The National Super Alliance (Nasa) has put together evidence it says will prove the statutory results declaration forms provided by the Independent Electoral and Boundaries Commission (IEBC) are defective and cannot be relied on.
The evidence comprises missing or questionable security features in Forms 34A (from the polling centres) and 34B (from the constituency tallying centres), unsigned or unstamped documents, those signed by un-gazetted IEBC officials — including an observer, forms stamped with unofficial IEBC stamp and a tabulation of un-gazetted polling stations among others.
After filing the written submissions and interlocutory applications on Friday, Nasa lawyer James Orengo, who is among those representing Mr Raila Odinga and his running mate Kalonzo Musyoka, hinted at the kind of evidence they have when he spoke to the waiting press at the Supreme Court entrance.
“I think we have a bombshell and we will demonstrate there was a fraud, a forgery committed in respect of these elections of monstrous proportions. Many of the papers IEBC has filed and which they also gave to us, a majority of them are forgeries, they are fake, they do not have the security features that are required in accordance with their own guidelines and manuals and under the law. Therefore we are ready to go,” he said.
It is evidence IEBC lawyers and those representing its chairman Wafula Chebukati and Jubilee Party candidate on August 8 President Uhuru Kenyatta have already indicated they will challenge, through affidavits and written submissions.
But even as Nasa submits the mistakes were widespread and systemic, President Kenyatta, whose re-election is being contested, holds “the errors in question would be ordinary clerical errors, which would not have affected the result of the election in light of the huge difference between the votes obtained by the 3rd respondent (himself) and those obtained by the 1st petitioner (Raila Odinga) in the presidential elections.”
The mention and pre-trial conference in the petition were held on Saturday while the Supreme Court has also given notice that it will rule on interlocutory applications — pleadings by those seeking to be enjoined in the case either as friends of the court or interested parties and preliminary applications for admission or removal of some affidavits and applications — at 9am today. Hearing of the petition will start two hours later.
Ahead of the hearing, a perusal of the body evidence already filed by Nasa include bar code analysis of the Forms 34A and 34B pointing at possible forgeries.
For instance, Nasa says in its evidence the bar code analysis for Navakholo constituency in Kakamega County appears as “Organisational Principles World Health Organisation”.
The information revealed by the bar code analysis of Form 34B that IEBC filed for Kipipiri Constituency shows information relating to the prevention of liver disease by an organisation abbreviated as NCBI.
BAR CODE ANALYSIS
Similarly, bar code analysis of Forms 34B for Mumias East appears as “Compare Price Maro Ottoman by Cyan Design Details Review” and not the constituency.
The analysis for Bomachoge Chache reads as “Jamco America Parts Numbers list by page – 351 – AFR Entreprises, while for Keiyo South shows “partner P028150 Sony LT291 experia”.
The court filings by Nasa also reveal sixteen constituencies — namely Turkana South, Shinyalu, Ikolomani, Lugari, Matungu, Malava, Khwisero, Lurambi, Samburu West, Laikipia East, Kajiado North, Marakwet, Naivasha, Keiyo South, South Mugirango and Belgut — whose barcodes cannot either be recognised or display names of places other than the constituencies, mostly in foreign countries including a pub in France.
“In the making of this fraud, they encrypted everything and thought it was signed and sealed but we have found the smoking gun,” said a lawyer representing Nasa, who spoke in confidence, but indicated this argument was part of their written submissions.
But IEBC and its chairman Wafula Chebukati who are the first and second respondents respectively state the Forms 34A and Forms 34B bear various security features to safeguard against introduction of foreign documents.
According to the IEBC tender document (IEBC/48/2016-2017), which Nasa has attached as evidence, the result declaration forms would have “one generic watermark visible when visually examined under normal light”, at least two security features visible only under UV (ultraviolet) light including IEBC logo and name of the constituency, anti-copy features and tampered serialisation done with permanent ink.
In the written submissions filed with the Supreme Court on Friday, Nasa lawyers, Murumba & Awele Advocates claim “other than noting that most IEBC Forms did not conform to the contractual security specifications provided to Al Ghurair suggesting that the Forms were locally and fraudulently generated, a bar code analysis of the Forms supposed to indicate the respective constituencies showed the same as belonging to restaurants, World Health Organisation, MicroDrivers and other strange entities.”
“This revelation completely vitiates the entire presidential election outcome and renders the entries therein void,” the lawyers state in their written submissions.
But IEBC has maintained: “Any isolated cases of discrepancies and/or inconsistencies between the results as contained in Forms 34A and Forms 34B which is denied, arose from inadvertent human error during the process of tallying and verification of the results contained in the Forms 34A.”
The electoral body adds that the said errors, if any, “did not materially affect the outcome of the elections.”
In addition, Nasa is pointing out contradictions in the responses by President Kenyatta and the electoral commission to prove that the presidential election was rigged and should be annulled and a fresh one held within 60 days as per the constitution.
According to documents filed by the petitioner, the inconsistencies are in regard to alleged ungazetted polling stations and whether or not IEBC had all the Forms 34A and B at the time of declaring the results on August 11.
At paragraph 59 of President Kenyatta’s response, he says that names of some polling stations were changed.
“In some cases, there was a change of name of polling stations, but in no circumstance was an ungazetted polling station used, neither were any results submitted that did not originate from a valid polling station,” President Kenyatta states.
But in its response, IEBC, without stating whether or not there were changes in names of some polling stations, denies there were ungazetted polling stations.
“The 1st respondent (IEBC) avers that it did not establish any secret and ungazetted polling stations as alleged by the petitioner in paragraph 23.1 of the petition or at all. The 1st respondent states that there were no results from any ungazetted polling station that were included in the final tally as alleged in paragraph 23.2 of the petition. The petitioner is put to strict proof of any averment to the contrary,” IEBC states.
Nasa has also filed a list of 14 unnamed primary schools that they claim were not gazetted polling stations but identified only by codes.
Another point of contention also appears on whether all Forms 34A and B were available at the time of declaring the results on August 11.
President Kenyatta at paragraph 46.4 of his response states thus: “At the time the final results were declared, all Forms 34A and 34B had been received by the 1st respondent (IEBC) and made available to the agents of the political parties at the National Tallying Centre.”
But in the letter to Nasa on August 14, IEBC CEO Ezra Chiloba informed the opposition that while the commission was in a position to immediately provide all the forms 34B as requested, something the opposition party lawyers have indicated they will point out in their arguments.
Besides the bar code analysis and the apparent contradictions, Nasa lawyers also claim in court documents to “have discovered startling evidence of a fraudulent attempt to conceal and manipulate the fatal anomalies and irregularities after filing of the petition and weeks subsequent to the purported declaration of a final result allegedly based on the same documents” including that the stamps IEBC used on some forms are unofficial in their analysis of the 54,000 pages and the Forms 34A filed by IEBC.
Mr Ngatia insisted that all replies had been filed on time.