Supreme Court a threat to democracy, says Azimio team

Supreme Court Judges during the hearing of the 2022 Presidential petition. [Collins Kweyu, Standard]

Azimio la Umoja One Kenya leadership now says the Supreme Court is one of the weakest links in Kenya's democracy journey.

In in response to the Supreme Court judgement on September 26 which upheld President William Ruto's win, the coalition claimed the apex court acted unethically.

"We regard the election result as wholly illegitimate and call upon Kenyans not to lose faith in the struggle for democracy," Azimio said in its report released yesterday, signed by Azimio spokesperson Makau Mutua and Azimio leader Raila Odinga's lawyer Paul Mwangi.

Azimio said the Supreme Court failed to be the pillar and anchor of the rule of law as the arbiter of last resort on presidential petitions. The report further claimed that the Supreme Court acted while relying on blatant bias against Azimio.

"Kenyans need to consider whether the Supreme Court is serving the purposes for which it was established," read the report. Azimio claimed that the Supreme Court should have nullified the elections due to what it called offences committed by the Independent Electoral and Boundaries Commission (IEBC) in favour of Ruto.

It said the language directed at them was "sophomoric and unbecoming," and was not that of an impartial arbiter in an adversarial system. "The words hot air, fool's errand, lost cause, vain attempt, wild goose chase, red herring, worthless pursuit and sensational shall remain as painful festering wounds in the hearts of many Azimio supporters and shall be a pillory to which the reputation of the Supreme Court shall be held to public ridicule for generations to come," read the report.

The Azimio leadership said the words were those of an opponent and not of an impartial arbiter, and the judges conducted themselves as litigants in the consolidated petitions.

The leaders alleged that Smartmatics International Limited Holdings had been involved in election manipulation in several countries and should not have been contracted to carry out elections in Kenya.

"The report provided evidence of computer log-ins given by the IEBC itself that showed that at least four foreigners were online on the IEBC system where they were deleting and uploading documents," Azimio said.

DCI evidence

"The reading of the foreword indicates that the court ran away from, or ignored, the evidence of the Directorate of Criminal Investigations."

"Shockingly, when the petitioners filed their findings on the scrutiny demanded by the court, the judges threw it out," they said. Azimio claimed the Supreme Court ignored the evidence of the petitioners and instead incredulously proceeded to use the evidence they had gathered "on behalf of the parties."

The leaders further alleged that the Judiciary gave IEBC more time than petitioners. They said they were denied access to the server, but the court overlooked it.

Azimio claimed the image of Form 34A was captured by the Kiems kit as a JPEG image but ended up on the IEBC public portal as a PDF document.

IEBC systems

They said evidence from the forensic analysis by the DCI showed that there was unauthorised access by foreigners to the entire IEBC system, which the court overlooked. "The judgment of the court on this issue reads more like an IEBC operational manual than a judicial analysis of a contested fact," they said.

"As stated earlier, the attempts by the petitioners to produce evidence on technology were frustrated by the court when it struck off the petitioner's submission on what had happened during the scrutiny," they added.

"It is worse because the court generated its own evidence and then rejected the evidence of the parties and decided the case on the court-generated evidence. The court thereby ceased to be an arbiter but a litigant," reads the report

According to Azimio, there were cases where the petitioners noted entries in the polling station diary were overwritten to hide the true serial numbers of the seals. The leaders said there were discrepancies during result transmission between the forms supplied by some of their agents and those posted on the public portal.

"This virulent attack on the petitioners' advocates was not based on any evidence of forgery or fabrication. It was based on an opinion of IEBC which the court had decided was the truth on the issue," Azimio said.