The release of the full Supreme Court judgement that annulled the August 8 presidential poll has unfurled the critical moments when the electoral commission dropped the ball.
From lethargic appreciation of court preliminary orders, loose tongues of commission counsels, failure to face up to petitioner’s case to wishing away of petition concerns- the judgment is littered with cases of misadventure on the part of the commission’s attempt to debunk petitioner’s case.
1. Focus on numbers, zero attention to process
Despite the petitioner’s basing their case purely on process, the respondents dwelt on pulling the court to the numbers. In the end, they brushed over the process concerns. In their judgment, the majority judgment appeared to slight the respondents lawyers by stating “elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe.” They went as far as asking reminding the lawyers of “numbers” lesson in school.
2. Failure to supply petitioner with relevant forms
The IEBC failure- in writing- to produce to the petitioner all Form 34B’s and 34A’s after declaration of results appears to have irked the judges. It also lent credence to doubts that the commission had not electronically transmitted the scans in accordance to the law. The commission’s submissions on these were found to have been “disturbing if not startling.”
3. Submitting contradictions for facts to hawk-eyed judges
The judges were clearly unable to come to terms with IEBC submissions that the results transmitted to national tallying centre and broadcast to the world were mere statistics. The claim ended up raising paradox of sorts where judges wondered whether the commission was in admitting a winner was declared without all results while at the same time admitting not all form 34A’s were submitted.
4. Misinterpretation of the Kiai Decision
From their understanding of the submissions by IEBC, the majority judges seemed to suggest that electoral body lumped failure to observe laws of transmission of results on erroneous appreciation of Court of Appeal's review of the Maina Kiai decision. They also faulted Attorney General Githu Muigai for purporting to justify the failures on account of the decision.
5. Admissions made on the floor of the court
The counsels appearing for the IEBC averment that the presidential results were declared on the basis of Forms 34B was found by judges to have “implicitly admitted that not all Forms 34A were available by the time the 2nd respondent declared the “final results “ for the election of the president.
6. Nonchalant reception of court order on scans
The judges order on IEBC to supply all scanned and transmitted Form 34A and 34B from all polling stations on a read only basis with option to copy in soft was not complied in full. It was perhaps the tipping point of the judgment, so much so that judges openly referred to it as one event that “unraveled the puzzle in the mind the of the court.”
7. Concessions made before the elections
The electoral body’s concession ahead of election that it would be unable to electronically transmit results from 11,000 polling centres because they were off the range of 3G and 4G network came to haunt them. The court found that the notice together with IEBC’s notice of complimentary process to transmit the results was enough to invalidate reasons advanced on failure to transmit in those areas.
8. Failure to seize moments
In the majority decision, the judges said they had reserved their order on scrutiny of servers as “golden opportunity” for IEBC to debunk petitioner’s claims. The partial live access they accorded the requests almost out of time was eventually found unuseful to the parties or the court. In the very end of it, the judges made rather queer deduction that “either IEBC’s IT system was infiltrated and compromised and the data therein interfered with or IEBC’s officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data.”
9. Inability to verify the election
Failure by the commission to allow the court full access to its server as order was deduced as a fail in verifiability test. A similar fate befell the finding that the chairman of the commission declared the results without being in possession of all Form 34A’s. “Verification could only have been possible if, before declaring the results, the 2nd respondent had checked the aggregated tallies in Forms 34B against the scanned Forms 34A as transmitted in accordance with Section 39 (1C) of the Elections Act.”
10. Failure to make concession in advance
The failure by the IEBC chairman to publicly concede that he was declaring the results without all forms was picked up by the court as a serious issue. The court even prepared him an imaginary speech conceding that he had not verified the results, blaming the Court of Appeal in the Maina Kiai decision for this failure and directing any aggrieved party to Supreme Court.
11. Over-reliance on election observers
All commission hopes and confidence appeared domiciled in the numerous election observation reports which gave the election clean bill of health. However, the court turned the tables on it declaring that “hardly any of the observers interrogated the process beyond counting and tallying at the polling stations.” They also said interim reports could not be used to authenticate the transmission and eventual declaration of results.
12. Jumbled up response on election materials audit
The form of the physical materials submitted to the commission in a verification exercise presided over by the registrar of the court did not impress the judges. They were found to have numerous flaws from the forms described by the commission in its presentation- not signed, copies, lacking in security features etc.
13. Abundance of caution goof
The deployment of election materials lacking prescribed security features was described by the court as “one of the most glaring irregularities” of the whole process. Commission lawyer had assigned “abundance of caution” status to security features, something that was disapproved by the judges. “What is this Court to make of the fact that of the 290 Forms 34B that were used to declare the final results, 56 of them had no security features?” Where had the security features, touted by the respondent, disappeared to? Could these critical documents be still considered genuine? If not, then could they have been forgeries introduced into the vote tabulation process?