presidential.
Ngatia ended his submissions by painting a picture for the Supreme Court of what life would be like should they nullify the election and pleaded with them to allow President Kenyatta to move forward with his second term.”We cannot be in election mode throughout our lives and there is no guarantee that would be the end of it.”