NASA presidential candidate Raila Odinga explained to the Supreme Court on Monday why, in his view, the presidential election was a sham.
In five hours, the former Prime Minister’s lawyers employed a four-pronged attack on the August 8 election.
The lawyers’ arguments were anchored in the legal grounding, the authenticity of the documents used in the declaration of President Uhuru Kenyatta as the winner, the conduct of Jubilee Cabinet secretaries, and the law on the ‘tyranny of numbers’.
Lawyer James Orengo opened the attack by laying the foundation of the case. His submissions were that a comparison of all documents in their possession and those that had been submitted by the Independent Electoral and Boundaries Commission (IEBC) indicate the election of Mr Kenyatta is null and unconstitutional.
Mr Orengo, who is also the Siaya senator, argued that some of the forms 34A and 34B which had been supplied by IEBC bore no security features given by the commission earlier.
The security features which were supposed to be employed included anti-copying features and a bar code that would indicate the constituency when scanned.
According to Orengo, the forms that they had identified were different in several constituencies.
His said the IEBC used documents that had been ‘manufactured somewhere’ other than in Dubai by Al Ghurair, the firm contracted to print the ballot papers.
“You will find forms that are generated and are different from constituency to constituency and polling station to polling station,” he submitted.
For example, he said, the President’s name in some of the forms were switched from Uhuru Kenyatta to Kenyatta Uhuru and that of the NASA flag-bearer read Odinga Raila and in other instances Raila Odinga.
In another form also cited by the senator, the name of the President had been segregated to have the last letter away from the other numerals—Kenyatt, a.
“Our complaint is that what IEBC used is not part of the papers packed and shipped from Dubai,” lawyer Orengo said. “The way some of the forms are printed ought not to be the way they are appearing. The election is determined by the documents with the IEBC.”
He was making his submissions before Supreme Court judges David Maraga (Chief Justice), Philemona Mwilu (Deputy CJ), Jackton Ojwang, Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola, and Mohamed Ibrahim.
Raila’s second thrust to invalidate Uhuru’s re-election was submitted by lawyer Otiende Amollo.
In his submissions, Mr Amollo relied on 14 documents presented by his client and a further two that were presented to the court by Uhuru’s lawyers.
Amollo, who is also the Rarieda MP-elect, submitted that they had identified 32 fatal errors which, if considered, will automatically invalidate the August 8 election.
He said close scrutiny of the documents presented to the court and obtained from the commission shows a concerted effort to doctor the documents in order to seal the flaws.
His focus was on the 54,000 forms 34A which were filed in the Supreme Court by IEBC two days after Raila filed his case.
“From our analysis, the IEBC made a courageous effort to remedy defects on what was previously seen,” he said. “In many of the documents before the court, they appear to be correct whereas what we have reads otherwise. IEBC tampered with the prescribed documents after the election.”
He further submitted that returning officers in Mandera East, Isiolo North, Mara, Mbeere North, Yatta, Sigor, Turbo, and Kajiado West were not gazetted.
In total, he argued, 14 constituencies countrywide had ungazetted returning officers.
The seven Supreme Court Supreme judges heard that Uhuru’s total tally would go down by 594,406 votes if results from the affected constituencies are declared invalid. He did not disclose how many votes Raila would lose in the same areas.
Further, Amollo claimed that IEBC did not relay the results as required by the law. He claimed that instead, the results were held at an unknown place, doctored, and then released back into the system.
“The results were coming in batches. They were being held somewhere and adjusted through an error adjustment formula,” he said.
The formula relied on by the Opposition leader to justify that the results were cooked is Y=MX+C, an equation that is used to determine a straight line. In the argument, it was claimed that Uhuru maintained a 11 per cent gap all along.
He claimed that in the August 8 election, y, which is Uhuru’s final outcome, was determined by 1.2045 of Raila’s votes added to a constant 183,456 votes.
This means that in every 1.2 votes that Raila got, the President got an additional 183,465 votes.
“Using the formula gives a clear line which is a statistical impossibility. All you needed to know is what Raila had at any one time and then you would know what Uhuru Kenyatta got,” the judges heard.
He also argued that IEBC started streaming its results as early as 5.07pm, which was impossible as presiding officers were supposed to tally the votes and also make sure that every agent ascertained that they reflected the true will of the electorate.
The judges were also told that IEBC Chairman Wafula Chebukati announced the results without 10,438 forms 34A.
This, according to Raila, translated to seven million votes being left out.
“It is not an irregularity but an election offence for an IEBC officer to make a pronouncement that they know is false,” Amollo said.
On the rejected votes, the court heard that IEBC had different figures. In the public portal, the number was indicated as 403,495, on August 11, the number allegedly decreased to 401,003.
Mr Chebukati was also accused of refusing to announce the rejected votes as required by the law.
The lawyer pinpointed Karachuonyo and Turkana West, Raila’s strongholds, to argue that the Opposition leader’s votes were deducted.
He argued that in Karachuonyo, Raila ought to have received 60,000 votes but IEBC, allegedly, indicated that he had zero results.
In Turkana West, the incumbent allegedly got some additional 18,434 votes against the maximum number of voters in the area which was tabulated to be 31,640 votes.
“There are many grave errors. It appears there was a consistent pattern to increase President Kenyatta’s votes and decrease former Prime Minister Raila Odinga’s votes.”
On the final tally, Amollo claimed there was a variance between what the IEBC announced and what was written on President Kenyatta’s certificate.
According to the lawyer, President Uhuru allegedly got 200,000 more from the announcement.
Lawyer Okong’o Omogeni claimed Uhuru used intimidation, his Cabinet secretaries, and bribes in order to win the electorate’s hearts.
Cabinet secretares Eugene Wamalwa, Mwangi Kiunjuri, and Joseph Mucheru, he said, are State officers and ought not to have engaged in campaigns.
Lawyer Paul Mwangi addressed the issue of tyranny of numbers and urged the court not to consider that President Uhuru Kenyatta has the majority of elected leaders, but to stick to whether the election was done in a fair manner.
“The election is viewed as a political exercise. Instead it ought to be a legal process,” he argued.