Independent Electoral and Boundaries Commission (IEBC) has told Azimio party presidential flag bearer Raila Odinga and his running mate Martha Karua to accept the outcome of the August 9 presidential election and move on.
While asserting that the election was a free, fair, verifiable and credible contest, IEBC lawyer Kamau Karori argued that the commission and the chairman had managed to prove that petitioners were misleading the court.
According to the lawyer, the petitions presented to the court did not challenge the results announced and declared in the polling stations. According to him, these were the same results that were declared by the IEBC chairman Wafula Chebukati.
He said the commission is not about the seven commissioners but a corporate body that also has officers who work at various stages of the electoral process.
"It is clear that the commission refers to the body of officials and employees of IEBC including the commissioners and the secretariat as defined," argued Kamau.
Kamau went ahead to argue that the only person who ought to verify, tally and declare the winner is Chebukati and not the commissioners at a plenary. He denied that the IEBC chairman appointed himself as a national returning officer.
The senior lawyer added that in the Maina Kiai case against IEBC and the 2017 presidential election petition between Raila Odinga and President Uhuru Kenyatta, the Court of Appeal and the Supreme Court found that Chebukati is the national returning officer for the presidential election.
"It is clear from the above cases that the duty of verification is exercised by the presiding officer at the polling station, the returning officer at the constituency level, and the chairperson at the national tallying centre. The chairperson is however assisted by the commission - commissioners, agents, and officers of IEBC in conducting the verification exercise at the national tallying centre owing to the extensiveness of the process and the strict timeline of seven days for the announcement of the presidential election results," argued Kamau.
He said results at the polling station are final and cannot be altered. The court heard that where IEBC found that there were discrepancies, the commission noted the same and submitted the report to the Supreme Court.
At the same time, he said, the commission's role after the results are sent from the polling stations is to accurately tally all the results as received from the 290 constituencies without adding or subtracting what had been declared.
Supreme Court judges - Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice), and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaack Lenaola, and William Ouko heard that the four commissioners who disowned Chebukati's verdict had tried to moderate the results.
"In attempting to moderate or otherwise influence the results declared by the chairperson, the four commissioners were purporting to unlawfully establish a government otherwise than in compliance with the Constitution in contravention of Article 3(2)," he argued. Kamau also explained how the commission arrived at William Ruto being the winner of the contest. According to him, the votes were counted at the polling stations in the presence of the candidates' agents and representatives.
Immediately after, he said, form 34A was filed by the presiding officers in the presence of the candidates' agents and scanned. It is then transmitted to the constituency and the national tallying center. Thereafter the same forms are tallied again in the presence of the candidates' agents. At the national tallying center, the hard copies are verified alongside what is in the commission's public portal and copies of the forms 34A are also given to the agents.
Moreover, agents then tallied and verified forms 34A and with that of forms, 34B, and the agents are shown any errors in the results which have already been recorded on the error form. The chair then populated form 34 C for each polling station then took turns with the other commissioners to announce the results of each constituency.
"The agents of the four presidential candidates were at the national tallying center and were involved. None of them has complained about that process," he said.
According to Kamau, the commission failed to announce the results from 27 constituencies owing to the violence that broke at the Bomas of Kenya.
"The first petitioner cannot, by design, cause or participate in activities including actual violence that rendered it impossible to announce the results of the 27 constituencies and then turn round and try to invalidate the elections on that basis," argued Kamau. The court heard that there was low voter turnout in all parts of the country. According to Kamau, voter turnout was 64.7670 per cent compared to the 2013 elections where the voter turnout was 85.91 per cent.
At the same time, Eric Gumbo told the court the commission had deployed a 'military kind' of a system. According to him, out of the 46,229 Kiems kits deployed by the commission, only 200 failed.
"An A does not connote 100 per cent. The mathematical representation gives us 99.9 per cent and with that then we achieved the constitutional imperatives that were contemplated under Article 86," argued Gumbo. The court heard that a Kiems gadget is locked to a specific polling station, and the entire network is secured through a double layered firewall. That image is encrypted and it is not in the form we imagined to be in form 34A.
Gumbo gave an example of water in a pipe. According to him, the system is such that hydrogen and oxygen are split such that no one makes sense of them.
At the same time, he said, for one to successfully infiltrate the system and manipulate the result, he has to know the voter turnout, which is only retained at the KIEMs kits.
The court heard that there were more than 380 million hits to access the public portal and none of them managed to penetrate.
On the forms, he said, as part of security in the portal, each of the forms is serialized, the time, the date it was received and it gives you a tab to confirm whether there was any alteration.
Meanwhile, Gumbo said the logs indicating that specific people were used to interfere with the results were erroneous.
According to him, the logs that were presented by commissioner Justus Nyang'aya do not speak anything illegal. Those, he said, speak to the ordinary logs that run the systems of the IEBC on day to day basis.
"We have heard allegations. Abdidahir Maalim was one of the returning officers duly gazetted and then he had access to transmit form 34B in the constituency. All those people who were named had been authorised," argued Gumbo.
On Gaedino Omar, he argued that the contract between Smartmatic Limited and IEBC was for the supply and maintenance of the system. He added that it had been agreed that they had to bring the personnel to ensure the smooth running of the election.
Before the election, the court heard they were logged out and none of them were in the system.
Mahat Somane also took the podium. He stated that the numbers relied on in the petitions were erroneous. According to him, the allegation that Ruto did not attain 50 per cent plus one relies on the total registered voters. According to him, the mathematical calculation is wrong. Instead, he said, IEBC based its declaration on the voter turnout for the day.