Divided or unanimous? Scenarios in petition judgment by Supreme Court

Pinky pinky ponky, a juvenile song, became an all-grown-up tune. All this legal comedy and wit is what the seven Supreme Court judges will have to sieve through to separate the wheat from the chaff.

Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaack Lenaona, and William Ouko said they needed God to discern the issues and hand Kenya a verdict she deserved.

Come Monday, the bench will either hand a unanimous judgment that will have concurring verdicts on the side. A concurring judgment means that a judge will agree with another on the nine issues set by the court.

The final verdict will be read by the president of the court and will seal the fate of President-elect William Ruto and his opponent Raila Odinga.

On the other hand, the court may not agree. Some will either uphold the presidential vote and others will dismiss it. According to the rules of the court, the majority decision will be the finding of that court. It will only need a majority of four to tilt the scale of justice to either side.

In 2017, a majority of the then Chief Justice David Maraga, Mwilu, Smokin and Lenaola carried the day in annulling President Uhuru Kenyatta's win. The minority were Justices Jackton Ojwang (retired) and Njoki.

The Supreme Court may allow the petitions and invalidate the declaration by Chebukati on August 15 or dismiss the eight petitions by a majority. They may also not be unanimous on the nine issues, leading to separate judgments by each one of them.

At the heart of the case is the technology deployed by the commission and whether it compromised verifiability, security and transparency of the results.

The issue of whether the Kenya Integrated Election Management System (Kiems) met the standards and integrity will be central to the judges' determination.

This will boil down to whether, in the eight petitions, there was evidence that the system was hacked and infiltrated, manipulated and the forms that were sent from the polling stations tampered with.

At the same time, the judges will determine whether there were at least 508,647 ghost voters and if 1.6 million people voted outside the gazetted time. Busia senator-elect Okiya Omtatah said Kiems kits data revealed that there were those who voted on August 10, a day after the election.

However, IEBC lawyer Mahat Somanesaid the numbers sent by the kits followed a delay in network. According to him, the kits were sending data after every two hours.

Third parties

In their case, Raila and his running mate Martha Karua argued that the servers and kits as deployed by IEBC were incapable of delivering a credible election. According to them, servers were infiltrated by third parties and forms 34As manipulated.

Their lawyer Julie Soweto said Kiems kits had similar serial numbers and forms bore the names of Venezuelan Jose Camargo.

"The election and the 'result' purportedly declared therefrom unilaterally by the 2nd respondent (Chebukati) was so badly compromised that it cannot be characterised as that of an independent agency," the court heard.

Raila and Karua lawyers added that evidence shows that third parties and senior employees of the IEBC were acting in connivance.

In their submissions filed before the apex court on Friday, Raila and Karua also said what transpired was a repeat of the 2017 blunders that led to the court declaring that President Uhuru Kenyatta's win was null and void.

2017 poll

"The conduct of the 2022 presidential election must therefore be framed against the backdrop of what happened in 2017 and the following warning that this court sounded when it annulled the presidential election conduct," Raila and Karua's other lawyer James Orengo argued.

They argue that Prof Walter Mebane found that at least 5,832 of 44,948 forms alleged to be polling stations are classified as e-forensics fraudulent. In his reply, Ruto argued that Raila and Karua's witnesses lied under oath that the system was hacked and alterations done in Forms 34A and 34B when all the candidates had access to original forms uploaded from the polling stations.

His lawyer Muthomi Thiankolu argued that the case was similar to tragicomedy or the story in the novel kusadikika.

Ruto also disputed claims that his agents altered and dumped 11,000 Forms 34A in the IEBC portal within 8 minutes, stating that it was humanly impossible for the bulky forms to upload within the short time.

"Our conclusion is that the petitioners falsified logs in support of their claims that we had an external address to hack into the IEBC system and infiltrate it with altered forms. They have submitted similar logs as the ones they did in 2017 to mislead the court," replied Ruto's lawyer.

