, NAIROBI, Kenya, Nov 14 – It was a case of déjà vu as the Supreme Court for the second time in 80 days, sat down to determine the validity of President Uhuru Kenyatta’s declaration as president-elect by the Independent Electoral and Boundaries Commission.
The cast remained pretty much the same with the exception of IEBC which swapped Paul Muite and Paul Nyamodi for Waweru Gatonye and Kimani Muhoro for its lead counsel.
The matters canvassed before the court on Tuesday afternoon also reverberated with those canvassed before it the last time as Njonjo Mue and Khelef Khalifa (petitioners) sought access to the presidential election result forms, server and KIEMS logs, citing discrepancies in the forms transmitted from Murang’a and Garissa and flagging variations in the number of voters registered and voter turnout for the October 26 fresh presidential poll.
“There is evidence of manipulation of the results in a number of polling stations taken as a sample. The results in polling stations in Garissa and Murang’a recorded in Forms 34A have been altered and/or manipulated in most cases to inflate the total number of votes cast and the votes cast in favour of the 3rd respondent (President Uhuru Kenyatta) results in a number of polling stations taken as a sample,” the application reads.
In her oral submissions, Julie Soweto acting for the applicants went into a bit of detail into what said discrepancies are:
“In respect of Murang’a county, the evidence that we have is that the numbers that are on those forms 34A do not tally with the numbers that were published in the forms 34B or in the portal by IEBC. In respect of Garissa county, the forms that we have exhibited all show alterations that are evident by hand.”
“An example is a form 34A from ASK Showground (Murang’a) that shows that the original number of the votes that were given to Uhuru Kenyatta were 72 but a three has been added before the 72. At the end we have total number of valid votes cast, the original was 74, the form that we have now shows three has been added to make it 374.”
“With the Garissa forms that is the same case, where all the forms have been altered. The only way to verify the actual number of votes that were cast or recorded or the number of persons who turned up to vote is through a scrutiny of the KIEMS kits,” Soweto submitted.
Immediately following the October 26 presidential election, the IEBC Chairman Wafula Chebukati himself, wrote to the Director of Public Prosecutions asking that the allegations of collusion made by the observer group Kura Yangu Sauti Yangu – of which Mue and Khalifa are party – in their post-election report, be investigated.
That particular correspondence was not in contention when parties to the three presidential election petitions appeared before the Supreme Court on Tuesday, but leaked internal memos between the Commissioners were.
President Kenyatta through his lead counsel Fred Ngatia, sought to have the internal memos expunged from the record on the grounds they were illegally obtained and therefore fruit of the poisonous tree.
IEBC, through lawyer Kimani Muhoro, supported his submission arguing that the leaked memo from Chebukati to his CEO Ezra Chiloba for instance, demanding an explanation for the failures of the August 8 poll, was one sided and is therefore not a true representation of the runnings of the Commission.
It was however Soweto’s contention that said memos were largely canvassed in the public domain and any concerns surrounding the authenticity of the memos would be cured by their application for an order of scrutiny which includes:
“Copies of minutes of all plenary deliberations of the IEBC relating to the fresh Election from September 1 to October 31, 2017 (both days inclusive).”
Among the applications the Supreme Court dealt with on Tuesday, included one by President Kenyatta asking that the National Super Alliance – whose presidential candidate Raila Odinga withdrew from the October 26 race – be struck out.
It also heard from NASA on why they’ve taken the view that the petition filed by the Institute for Democratic Governance, seeking to have Odinga and his running mate Kalonzo Musyoka found guilty of electoral offences, doesn’t qualify.