NAIROBI, Kenya, Aug 21 – The contention whether or not rejected and spoilt votes should have been factored in, during computation of the 50 per cent plus one threshold for winning a presidential election is yet again expected to feature in the 2017 presidential election petition.
In its 14-point relief pleadings, the National Super Alliance (NASA) is seeking to convince the Supreme Court bench to review a precedence set in the 2013 presidential election petition where the court decided that rejected votes ought not to be included in calculating tallies in favour of any candidate.
NASA has also lined up a series of affidavits among them those filed by election officials, its presidential agents and technology experts, all poking holes on crucial election processes which the alliance argues compromised the credibility of the August 8 General Election.
A cyber security expert identified as Apprielle Oichoe, for instance, argues in a four-page affidavit that the Independent Electoral and Boundaries Commission (IEBC) failed to secure its electronic data, an observation supporting NASA’s prayers to have IEBC servers subjected to an audit.
“Section 55 A of the Elections as read with section 44 (B) (5) contemplates privacy and security of data. If it is proved as is being posited in the petition that IEBC failed to secure its data and public maintained portal then there would be the need and a justification for an audit of all systems of IEBC,” Oichoe states in her affidavit.
Raila Odinga and Kalonzo Musyoka who are the first and second petitioners respectively sought relief in the NASA petition filed on Friday, asking for the first respondent (IEBC) to produce logs from its servers for inspection within 48 hours of the filing.
The two who want the presidential election annulled and a fresh one conducted have also lodged affidavits from two individuals – Mohamed Noor Barre and Ibrahim Mohamud Ibrahim – who say in their respective submissions that they had been appointed as Presiding Officers by the electoral commission.
Ibrahim who says he was appointed the Presiding Officer for Guticha Primary School in Mandera argues in his affidavit that mass irregularities characterised voting in the entire Mandera County including last-minute replacement of polling officials under unclear circumstances.
“On 7th August 2017, I reported together with other clerks for duty. Upon reaching the place of work a clerk of the Commission informed 70 of us that our names had been replaced by others for unexplained reasons. A protest arose and we reported the matter to Rhamu police station,” Ibrahim explains.
“The following day, 8/8/2017, elections proceeded at various polling station conducted by strangers who were acting as presiding officers, but who had not been trained and had not taken the oath of secrecy,” he asserts.
He also cites the movement of the Mandera North Constituency Tallying Centre to the Sub-County Commissioner’s office against a court order directing that the tallying centre remains at Rhamu Arid Zone Primary School as among reasons the credibility of the election was undermined.
A similar supporting affidavit was also filled by Mohamed Noor Barre who argues that the polling station he was in charge of recorded a voter turnout of 100 per cent; something he says in the affidavit is unrealistic.
“At Kalicha Primary School, polling station 2 of 2 polling stations, all registered voters numbering 594 are all alleged to have voted 100 per cent. In truth, these figures were just filled in at the Tallying Centre,” he argues.
NASA Deputy Presidential agent at the National Tallying Centre, Olga Karani, accuses the first respondent (IEBC) and the second (Chairperson Wafula Chebukati) of declaring election results based on figures without the backing of relevant statutory results declaration forms.
“On inquiry, the IEBC declined to disclose the source of the forms or make clarifications why the forms were not processed in accordance with the procedure provided by the Kenya Integrated Electoral Management System (KIEMS),” she states in her affidavit.
According to Olga, the electoral commission failed to address concerns raised by NASA agents, its presidential candidate as well as his running mate, ignoring the role of agents in verification of results before they are declared.
“At the time of declaration and announcement of results by the Chairperson of the First Respondent, the Commission had neither collated or availed any Form 34B and had not addressed any issues relating to the Forms 34A or the results published through its website.”
Key timelines in the 14-day period of determination of presidential petitions are already ticking, the deadline serving of respondents with all documents filed by the petitioners having lapsed Sunday night.
The respondents who include President Uhuru Kenyatta (third respondent) have until midnight Thursday to file responses after which parties will go for a pre-trial conference before hearing and determination of the matter.
With the outcome of the court process expected to be out by September 1, the IEBC’s legal team will seek to prove that it conducted a free and fair process and that in declaring President Kenyatta as having been re-elected, the commission had ascertained that provisions of Article 138 had been fulfilled.
President Kenyatta’s legal team will also be seeking to clear accusations that his campaign tampered with IEBC servers hence the election as claimed by NASA.