On the failure of the Kiems Kits, Dr Ruto swore that IEBC had put a complimentary system in place to facilitate identification of voters and that allegation of low voter turnout in Kakamega and Makueni cannot be attributed to the failures.

Chebukati also denied that the system was hacked. According to the commission's chair, the system was secure and no alterations were done. This is a claim supported by his faction; Abdi Guliye and Boya Molu.

However, IEBC vice chair Juliana Cherera, commissioners Justus Nyang'aya, Francis Wanderi and Irene Massit argued that the system was infiltrated, even by foreigners and the results on forms 34As could not be guaranteed.

The other issue the court will settle and also tied to the technology is whether there was interference with uploading and transmission of forms 34A from polling stations to the IEBC public portal. In addition, judges found that there is a bone of contention between Raila, Ruto and Chebukati on if there was a difference between Forms 34A uploaded on the IEBC public portal and the Forms 34A received at the National Tallying Centre, and Forms 34A issued to the agents at the Polling Stations.

Meanwhile, the court also identified the question of whether the postponement of governorship elections in Kakamega and Mombasa counties, parliamentary elections in Kitui rural, Kacheliba Rongai and Pokot South constituencies and wards in Nyaki West in North Imenti and Kwa Njenga in Embakasi South resulted in voter suppression to Raila and Karua's disadvantage.

Voter turnout

In the case, Raila and Karua argued that Chebukati's decision to postpone the elections had an effect on the turnout. Chebukati denied it, stating that those areas were affected by ballot papers hitch and not deliberate.

However, Cherera and her team argued that they were not involved in deciding whether to push the election in the affected areas.

On the other hand, Ruto argued that the postponement of elections in Mombasa and Kakamega were not deliberately done to deny Raila votes from his perceived strongholds, and that he had no hand in the postponement.

"The only logical conclusion is that if it is true those two counties are his strongholds then there would have been a higher number of voter turnout to vote for him irrespective of the postponement," said Ruto.

The other issue at the heart of the court battle is whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions. Raila and Karua identified that in some areas, there were instances where the number of those who voted for president exceeded governors and senators.

However, EIBC and Ruto denied this. According to them, the tally corresponds with that of other positions. The other issue is whether IEBC verified, tallied, declared results as required by Article 138 (3) (C) and 138 (10).

In the case, Raila and Karua argue that Chebukati did not verify, tally and declare the results from 27 constituencies. Ruto in his reply, argued that all constituencies were tallied and announced. However, Chebukati stated that the results were not announced before the declaration of a winner. He alleged that Guliye would have announced the same but there were chaos at the Bomas of Kenya.

50 per cent plus one

The last contention is whether Ruto attained 50 per cent plus one vote of all the votes cast on August 9. Raila and Karua differed with IEBC and Ruto over this. According to the two, there is evidence that IEBC numbers do not add up and that forms were manipulated for Ruto's win.

They claimed that the margin with which Ruto was declared to have met the threshold was only 0.49 per cent of the total number of registered voters and which was only 69,000 votes. Raila and Karua argued the mathematical differences and errors reveal the votes were systematically recalibrated in order to benefit Ruto.

At the same time, Omtatah faulted IEBC for rounding off the final tally to two decimal points. According to him, if the total number of persons who voted is divided against the four candidates, it will reveal that he got 49.99962402 per cent and not 50.01 per cent.

IEBC asserted that it carried a clean and fair election while Ruto argued he beat Raila fair and square.

The last issue is what orders should the court issue after hearing all parties. On this, Raila and Karua are seeking forensic scrutiny, a tally and thereafter be announced as president-elect and deputy. At the same time, they are asking the court to find that IEBC is dysfunctional and cannot carry a credible election.

On the other hand, IEBC and Ruto are asking the highest court in the land to dismiss the presidential petition and affirm that the DP is the winner. The Supreme Court verdict is final.