Lawyers for Opposition leader Raila Odinga on Monday cited irregularities that they said marred the August 8 presidential election and asked the Supreme Court to void incumbent Uhuru Kenyatta’s victory.
The lawyers said compilation of the results was flawed, some results were fabricated, the incumbent misused State resources, including Cabinet secretaries, in the campaigns.
In their five-hour presentation to the seven judges as the hearings of the case started, Mr Odinga’s team, headed by Mr James Orengo, faulted the manner in which the provisional results were transmitted and the veracity of the forms on which the final results were filled in.
They also pointed out what they said were breaches of the Constitution and electoral laws by President Kenyatta and three Cabinet secretaries during the campaign period.
“Our submission is that once the contravention of the Constitution is proved, the matter ends there and the election is invalidated,” Mr Paul Mwangi said.
Mr Okong’o Omogeni, who argued on what he described as improper influence, intimidation and corruption on the part of the President, also tried to press home the point that looking at the numbers alone was not important.
“On this area, you don’t need to look at numbers. If the Constitution was violated, if the laws were violated, you don’t have to look at who has a massive lead.
“It’s not about numbers. It’s whether the laws governing the elections and the Constitution have been followed. It’s not about numbers,” he said.
He added: “If on a balance of probability the petitioner can demonstrate that the Constitution and the laws governing the elections were violated, this court should void the results of these elections.”
Mr Odinga’s lawyers told the judges that they found a total of 32 breaches that fundamentally affected the conduct of the elections.
Making the opening submissions, Mr Orengo said the election was muddled and according to him, it was not easy to know whether President Kenyatta was validly elected.
He said some of the ballot papers used in the election were fake as they did not meet the security specification the commission had put in place, suggesting they may have been procured locally.
“Some of the ballots used in the presidential election were not those shipped from Al Ghurair Printing company as part of its contractual obligation with the commission to print the ballot for the General Election,” Mr Orengo said.
He said some of the ballots and forms 34A and 34B did not contain security features as contained in the elections regulations.
“Looking at these forms as a whole, the irregularities are not mere transgressions but they involve trickery, forgeries and discrepancies that go against the applicable law. The forms as submitted do tell a tale,” Mr Orengo said.
The security features Mr Orengo cited included watermarks, anti-copying features, and bar codes, which could only be detected under ultraviolet light.
He further told the court that some of the forms and ballots were not properly serialised and had names of presidential candidates switched and that some forms 34B did not have a collation of aggregated results garnered by all candidates in the polling stations.
“Some ballots had been generated in ways that differed significantly with other polling stations in the constituencies,” Mr Orengo said.
The upshot of the falsification, Mr Orengo argued, was that the commission and the Jubilee Party team had submitted to the court a falsification of the original documents.
Mr Otiende Amollo questioned Mr Kenyatta’s lead, which he said had consistently maintained an 11 per cent from the start to the end of the transmission of presidential results.
This, the lawyers said, was a statistical impossibility.
“The presidential results showed a curious trend in which Mr Kenyatta maintained a consistent 11 per cent difference at each and every stage.
“If as required by law these results were being streamed randomly, then this was not possible,” Mr Amollo told the court.
The lawyer argued that the upshot of this observation was that the results were coming in throughout but in batches which, according to him, meant that they were not coming from polling stations as required by law, making it impossible for experts to explain where they were coming from.
“It is possible the results were being held somewhere, adjusted and then released into the commission’s system,” Mr Amollo submitted.
He told the court the results were “adjusted through an error adjustment formula, which when used gives a clear line of all the variables”.
“Under the formula all one needs was to know the votes Mr Odinga would garner at any particular time and then you can determine Mr Kenyatta’s votes,” he said, giving the formula of achieving the results as y=1.2045x+183546.
Mr Amollo said when the electoral commission’s chairman Wafula Chebukati declared President Kenyatta the winner on August 11, he failed to read out the number of rejected votes.
He said in Form 34C, which was handed to President Kenyatta, the number indicated was 81,685, while the number displayed in the public portal was 401,003.
The commission has maintained that the display on the portal was of provisional results.
According to Mr Amollo, the “grave inaccuracies” were either as a result of negligence or wilful intention.
He accused the commission of adopting what he termed a consistent pattern of increasing President Kenyatta’s figures and reducing those of Mr Odinga.
Mr Amollo said there were anomalies in Igembe South, Rabai Road Primary School, Kewi polling station in Nairobi’s South C, Nyando and Turbo among others.
In Kisumu’s Nyando, the lawyer said, the ODM agent failed to sign the form.
He said at the same polling station it has not been indicated how many votes all the candidates received.
Mr Amollo said the names of the returning officers from the 14 constituencies were not indicated on forms 34B and in some cases the names of those who signed the forms were not indicated.
An audit of the results from the 14 constituencies, he said, showed a return of 594,476 votes, which according to him was enough to affect the validity of the presidential vote.
Mr Amollo said the Nasa team found a total of 14 constituencies with arithmetic errors, bringing into question its authenticity.
“The figures might look insignificant but prescribed documents must look similar and when they are different, they are invalid and so is the results contained therein,” he said.
He said the final results garnered by Mr Odinga and President Kenyatta were also different in forms 34C and the portal.
Mr Amollo said President Kenyatta was declared the winner of the polls with a total of 8,223,163 as shown in Form 34C but the public portal showed 8,203,290.
He said a team of lawyers and experts who had analysed forms 34A had found out discrepancies that would affect about 9,327 votes.
“The electoral body says in its reply that these are mere statistics.
“That cannot be the case. Results in the official public portal and those in the forms should be similar,” he said.
Mr Amollo further said a huge number of voters voted in the presidential race but ignored other elective seats.
Some 15,588,038 voters, the lawyer said, voted for the president while 15,098,464 people voted in the gubernatorial race.
Similarly, some 567,517 voters chose not to vote for the senate position.
“This is not practicable for those who know the rules and procedures governing the elections,” he said.
Mr Omogeni argued that there were massive breaches of the law during the campaigns by Cabinet Secretaries Joe Mucheru (ICT), Mwangi Kiunjuri (Devolution) and Eugene Wamalwa (Water).
He said the provisions of the Integrity and Leadership Act are in conflict with five articles of the Constitution and asked the judges to rule that that provision is contrary to the law.
Reports by John Ngirachu, Sam Kiplagat and Ibrahim Oruko
He has described Mr Kenyatta and his deputy as computer-generated leaders.