Affidavits sworn by the National Super Alliance (Nasa) presidential candidate Raila Odinga and running-mate Kalonzo Musyoka, information technology experts and purportedly side-lined election officials and party agents could hold the key to the success of the 25,000-page petition challenging the outcome of the August 8 election.
Mr Odinga and Mr Musyoka accuse the Independent Electoral and Boundaries Commission (IEBC) and the Jubilee administration of deliberately undermining the deployment of technology, violating the Constitution and other electoral laws by using State resources to campaign and intimidating the opposition.
While the assertions by the principals and the agents provide grounds for the nullification sought, the affidavits by Mr Ibrahim Mohamud Ibrahim and Mr Mohamed Noor Barre who said they had been appointed by IEBC as presiding officers in Mandera North Constituency, will provide further ammunition to build a case against the IEBC.
In their affidavits, Mr Ibrahim and Mr Barre corroborate Nasa’s assertion that IEBC used non-gazetted election officials and polling centres to conduct the August 8 elections.
“On August 7, 2017, I reported together with other clerks for duty. Upon reaching the place of work a clerk of the commission informed 70 of us that our names had been replaced by others for unexplained reasons. A protest arose and we reported the matter to Rhamu Police Station,” Mr Ibrahim states in his affidavit in support of Nasa’s election petition.
He adds: “The following day, August 8, 2017, elections proceeded at various polling stations conducted by strangers who were acting as presiding officers, but who had not been trained and had not taken oath of secrecy.”
Mr Ibrahim avers that their replacement without any justification opened voter numbers to alteration at the Constituency Tallying Centre which he claims was moved to the Sub County Commissioners’ office boardroom against a court order which had directed that it should be at Rhamu Arid Zone Primary School.
In his affidavit, Mr Barre says that at stream two at Kalicha Primary School polling station, all 594 registered voters are said to have cast their ballots.
“In truth, these figures were just filled in at the Tallying Centre,” he says, adding that this happened throughout the county.
In the main body of the petition, Nasa claims that IEBC failed to comply with Regulation 5 of the Elections (General) Regulations in the appointment of presiding officers. “In particular the 1st Respondent (IEBC) did not provide a list of persons proposed for appointment as presiding officers.”
Consequently, Nasa states that a significant number of returns were signed by “strangers who could not be held to account thereby rendering those results invalid and unconstitutional.”
In particular, Nasa claims that “a significant number of Forms 34B (filled in at the constituency from Form 34A at the polling centres) were executed by persons not gazetted as Returning Officers and not accredited as such by the 1st Respondent thereby rendering those results invalid”.
Nasa has also annexed affidavits by cyber security experts, among them Ms Aprielle Oichoe, Mr Duncan Nunda, Prof Charles Kaloki and Mr Geoffrey Osotsi who allege that IEBC results transmission system was compromised.
At the time of declaring the results, the experts claim, only 29,000 Form 34As from the 40,883 polling stations had been received and that their authenticity could not be ascertained.
“The result could only be called or declared when the Commission had all the form 34As and 34Bs,” says Mr Osotsi.
As a result, Nasa is also asking the court to order a system audit to check if results were transmitted as prescribed, which unique code was used for each of the 40,000 plus polling stations, the IEBC officers who used them to transmit results and the time and the place from where the results transmission occurred.
Each polling station reportedly had a unique identifier with a code to connect it to the result transmission system in an attempt to secure the vote and ensure that the elections are simple, accurate, verifiable and accountable.
This link would enable the presiding officer to electronically transmit the presidential election results from Form 34As from the polling stations to the constituency, and from the constituency to the national tallying centre, from where it would be uploaded onto an online public portal maintained by the commission.
“The failure is due to the fact that the commission was either unable to have full control of its system, or that it ceded this authority to some other authority,” says cyber security expert Oichoe.
Prof Kaloki on his part states that the Kenya Integrated Elections Management System (KIEMS) was only tested two days to the election, thus denying the public an opportunity to verify its efficiency and security. He further says that documents for some 11,000 polling stations were missing when the IEBC chairman Wafula Chebukati declared the results for the presidential race in favour of Jubilee candidate Uhuru Kenyatta on August 11, a figure equivalent to the number of polling stations said to be outside the 3G and 4G network coverage.
