After a gruelling three-day petition showdown, the Supreme Court has retreated to write a ruling that will shape Kenya’s political terrain.
The seven judges are in a secluded Nairobi hotel. This comes a day after receiving a judiciary-commissioned audit indicating anomalies in at least 121 Forms 34B, used to declare constituency presidential results.
It has been received 70,000 pages to consider.
Opposition chief Raila Odinga wants the court to overturn President Uhuru Kenyatta’s reelection and order a new election. He calls the August 8 vote shambolic, a charade.
Lawyers for the President and the IEBC argued NASA has failed to prove anything and the court should not entertain grievances about trivial problems during voting and tallying.
They describe the opposition case using terms like science fiction, intervention by aliens, magician’s tricks and the Bermuda Triangle where vessels vanish.
Tomorrow the judges will deliver their ruling. The time has not been announced.
Their decision will either allow Uhuru’s swearing in for a second term or a rerun of the election within 60 days.
Sources told the Star Justice Mohammed Ibrahim, who is unwell and missed the the final proceedings Tuesday, may also miss the first day of judgment writing.
Also on the bench are Chief Justice David Maraga, DCJ Philomena Mwilu and Justices Jackton Ojwang, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola.
Expert reports tabled before the court show at least 121 forms out of 291 scrutinised contained various anomalies.
According to the report by Supreme Court Registrar Esther Nyaiyaki, 291 forms 34B — representing the 290 constituencies and the diaspora — were scrutinised by NASA experts.
Some 56 forms did not have watermarks, a security feature that was part of the contract between the IEBC and Dubai printer Al Ghurair.
Another 31 forms had no serial numbers, while five forms were not signed by returning officers.
Raila’s lawyer James Orengo has termed the judiciary report “the smoking gun” and argued nearly five million votes were at stake in constituencies with “irregular” forms.
“Our case has been proved that forgery, alternation of documents fakery and deception have been used in various ways, including one in which the server was used,” Orengo told the court on Tuesday night.
Raila has built his case that Uhuru was declared without requisite statutory forms and then IEBC fraudulently procured fake forms to justify the win. Lawyers for the IEBC and Kenyatta have rubbished the claims.
The judiciary audit indicates, however, that of the 291 forms, 236 forms bore watermarks, while another 261 had serial numbers.
At least 281 were signed by returning officers, 225 were signed and stamped by the ROs and two were only stamped. Some 260 forms were signed by agents, and 32 not signed, according to the report.
Besides the audit of forms, there was a separate audit by the court on the ICT system, including the IEBC computer servers.
The report prepared by Professors Elijah Omwenga, Joseph Sevilla and Janet Kadenyi observed that IEBC allowed only partial read-only access to its servers, with no copy capability or access to database logs.
The report also indicates IEBC only provided logs in trail into the KIEMS database management system in a hard disk. This was rejected by the NASA team, insisting on accessing the logs directly from the server.
“The first respondent (IEBC) should demonstrate the logs came from the IEBC server by allowing all parties to have read-only access and copy logs: alternatively, the first respondent could access the information in the presence of the petitioner as and when requested,” the experts said.
They added, “…live access was provided on 29 August at about 5.30 pm without the ability to access the database and/or data logs. This request was not granted.”
It was also noted the IEBC indicated they had technical challenges in complying with the server read-only access order, including set up of the VPN tunnel to the server, connectivity challenges when accessing the cloud and security protection measures that need to be upheld as the election period is not over.
Raila has previously claimed the system was hacked.
The former Prime Minister initially claimed results captured in IEBC data showed he was leading by 8.04 million votes against Uhuru’s 7.7 million.
“What the IEBC has posted is a complete fraud…to give Uhuru Kenyatta votes that were not cast…We have uncovered the fraud. Uhuru must go home and IEBC must be fully accountable,” Raila said later.
In scrutinising the forms, NASA’s team asked the registrar to allow them to distinguish the fake forms from genuine ones, as per court order.
This meant they had to check presence of watermarks using the UV reader, color of the form, serialisation, micro text, format of forms, anti-copy features and column for comments on the form.
Kenyatta’s agents did not oppose the proposal but requested they be allowed to look at the exact forms checked by NASA and make their own comments.
After scrutiny of forms 34C, NASA noted the security features of watermark and serialisation were noted and the form looked like a photocopy.
The President’s team noted the form was a copy of the original duly certified by an advocate. They further noted the form contained declaration of results signed by IEBC chief Wafula Chebukati and other agents, except for ODM where there is a comment that the agent declined to sign.
The parties also carried out scrutiny of forms 34As in Chuka, Nyaribari Masaba, Mandera West, Mandera South, Kanyi, Bumula, Kabuchai, Sirisa, Mt Elgon, Bonchari, South Mugirango, Bomachoge Borabu, Bobasi, Bomachoge Chache, Nyaribari Nyasaba, Nyaribari Chache, Kitutu Chache North, Kitutu Chache South, Lafey, Banissa, Mandera North, Mandera South, Mandera East, Embakasi central, Makadara, Embakasi West, Roysambu, Embakasi East, Embakasi North and Maara.
A total of 4,120 forms were sampled across five counties and some of the issues raised were that some forms were carbon copies, original form 34As did not bear the IEBC stamp, some forms were scanned copies and some forms not signed.
One of the volumes was labeled as illegible forms, which contained 10 copies of scanned form 34As. IEBC indicated the originals of those polling stations were locked up in the ballot boxes
The registrar also noted that forms presented for Mvita constituency were for MP but later IEBC presented the ones for presidency.