The big announcement will be made tomorrow, and everyone expects the case to go their side.
NASA’s Raila Odinga claims the declaration of President Uhuru Kenyatta as the winner of the August 8 contest with 54% of the vote was fraudulent, contending hackers infiltrated the electoral commission’s servers and manipulated results in the president’s favour.
Through his lawyers, Raila submitted before the Supreme Court judges that close to five million votes were affected by anomalies highlighted in the petition.
James Orengo, the lead counsel of the battery of lawyers who represented Raila and his running mate Kalonzo Musyoka, said the court should invalidate Kenyatta’s win because a scrutiny of forms used to tally presidential results showed many lacked security features that the electoral commission agreed on. He said the forms also were not signed, as required to ensure accountability.
“Come to 34B, more than 56 had no security features, 32 forms were not signed by agents and 189 forms were not completely filled yet were used in the declaration of the results,” wondered Orengo.
A fellow counsel, Mr Otiende Amolo, went ahead to demonstrate how IEBC allegedly used a formulae (Y=1.2045x + 183546) to give Uhuru victory in the elections.
“When you look at the pattern of results, the difference between Kenyatta and Mr. Odinga was maintained by 11% throughout the process. It is our understanding that the results were not streaming directly from the polling station but they were released in batches,” argued Amollo.
In the formulae, Y represents President Kenyatta’s votes which were derived at by multiplying X (Raila Odinga’s votes) at any one time with 1.2045 and adding 183,546, a formula he did not comprehend but which was advanced by NASA’s ICT expert Dr Edgar Otumba Ouko in his affidavit.
In their defence, Uhuru’s, IEBC’s and chairman Wafula Chebukati’s lawyers dismissed the claims, saying that the petition did not meet the standard of proof needed to invalidate a presidential vote.
“For the court to agree with the petitioner, it will decide that the votes cast by Kenyans do not count,” submitted Ahmednasir Abdullahi in defence of Mr Kenyatta.
“Even if you expunge our documents, this petition will still be dismissed. These are allegations without any evidence. It is a piece of science fiction that only Hollywood directors would be interested in,” he added.
Chebukati’s lawyer Dr PLO Lumumba said that the allegations before the court were too negligent to support the case, referring to the case as ‘dead on arrival’.
“Kenyans gave birth to a baby. IEBC’s role is midwifery. The baby is alive and well. You are being asked to strangle the baby. Decline the invitation,” he said.
An audit of the electoral forms and IEBC’s ICT database also revealed various transgressions, which Orengo said provided the smoking guns the respondents were demanding and that it proved their case. The respondents held a different view.
The IEBC denied rigging but acknowledged some “inadvertent errors” that it said would not affect the outcome of the vote. The judges led by Chief Justice David Maraga have been analysing the submissions by the petitioner, evidence adduced and submissions from all parties in making their final determination that is due to be delivered Friday.
The court has two options: to either overturn Uhuru’s win or uphold it. If it overturns, it will be on evidence that the electioneering and tallying process, which will trigger an automatic call for fresh presidential elections in 60 days.
If the court upholds Mr Kenyatta’s re-election, the most probable reason they’ll give is that NASA’s evidence was insufficient to nullify the election, the same way it happened in 2013.
Murithi Mutiga of the International Crisis Group think tank told the French news agency, AFP, the current procedure has been impressive so far with sessions broadcast live on television and with opposing lawyers laying out their arguments with courtesy and clarity.
But, he warned, “even if the quality of the ruling is high, some people will be disappointed” and that can spell trouble in a country where elections routinely put pressure on ethnic and economic fault lines.