Attorney General Githu Muigai, lawyers Ahmednasir Abdullahi and Fred Ngatia for Jubilee at the Supreme Court on August 28
  • Experts found irregularities in forms 34A and 34B
  • Raila’s legal minds relied on Section 44, 44A on the use of technology in transmission of results and identification of voters to punch holes in electoral process

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The application filed by National Super Alliance (NASA) presidential candidate Raila Odinga to access electronic tallying servers sank IEBC and President Uhuru Kenyatta at the Supreme Court.

The application became the joy for the Opposition and a hurdle for Jubilee and the electoral commission as the Court relied on the finding to nullify the August 8 Presidential election.

Raila lawyers relied on Section 44, 44A on the use of technology in transmission of results and identification of voters, to solidify their case.

They buttressed that the election was swung to favour of the incumbent by use of a computer and the results were not streamed in a simultaneous manner.

This application got IEBC and President Uhuru lawyers’ flat foot as they did not have a way to fight back by issuing advance logs to show authenticity of the system, the firewalls and the passwords used.

In fact, the orders given by the Supreme Court judges on the scrutiny gave the case a new dimension.

The Court, largely relied on the report of its independent experts to make a finding that there was a major fault that invalidated the whole process.

Could not deliver

A report filed at the Supreme Court by Prof Elijah Omwenga, Prof Jose Sevilla and Janet Kadenyi showed that the commission could not deliver information on internal firewall configuration to its servers as ordered by the court.

Scrutiny of the IEBC servers was conducted in the presence of representatives of the NASA, Jubilee and IEBC.

The experts noted that the commission could not deliver certified copies of certificates of penetration tests conducted on the IEBC Election Technology System prior to and during the election.

“We discovered that the documents supplied were not certified and their submission did not conform to Election (Technology) Regulation 10 of 2017,” said the experts.

The audit team further noted that although the commission provided a list of all procured KIEMS Kits, the information on whether they were used or not was not comprehensive.

“The order was that the commission provides a certified list of all KIEMS Kits procured but not used during the elections. The commission complied but information on whether the kits deployed or not deployed was not comprehensive,” said the report.

All the representatives were however, satisfied with the report on polling station allocation of each of the KIEMS Kits used during the elections.

They were also satisfied with information on technical partnerships and agreements between IEBC and other parties and the access they had to the servers.

On the issue of log in trail of users and equipment into the IEBC servers and KIEMS database management system, NASA disputed a soft copy of logs provided and demanded access to the servers.

Nasa lawyers James Orengo and Pheroze Nowrojee

“The commission should have demonstrated that the logs came from them by allowing all parties to have a read only access and to copy the logs. They allowed live access without the ability to access the logs or even view them but the request was not granted,” noted the experts.

The experts noted similar issues with the access to IEBC public portal from August 5, saying the commission allowed live access but did not give the parties access to the database logs.

The commission however complied with the order requiring disclosure of the number of servers in their exclusive possession, but declined to disclose the configuration of the internal and external firewall.

The experts noted in the report that the refusal was not justified, given that the request by NASA for configuration of the internal firewall was genuine and could not affect the vulnerability of the IEBC server systems. The evidence before the Supreme Court, on the failure by IEBC to give NASA agents a chance to scrutinise the system used to transmit the results also made matters worse for IEBC.

The Chief Justice had earlier warned that either party that does not comply with court orders would have themselves to blame.

“The court was satisfied that the first respondent committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court,” the court found.

A close look at the case and the court papers, IEBC and Jubilee largely relied on the will of the people other than defending the integrity of the system.

President Kenyatta also depended on reports from the international community observers who gave the election a clean bill of health.

He quoted Elog, the Commonwealth representatives, and former US Secretary of State John Kerry, who unanimously endorsed the process after visiting various polling stations in the country.

Kerry however, left out the issue of the transmission system integrity.

IEBC on the other hand downplayed the issue of the system, terming it just a bus.

It argued: “All it did was to transport the result from one place to another. It did not generate any result.”

However, the IEBC did not counter by giving evidence on how it secured the bus from accidents.

A four-judge majority led by the Chief Justice David Maraga, Philomena Mwilu, Isaac Lenaona and Smokin Wanjala ruled that the commission failed in the transmission of the results.

Correct errors

Secondly, the IEBC and President Kenyatta lost on the basis of the Court of Appeal case which was filed by activist Maina Kiai.

President Kenyatta never participated in the case on the finality of the announcement of a winner. On the other hand, IEBC Chairman Wafula Chebukati blamed the court for taking away his powers to correct errors in the forms presented to him from the polling stations and constituencies.

The court had ruled that nothing, even a comma could not be changed at the national tallying centre.

The Court of Appeal declared that IEBC should employ diligent returning officers to ensure that they relay factual results to the national tallying centre.

The court also ruled that verification is only meant to ensure that the number of votes cast, spoilt and those remaining add up to the total number of ballot papers issued to a particular polling station and thus there should be no alteration on the number of votes.

NASA legal team found that forms 34A and 34B were either not signed or did not have security features.