Prof Kaloki says the claim was misleading since results in a county like Nairobi continued to be delivered physically for many polling stations in spite of not being listed among the 11,000 polling stations outside network reach.
“The IEBC deliberately or negligently failed to electronically transmit results from polling stations and the constituency tallying centres together with the prescribed forms,” Mr Odinga says in his own affidavit, “and thereby opened the collation and tallying process to manipulation and unlawful influence.”
Prof Kaloki also argues that the six-day window allowed by the IEBC for Form 34Bs to be submitted after the declaration of results lends itself to addition, multiplication and subtraction contrary to the Constitution and the law and a review of the results as declared on the basis of polling station and constituency tallying centre forms revealed “substantial, systemic, glaring, qualitative anomalies,” according to the petition.
An affidavit by Nasa election agent Koitamet ole Kina claims that the IEBC portal began streaming results in the presidential election a mere 15 minutes after polling formally closed which he says is practically impossible given that each polling station was serving a maximum of 700 voters and the process of verifying, counting and tallying votes generally lasted two hours.
“I arrived at Bomas of Kenya on August 8, 2017 at 1630hrs to activate my access card. The process took about an hour. During this time, I was seated at the auditorium chatting with Ms Hamida Kibwana, Mr Oduor Ong’wen and other agents who were also waiting for their cards to be activated. At about 1715hrs, results started streaming into the IEBC portal,” Mr ole Kina states in his affidavit.
He adds that he soon realised that there was no way they could verify the results on the IEBC portal without either the hard copies of Form 34A or the soft copies that IEBC was receiving in their server.
“We therefore approached (IEBC) Commissioners Prof (Yakub) Guliye and Roselyn Akombe as well as CEO Ezra Chiloba and requested them to [supply] the Form 34B for purposes of verification of the streaming results,” he states in his sworn affidavit.
With no response forthcoming, Mr Kina says they sought for an urgent meeting with the commission. “The chair, some commissioners and members of the secretariat led by the CEO attended the meeting,” he states.
Since the questions they were raising related to transmission of results, Mr Chebukati invited the commission’s ICT officers and Morpho consultants who supplied IEBC with the KIEMS kits to the meeting.
In the petition, Nasa also claims that a number of its agents were ejected from polling stations in Central and Rift Valley in what the court filings claim was to facilitate rigging in favour of President Kenyatta.
The ejection of the agents, Nasa contends, led to a significant number of statutory election declaration forms to be signed by strangers who could not be held to account thereby rendering the results invalid and unconstitutional.
Nasa also alleges that IEBC deliberately or negligently compromised the security of KIEMS thereby exposing the kits to unlawful interference by third parties.
The Nasa principals aver that results from more than 10,000 polling stations transmitted to the national tallying centre, and accounting for some seven million votes, were not accompanied by the electronic image of Forms 34A.
Nasa also says the commission allowed the media to relay results that had no legal or factual basis. This, according to Mr Odinga and Mr Musyoka, was deliberate and calculated to create a “false narrative and national psyche in preparation to steal the election in favour” of President Kenyatta.
The petition notes that in a significant number of polling stations, the votes cast as captured in Forms 34A differ from the results in Forms 34B as well as the results displayed by the commission in its own portal.
The threat by President Kenyatta to chiefs on August 2, while campaigning in Makueni County, has also been mentioned as an act of intimidation.
Nasa principals term “the thinly veiled threats to chiefs” accused of not campaigning for Jubilee an illegality.
Mr Odinga also faults Jubilee’s use of Cabinet Secretaries and state resources to “actively solicit for votes and/or further Mr Kenyatta’s political interests as illegal and against section 16 of the Public Officer Ethics Act.
The slain electoral commission ICT manager Chris Msando, who was buried yesterday, also appears in the petition with Nasa stating that his murder was “a clear attempt to further weaken the electronic electoral system.”
Of significance also is Nasa’s plea to have the Supreme Court to review its 2013 ruling that rejected votes ought not to be included in calculating the final tallies in favour of each presidential candidate. “A declaration that the rejected and spoilt votes count toward the total votes cast and in the computation of the final tally of the Presidential Election,” Nasa states.
Besides Nasa, Thirdway Alliance presidential candidate Ekuru Aukot has announced that he will apply to be enjoined in the petition.
Prof Kibwana has emerged as one of Mr Musyoka’s most trusted ally.