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The numbers do not lie: How IEBC lawyers won Supreme Court battle

Respondent lawyers, Kamau Karori and Prof Githu Muigai at Supreme Court on  September 01, 2022. [Samson Wire. standard]

In the end, the numbers mattered. When the electoral commission was asked to reply to loads of allegations, it chose to defend its numbers.

The commission’s lawyers burnt the midnight oil to find proof that the figures reflected the votes cast for President-elect William Ruto on August 9.

The numbers do not lie, said Githu Muigai, the lead lawyer for the Independent Electoral and Boundaries Commission (IEBC).

Yesterday, the Supreme Court unanimously agreed that the numbers, as presented by IEBC, tallied and represented the will of the people that Dr Ruto won.

Prof Muigai, Kamau Karori, Eric Gumbo, Mahat Somane, Abdikadir Mohamed and Peter Wanyama relied on numbers, used video clips, evidence by commission’s ICT experts and returning officers in their bid to debunk the allegations lodged by Azimio presidential candidate Raila Odinga and his running mate Martha Karua.

Githu set the ball rolling. While laying the ground for the other team members, he argued that the case is about numbers and facts.

According to him, the petitioners who included John Njoroge, Peter Kirika and Youth Advocacy Africa and Khelef Khalifa tried to impeach IEBC’s processes but failed to find a fault on the numbers that Chebukati used to declare Ruto winner.

Other petitioners are George Osewe, Ruth Mumbi, Grace Kamau, David Kariuki, Okiya Omtatah, Nyakina Gisebe, Victor Okuna, John Maina, Juliah Nyokabi, Joseph Mutua and Simon Mwaura.

The former Attorney General asserted that the claims brought against the commission and Chebukati were unfair vilification.

Githu dug into Kenya’s history on how Chebukati’s predecessors were treated. He stated that Zacchaeus Chesoni, Samuel Kivuitu and Issack Hassan went through the same path and were unceremoniously hounded out of their office.

“It is made worse by the fact that the petitions make allegations of criminal nature, fraud, tampering with election materials and conspiracy to unlawfully change an election outcome and implied treason, all that without a shred of evidence. This gentleman was being vilified because of doing what he was told to do in the Maina Kiai case. Justice Zacheous Chesoni, Samuel Kivuitu, Issack Hassan and now Chebukati…None of them have left the office without being vilified,” Githu submitted.

While imploring the Supreme Court to ask governors, senators, MPs who were prosecuting the petition on behalf of Raila and Karua if they were happy with their win, Githu said if it were true that the election process was irredeemably flawed, it meant that all the other seats had a similar problem.

“This is a petition about facts, about what happened, when, where and with what consequences. This petition is ultimately about numbers. The petitioners have tried to argue about everything else but not numbers. We conducted a proper, fair, constitutional, legal, impartial, election.

Great eminence

“Several counsel who were before me urged you to find that this election was irretrievably flawed. What would be the consequence of that? First, you have been addressed by counsels of great eminence, in this court as we sit here, there are no less than three governors, senators addressing you elected under this election. I would plead to you to ask counsel whether they are happy with their own election,” said Githu.

According to him, after IEBC learnt from the 2013 and 2017 elections, it upped its game this time round. He said the 2022 contest is the fairest so far. He stated that there is nothing about ambiguous laws.

Githu in a bid to convince the court that his clients had done a thorough job detailed what the commission had done in the last five years.

He said it had conducted post-election evaluation, implemented the recommendation of the evaluation, done legal and policy reforms, reviewed its strategic plans, developed an elections operations plan and developed a boundaries review operations plans.

In addition, he said, the commission had continuously registered voters, procured strategic and non-strategic materials and went ahead to resolve nomination disputes.

“Unlike the previous presidential petitions, the matter before you does not turn ambiguous electoral laws. The matter before you turns singularly on facts. It is on this basis that we shall aid this court with the facts upon which this court ought to apply the now clarified laws,” he argued.

He was of the view the problem is not IEBC, instead, it is the political players who will not accept defeat or a win. His assessment to the Raila-Karua case, Kamau and Youth Advocacy’s cases was that they were just theoretical inferences and sweeping statements.

He argued: “I conclude that this is the fairest. This was an open and fair election. Was this a perfect election? No, because there is nothing that is conducted by human beings is perfect. It has not been demonstrated. This is one of the few elections petitions that is full of hypothesis, innuendos, generalities and nothing of probative value. There is nothing wrong with IEBC, there is nothing wrong with Chebukati, there is everything wrong with the people who participate in the electoral process to accept winning or losing.”­­­­­­

Githu was defending IEBC and Chebukati during the second day of the hearing by the Supreme Court judges Martha Koome (Chief Justice), Philomena Mwilu (Deputy Chief Justice) and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

Karori, while asserting that the election was a free, fair, verifiable, and credible contest, argued that the commission and the chair had managed to prove that the petitioners were misleading the court.

According to the senior 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.

He noted that 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.

Karori argued 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 chair appointed himself the 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, i.e., the 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 Karori.

He said that 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.

According to Karori, 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 low voter turnout affected all parts of the country. The turnout was 64.7670 per cent compared to 2013 when it was 85.91 percent.

Gumbo told the court the commission 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 percent. The mathematical representation gives us 99.9 percent and with that then we achieved the constitutional imperatives that were contemplated under Article 86,” argued Gumbo.

The court heard that Kiems kit is locked to a polling station, and the entire network is secured through a double layered firewall. That image is encrypted and isn’t 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.