The electoral body has defended its declaration of President Uhuru Kenyatta as the August 8 General Election winner, saying it was within the provisions of the Constitution and other laws.
In its response to the submissions by petitioner Raila Odinga’s lawyers, the Independent Electoral and Boundaries Commission (IEBC) on Monday said its chairman Wafula Chebukati, the presidential returning officer, declared the final results as provided for by law and after satisfying all the election requirements.
Through its lawyer, senior counsel Paul Nyamodi, IEBC downplayed the significance placed on forms 34A in declaring presidential results and insisted that they were not mandatory.
In what appeared to be an attack on the Court of Appeal ruling that declared presidential results announced at the constituency tallying centres as final, Mr Nyamodi told the court that the significance of forms 34A had been muted and the IEBC’s right to declare provisional results taken away.
Mr Nyamodi described the National Super Alliance (Nasa) petition as containing vague or nuanced complaints against the electronic transmission system and that, while they “eloquently and fluently” argued that it was hacked, they did not offer proof.
He said the technology was brought in to convey the result from one place to another.
“It was like a bus. It was a like a matatu. It was like a courier. All it did was transport the result from one place to another,” Mr Nyamodi said.
“The petitioner remains obsessed with the mode of conveyance. What was conveyed was either through Kiems, Form 34A, or through FTP, Form 34B.
“Forms 34A are not mandatory for the chairman of the commission to declare the winner in the presidential race. The decision to declare Mr Kenyatta as the winner was done within the law because all forms 34B had been received.”
Mr Nyamodi referred to the Appellate Court’s ruling, which declared that the primary instrument for declarations in the presidential results was forms 34B, which is an aggregate of all results garnered by candidates at polling stations.
The lawyer submitted that the petitioner had constructed what he described as an erroneous assumption that elections in Kenya were wholly electronic, insisting that the law provides for both manual and electronic transmission of results.
“The two systems are not mutually exclusive. A result is a result, whether submitted manually or electronically, and the petitioners have placed too much focus on electronic transmission to render the outcome of the election a nullity,” Mr Nyamodi said.
He said that, even after the IEBC offered the raw results, Nasa refused to take them.
He referred to Nasa’s press release a day after the election claiming to have seen the actual results from an IEBC insider and taken from the IEBC server.
Then, Nasa had demanded that the IEBC declare Mr Odinga and Mr Musyoka duly elected.
Mr Issa Mansur, one of the IEBC’s lawyers, said the commission did nothing wrong by its officers failing to stamp forms 34B and the lack of handing over notes as there is no requirement for that in the poll regulations, because the results declared at the polling stations are final.
He cited the Court of Appeal ruling in the Maina Kiai case.
“At best, or at its worst, the manner in which this petitioner has conducted himself is a long journey.
“It can only be considered to be a wild goose chase because they are saying, if it is not hacking, it is ‘This is the result’ or ‘It was badly organised’.
“The only conclusion that this court can come up with is that this petition is not proved and this petition should be dismissed with costs,” Mr Nyamodi concluded.
Another IEBC lawyer, Mr Paul Muite, told the court that forms 34A were the highest form of expression of the sovereign will of the people of Kenya.
The senior counsel said the sovereign will of the people as expressed on August can be captured through forms 34A.
“You can tell how Kenyans exercised their sovereign will by looking at forms 34A.
“If you ascertain it was, then you must tread careful and not nullify the election,” Mr Muite said.
Reports by Ibrahim Oruko, Sam Kiplagat and John Ngirachu.