Lawyers Defend IEBC In Day 2 Supreme Court Hearing [HIGHLIGHTS]

Lawyers representing the Independent Electoral and Boundaries Commission (IEBC) came to the aid of the commission during the second day of the hearing of the presidential election petitions.

Azimio la Umoja leader Raila Odinga's legal team led a determined assault against the commission on Wednesday, August 31 but lawyers representing the commission had countered their claims with new findings of their own at a time limit of three hours.

The day began when the Supreme Court dismissed a plea by Raila's team to issue an order to the IEBC to grant full access to its servers, noting that the process of compliance was almost done.

Senior Counsel Philip Murgor on Thursday, September 1 raised concerns that the IEBC gave access to only one server. Justice Isaac Lenaola responded by saying that it would only allow Raila's legal team and the IEBC to submit their claims once it receives a report from a technical team dispatched by the court to oversee the supervised access to servers

"We received a full report from the technical team that was at IEBC and we were informed that the process of compliance was completed last night. As far as our team is concerned the process has been finished," Lenaola responded.

The Supreme Court judges hearing the presidential petition on September 1, 2022. /COURTESY

Githu Muigai

The former Attorney General is leading IEBC's legal team in seeking to prove that the presidential results announced by the chairperson, Wafula Chebukati, were the actual results and not according to claims that the process was marred by irregularities.

He argued that the petition has absolutely nothing to do with any legal lacuna; that it is about numbers. He noted that the petitioners have tried to argue every other point except the numbers.

Muigai added that since the annulment of the presidential election in 2017 IEBC overhauled its entire electoral process procedures with the guidelines provided by the court. 

"There is nothing wrong with IEBC and Wafula Chebukati. There is something very wrong in the way the persons who participate in the electoral process accept winning or losing, that’s the problem," he addressed.

Muigai noted that the election was tantamount to errors just like any other activity since it was conducted by human beings, thus human errors are expected in conducting the process.

"If this election is badly flawed then this court will have to find that every MCA, MP, Senator and Governor was not properly elected and the whole government of Kenya should be constituted afresh," he suggested.

Kamau Karori

Karori argued that the four breakaway IEBC commissioners (Juliana Cherera, Francis Wanderi, Justus Nyang'aya, and Irene Masit) are members of the commission and not the commission, adding that when reference is made to the commission, it is that body cooperate that is referred to.

He added that the process of conducting an election is a statutory process and that it is not an issue left to determination by the commissioners in a meeting as plenary as they have suggested.

"The decision as to who will be the leader of this country is made at the polling station. The commission agents who declare the results are just doing their job," he argued.

On the four commissioners, Karori exposed that before the ballot papers were brought, the quartet had travelled to Greece to review and see how the printing was going on and that they were the ones who represented the commission in Greece.

"An interesting question was asked, how can a hand-written document be altered? It is also important to note that agents of the presidential candidates were present at the national tallying centre and participated in the process of tallying and verification none of them has sworn affidavit complaining about the process," Karori noted.

Karori accused some members of certain political parties of deciding that it was time to stop the declaration process that had already started, referencing the chaos at Bomas of Kenya on Monday, August 15 whereby Kenyans watched in horror on TV as members confronted and assaulted the chairperson and threw him down the pulpit.

Eric Gumbo

Gumbo argued that Form 34A has eight internally identified security features so that the original form cannot be confused with any other form and whatever happened at the polling station remains an authentic representation of the will of the people.

"As to whether the technology IEBC used in the general election was successful; 46,201 KIEMS kits worked out of 46,229, this is more than 99 per cent. Even in our education system, an A is not 100 per cent," he noted.

Gumbo noted that the entire network through which election results are transmitted is secured with double firewalls and that for somebody to intercept, they must have information on voter turnout of that day of every polling station data they intercept.

In defence of the Venezuelans, Gumbo argued that the contract between Smartmatic International and IEBC was for the supply and maintenance of the infrastructure that they had and that it then meant that they had to bring their personnel. He added "before the election, these people were logged out of the system."

Mahat Somane

The IEBC counsel noted that the commission will leave their portal open for a year for anyone alleging anything (that other forms were uploaded by people not contracted by IEBC) to attempt to upload forms.

"We have acknowledged the data entry error made in 2 stations in Kilifi and 1 station in West Pokot. The is an error of 110 in Form C.

"We have done an error report for each polling station in the country. What Kenyans voted on 9th August is what was transmitted and announced by the IEBC chairman," he addressed.

Somane questioned a submission by Julie Soweto on Wednesday, August 31 whereby she cited Kirinyaga County where votes cast for Governor and President had a difference of 23,550 votes in favour of the latter.

"The submission made Julie Soweto alleging 33 per polling station stray ballots in Kirinyaga county, I don’t know what numbers they’re using; an old litigation strategy in numbers for shock and awe?" he posed.

He added that allegations relating to forms in the portal being different from what their agents have are an attempt to present the court with evidence that it was forged and necessary actions should be taken against any officer who presented those documents.

Somane displayed figures before the court in PowerPoint format, noting that by the time the polling stations were closed on August 9 at 7 pm, the KIEMS kit had identified 12,065,803 million voters out of the total registered voters captured in the KIEMS kit of 21,481,652, which is 56.1679 per cent turnout.

By 8:45 pm later on the same day, the KIEMS kit had identified 13,731,215 million voters, representing 63 per cent of the total number of valid votes in the KIEMs kit register. According to him, the announcement was based on the figures from the KIEMs kits and that they had not added votes from Prisons and the Diaspora polling centres

“The voter turnout announced at the national tallying centre at various periods before the declaration of results is calculated based on the reporting polling stations as per the KIEMS kit and not on the total persons in the register as alleged,” Somane said.

"To the question of 50%+1, the court made its determination in 2013 and 2017. Get over it," Somane added, much to the amusement of the court.

Abdikadir Mohammed

Abdikadir criticised the 4 IEBC commissioners noting that their affidavits presented negligence on their part or lack of awareness of their functions.

He provided one of the top highlights of the hearing when he played a video clip showing fracas at Bomas that he claimed prevented IEBC from announcing results from 27 constituencies. This is after the petitioners had alleged that results from these constituencies had not been tallied.

Watch the video courtesy of NTV:

Abdikadir Mohammed plays a video clip showing fracas at Bomas that he claims prevented IEBC from announcing results from 27 constituencies; petitioners alleged results from these constituencies had not been tallied. #Decision2022 pic.twitter.com/V98itmyG8u — NTV Kenya (@ntvkenya) September 1, 2022

He also claimed that IEBC staff members were apprehended by the DCI officers, posing “Why would the ATPU be involved in the tabulation and verification exercise at Bomas?”