Supreme battle: Lawyers clash over poll server logs, ballot papers audit

Lawyer Kamau Karori, Githu Muigai, Mahat Somane and Dennis Nkaricha consult during the presidential petition at the Supreme Court on September 2, 2022. [David Gichuru, Standard]

Parties in the court case challenging President-elect William Ruto's win clashed over a report by the court's registrar on the scrutiny of ballot boxes and the electoral commission's ICT systems.

Lawyers representing the Independent Electoral and Boundaries Commission (IEBC) and Ruto accused Azimio leader Raila Odinga's side of lying to the court on the contents of the report.

This happened even as Raila's side, and other petitioners, pointed at irregularities that they deemed glaring enough to annual the presidential election. The petitioners went first, claiming they had filed their observations, documents that the court would reject, which they said observed that some logs were deleted on IEBC's server.

That was contrary to Registrar Letizia Wachira's report, which had indicated that no deletions had occurred. Raila's lawyer Philip Murgor had also said that foreigners had accessed the systems 180 times during the election.

Justice Isaac Lenaola tasked Murgor to prove the claim, despite the registrar's evidence that foreigners had accessed the said servers days before the election. Murgor said that their document, which the court declined to admit, had evidence of the same, arguing that the registrar's report omitted the same.

The IEBC would adopt the registrar's findings in the aspect that foreigners had not accessed the IEBC servers during the election period.

The petitioners further argued that the IEBC had not complied with all its orders on access to the said ICT infrastructure, with the polls agency dismissing the same.

Ms Wachira's report, however, indicated that the electoral agency had not provided all that the Supreme Court had ordered.

Njoki Mboche, appearing for the Youth Advocacy group, argued that the scrutiny had established "breaches, illegalities and gaps", faulting the IEBC for disregarding some of the Supreme Court's orders.

"They amended orders of this court... The agents indicated that when they were asked about the password policy, they said it would infringe on their security... Yet that was important in establishing who had control," Ms Mboche said.

Khelef Khalifa's lawyer Willis Otieno would claim that foreigners were in control of the election, arguing that a "Supreme Court order had been countermanded by a letter", in reference to a letter by election technology firm Smartmatic that it would not grant a forensic image of the result transmission system.

"Have you been granted access to the entire election infrastructure? The answer is no," Mr Otieno said.

On the scrutiny of ballot boxes, the IEBC said the numbers declared in Forms 34A matched the ordered recount, faulting the petitioners for attempting to evade the subject in their responses.

"No one had addressed the pertinent issue that no result varied with those announced in Forms 34A," IEBC's lawyer Emmanuel Wetang'ula said. "There was no variance in 40 of the 45 polling stations sampled."

He termed some variances recorded were minor, arguing that they would not have affected the election's outcome. "If there is no variance, then we wonder what the complaint is," he said, pointing out that the scrutiny discounted assertions of transposition of results from one candidate to the next.

The petitioners had argued that their scrutiny had been qualitative in nature, revealing major anomalies that cast doubt to the integrity of the election. One such anomaly was the absence of Book 2 of 2 of Forms 34A, documents that were meant to be left unused and sealed in ballot boxes.

Mr Otieno argued that Chebukati had unilaterally printed the said set of Forms 34A as a ploy to flood polling stations with genuine forms that would be used to transmit results that were not genuine.

Lawyer Tom Macharia, representing Youth Advocacy Africa, argued that Chebukati was wrong to "correct" results as sworn in Veronica Maina's affidavit.

He said the UDA Secretary-General had stated that the IEBC chair had corrected some errors. Raila's lawyer Jackson Awele said IEBC had not provided Forms 32A for some polling stations where voters had voted manually.