Lawyer Eric Gumbo: Raila has not tabled forms 34A that prove results were changed

IEBC was transparent in the transmission of presidential election results, the commission's lawyer Eric Gumbo has told the Supreme Court.

Gumbo is one of the lawyers representing the commission in a presidential petition, which is seeking to overturn the declaration of William Ruto of UDA as the president-elect.

In his submissions before the court, Gumbo said that a decision by the Supreme Court in 2017 that saw the court overturn the election of Uhuru Kenyatta and his then-deputy William Ruto ordered IEBC to have a public portal in which anyone who wished to follow the presidential results could do so.

"The commission, in re-conceptualising or reconfiguring its electoral architecture, gave a public portal for people to be able to follow, thereby meeting the constitutional imperative of transparency," he said.

He said that this move allowed political parties and individuals to follow the results from wherever they were, all they needed was internet connectivity.

According to Gumbo, if private citizens were in a position to follow the results, then they would have flagged issues with the relayed results, adding that the different political parties had agents and observers in polling stations whose task was to verify the results before there were transmitted.

He said that the availability of agents and observers at the different polling stations meant that they should have been in a position to pick out errors that may have risen from the process and use that to communicate to the party's presidential agents to raise the matter before the final verification is done and the results announced at the National tallying centre.

On the question of technology failure, Gumbo, who was relying on an affidavit by IEBC's ICT manager Michael Ouma, says that 46,201 KIEMS kits (sic) out of 46,229 used in the election worked.

"If out of 46,000 KIEMS kits only 200 do not work, would I say I have failed?" he posed.

He said that the mathematical calculations on the success of the kits shows that they had a 99 per cent success rate, saying it achieved the constitutional imperatives under Article 86.

Basing his argument on Ouma's affidavit, he said that the KIEMS kit security features do not allow it to be used in another polling station other than the one assigned.

He said the system used to transmit the results was secured with firewalls for security, and that the forms were encrypted.

According to Ouma's affidavit, Gumbo said that the security of the results, as they were being transmitted, was guaranteed, adding that IEBC had witnessed more than 380 million hacking attempts that were unsuccessful.

He said that the IEBC results transmission system was not accessed by any third parties who may have interfered with the final results because it was impossible.

"When eventually we have an opportunity to look at the details we have submitted, including the KIEMS returns, it will be apparent that there was no such intrusion," he said.

He said that it was easy to tell whether the forms had been interfered with since once a form is uploaded online it gets a digital signature and the time of uploading is also recorded.

This, he said, means that if it were to be tampered with in the process of transmission before getting to the national tallying centre, then it would have been easy to pick the delays and pick out the exact time there was interference.

On hacking claims linked to Venezuelan nationals, Gumbo said that the contract between IEBC and Smartmatic provided for the supply and maintenance of KIEMS kits, hence their presence in the country, adding that before the elections they were all logged out of the electoral system.

He challenged the petitioners to provide evidence how the system was breached and the level of interference.

"There is not a single form that has been presented which appears to suggest, even in the lightest of ways, that there was any interference," he said.

He said that if the court was to believe the claims of interference, then the numbers would have been altered.

However, he said, there was no evidence from the petitioners on a change in the numbers attained by the presidential candidates at the polling station and the results announced at Bomas of Kenya.

Gumbo called for holding to account people who have presented evidence that will turn out to be false or misleading to the court.

He said that after the forms from the polling stations had been uploaded to the IEBC portal, the returning officers from the various polling stations transported the physical forms for verification by IEBC's ICT team, adding that the verification was done in the presence of the all parties' agents, and that the errors noticed would be corrected to everyone's satisfaction.

"The error report has been availed (sic) to this court, but of significance is that as they were preparing that error report, a copy of that error report was also availed to the agents of all the parties," he said.