Philip Murgor: Chebukati's PA accessed results transmission system 1,743 times

Senior Counsel Philip Murgor makes his submissions on the Presidential Election Petition at the Supreme Court. [Courtesy: Judiciary]

On the first day of the trial of the presidential election petition, lawyers representing the petitioners have made allegations that taint the technology used by the IEBC during the August 9 polls.

Petitioners Raila Odinga and Martha Karua argue the technology used by IEBC was corrupted, manipulated and tainted.

Consequently, the results declared by the commission’s chairperson Wafula Chebukati, they submit, were not objective and representative of the people’s will.

Through their lawyer, Senior Counsel Philip Murgor, Odinga and Karua aver that the August 9 technology lacked confidentiality, integrity, and security.

According to the lawyer, the IEBC servers were accessed by unauthorised people.

“It came out that somewhere, somehow, in the Karen suburb, there was a group of about 50 people who had access to the ICT systems of IEBC. These people were intercepting results before being uploaded to the public portal,” Murgor told the Supreme Court.

Murgor told of server penetration by hacking and illegally-granted access to the IEBC system by known and unknown people.

The matter of the three Venezuelans also came up, with Murgor telling the court they were involved in the malpractice.

“The statement by the DCI regarding the Venezuelans, is not a matter that can be taken lightly and wished away by the chairman of the IEBC,” he said.

Penetration of IEBC system

To support his case, Murgor submitted to the court several affidavits, including those of John Githongo and George Njoroge.

“In his affidavit, Githongo talks about the illegal access into the system and manipulation of the presidential results. Githongo produces evidence of a video recording, where he witnesses how a young person illegally and easily accesses the IEBC system.

“John Githongo, in his second affidavit, further provides actual logs that were used to show access to the system,” said Murgor.

He further laid claim of access to the IEBC server in the case of Njoroge.

“There was an illegal, malicious and unauthorised existence of commission staff [members], who are not officially gazetted and mandated to be part of the electoral process. They, however, had access [to the IEBC’s transmission system]. One of them is Wafula Chebukati’s personal assistant.

“There was evidence of downloading and conversion of the forms from the system and, thereafter, uploading them with new information,” he said.

According to Murgor, Njoroge’s report makes claim of back-tallying of the presidential election results.

“There was overwhelming evidence of back-tallying of presidential results. This means that a Form 34C was being generated with a desired result and, thereafter, what seemed to happen was a process of going backwards to change Form 34 B and 34A to give the result that was desired. This happened continuously. What was obvious was that the system was only supposed to be forward-going and not backwards,” said Murgor.

Murgor told the judges there was a Form 34C produced before the final announcement.

“As of 12th August, 2022 at 15:48 hours, a Form 34C had already been generated. What was the business of anyone within that system generating a Form 34C? We were two days away from the final announcement,” he said.

The petitioners further claim that IEBC personnel, who were not gazetted for the purposes of restricted and accountable access to the system, were granted access to the system.

“In particular, the personal assistant of IEBC chairperson Wafula Chebukati, Dickson Kwanusu, is granted access. While we may not see the fingerprints of Chebukati in the ICT system, we see his palm, his much larger presence through the actions of his key aide. Indeed, when you study the system, you’ll find that Dickson Kwanusu performed a purported verification process of [forms] 34A 1,743 times,” said Murgor.

Murgor referred to evidence by other forensic expert reports.

Some of the evidence adduced indicates that some foreigners, throughout the process of counting, were given “super administrator” rights. He also said there were a total of six unauthorised users accessing the system.

“Four IEBC commissioners have stated categorically that the system was controlled by one person, Chebukati, and they were kept in the dark. [Commissioner Justus] Nyang’aya, who was in charge of ICT, was also shocked that foreigners were controlling the system, and had access during, and after the election,” he said.

“The technology applied by the IEBC for the conduct of the 2022 General Election completely failed the standards of a secure, transparent electronic voting system, and thereby yielded unverifiable, inaccurate and invalid results. This election was controlled from everywhere, except IEBC,” he said.