NAIROBI, Kenya, Aug 29 – The Independent Electoral and Boundaries Commission’s legal counsel was on Tuesday hard pressed to explain why Forms 34B from the 290 constituency presidential election result, plus the Diaspora were not standardised.
Chief Justice David Maraga sought to know why all the forms did not possess standardised security features after a report filed by the Supreme Court Registrar Esther Nyaiyaki showed that a number of the forms did not possess watermarks or serial numbers.
The IEBC’s response through its lead counsel Paul Muite was that it was not a legal requirement and that it had sought to include them out of “an abundance of caution.”
The response elicited laughter and led Muite to ask for a “peaceful environment” within which he could make his submissions.
When making his submissions on Monday, the petitioner Raila Odinga – through his lead counsel James Orengo – sought to know what happened to the result forms the presidential candidates’ agents witnessed being printed in Dubai.
The report, Orengo submitted, was the much asked about ‘smoking gun,’ after he took the court through the irregularities that emerged in the Form 34B scrutiny exercise.
He submitted that five of the Forms 34Bs including for Nyali and Kisauni were not signed by the Returning officers.
It also emerged that the Isiolo South form was not signed by the agents which President Uhuru Kenyatta’s legal counsel explained was because the Returning Officer had to travel 150 kilometres to access a printer.
He also contested the report’s finding that the Kisauni RO did not sign the form submitting that it was the registrar’s report itself that was in error.
Muite also amused his audience when attempted to explain why Odinga and President Kenyatta’s agents had such a hard time accessing the IEBC’s servers as ordered by the court on Monday.
He submitted that while the IEBC’s servers were in Europe, the host company was based in New York.
This, he submitted with a light touch, went to prove how difficult it would be to hack into them as Odinga had alleged.
He did not, however, explain Orengo’s submission that the limited scrutiny of IEBC’s servers showed that the IEBC Chairman Wafula Chebukati’s access codes were used to delete data.
And while both Muite and Ngatia conceded that there were indeed errors evident on the forms, they said it showed that IEBC had not sought to ‘sanitise’ them as submitted by the petitioners.
Ngatia went on to submit that proof of the forms’ legitimacy is in the numbers; in Kisauni and Likoni for instance, he told the court, Odinga secured many more votes than President Kenyatta.
After hearing the parties, the six judges who sat on Tuesday without Judge Mohammed Ibrahim on account of illness, retired promising to deliver their judgement on Friday within the 14-day time limit set by the Constitution.