The nine issues at the centre of Raila-Ruto poll victory dispute

Azimio la Umoja One Kenya Coalition presidential candidate Raila Odinga and President-elect William Ruto. [File, Standard] The Supreme Court has identified nine issues that will either make or break the case by Azimio la Umoja One Kenya Coalition presidential candidate Raila Odinga and his running mate Martha Karua's against President-elect William Ruto, his running mate Rigathi Gachagua, the electoral agency, and its commissioners. The seven-judge bench composed of Chief Justice Martha Koome, her deputy Philomena Mwilu and justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaack Lenaola, and William Ouko first identified technology as a critical issue in the contest. According to them, the question will be whether the technology deployed by the Independent Electoral and Boundaries Commission (IEBC) for the General Election met the standards, integrity, verifiability, security and transparency to guarantee accurate and verifiable results. In their case, Raila and Karua argue that the servers and Kenya Integrated Election Management System (Kiems) kits as deployed by IEBC were incapable of delivering a credible election. "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 body," Raila and Karua's lawyers argue, adding that evidence shows that third parties and senior employees of the IEBC were acting in connivance. In their final written submissions filed before the apex court yesterday, Raila and Karua argue that the presidential election petition was a repeat of the 2017 blunders that led the court to declare that President Uhuru Kenyatta's win was null and void. But in his reply, Dr Ruto argues that Raila and Karua's witnesses lied under oath that the system was hacked and alterations done on forms 34A and 34B when all the candidates had access to original forms uploaded from the polling stations. He also disputed claims that his agents altered and dumped 11,000 forms 34A in the IEBC portal within eight minutes, stating that it was humanly impossible for the bulky forms to upload within a 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," said Ruto On the failure of the Kiems kits, Ruto swears that IEBC had put a complementary system in place to facilitate the identification of voters, and that allegations of low voter turnout in Kakamega and Makueni cannot be attributed to these failures. Chebukati also denies that the system was hacked, saying the system was foolproof and no alterations were done. His claim is supported by IEBC staff Abdi Guliye and Boya Molu. IEBC Chair Wafula Chebukati. [Denish Ochieng, Standard] The IEBC vice-chair Juliana Cherera and commissioners Justus Nyang'aya, Francis Wanderi and Irene Massit, however, argue that the system was infiltrated and the results of forms 34A cannot be guaranteed. The other issue identified by the Supreme Court and also tied to technology is whether there was interference with uploading and transmission of forms 34A from polling stations to the IEBC public portal. The judges found that there is a bone of contention between Raila, Ruto and Chebukati on whether there was a difference between forms 34A uploaded to the portal, the forms 34A received at the national tallying centre, and forms 34A issued to agents at the polling stations. Meanwhile, the court also identified the question of whether the postponement of governor elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba Rongai, and Pokot South constituencies, and electoral wards in Nyaki West and Kwa Njenga resulted in voter suppression to Raila and Karua's disadvantage. Raila and Karua argue that Chebukati's decision to postpone the elections negatively affected the turnout. Chebukati denies this, stating that those areas were affected by a ballot papers hitch. Cherera and her team argue that they were not involved in deciding whether to push for the election in the affected areas. Ruto argues that postponement of governor elections in Mombasa and Kakamega was 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 voter turnout to vote for him irrespective of the postponement." The other issue 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 the number that voted for governors and senators. But the IEBC and Ruto deny this. According to them, the presidential tally corresponds with that of other positions. Azimio la Umoja One Kenya Coalition presidential candidate Raila Odinga. [File, Standard] Then there is the matter of whether IEBC verified, tallied, and declared results as required by Articles 138 (3)(C) and 138 (10) of the Constitution. Raila and Karua argue that Chebukati did not verify, tally, and declare the results from 27 constituencies. According to Chebukati, Mr Guliye was scheduled to announce the results before chaos broke out at the Bomas of Kenya. Ruto also says that numbers from all constituencies were tallied and announced. Then there is the contentious issue is whether Ruto attained 50 per cent plus one votes of all ballots cast on August 9. Raila and Karua insist there is evidence that IEBC's numbers do not add up, and there are instances where forms were manipulated for a Ruto win. They claim that the margin with which Ruto was said to have met the threshold was only 0.49 per cent of the total number of registered voters which was only 69,000 votes. Raila and Karua say that the mathematical differences and errors reveal that votes were systematically recalibrated to benefit Ruto. IEBC, however, asserts that it carried out a clean and fair election, while Ruto argues he beat Raila fair and square. The last issue is what orders should the court issue after hearing all parties. Raila and Karua are seeking a forensic scrutiny, re-tallying, and thereafter be declared the winners. They are also asking the court to find that IEBC is dysfunctional and cannot conduct a credible election. IEBC and Ruto, on the other hand, are asking the apex court to dismiss the presidential petition and confirm that Ruto was validly elected as president-elect.

The nine issues at the centre of Raila-Ruto poll victory dispute

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The nine issues at the centre of Raila-Ruto poll victory dispute

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