The Supreme Court will on Sunday morning decide whether to throw out or keep pieces of evidence submitted by the National Super Alliance (Nasa) on Friday, and which it said contain crucial details to support its case.
During the pre-trial conference held on Saturday from 7.30 pm, Nasa lawyer James Orengo asked the court to allow an audit of the electoral commission’s electronic system and statutory results declaration forms.
Also under consideration are four volumes filed by Nasa on the Sunday after the Friday deadline to do so and a litany of allegations by all sides that the documents deposited at the court had not been served on them.
The court will also decide whether to allow Attorney General Githu Muigai, the Law Society of Kenya, two former candidates for the presidency and interested lawyers and individuals.
Lawyers for Nasa leader Raila Odinga, President Uhuru Kenyatta and the electoral commission indicated at the start of the pre-trial conference that they would cede no ground on their assertions that various documents had been submitted outside the time allowed by the Constitution, the Supreme Court Act and the court’s regulations.
This was despite pleas by Chief Justice David Maraga to consider that there is limited time to hear and determine the petition and that the parties were better off agreeing on the issues by themselves.
“We are all aware of the time constraints. Unless we co-operate, we’ll have problems,” said the CJ. “Don’t bring emotions from your clients. We are not in a campaign platform.”
But Issa Mansur, one of the IEBC’s lawyers, said the matter could not be left as the affidavits by Edgar Ouko, Norman Magaya, Ogla Karani and Omar Yusuf were filed out of time and were introducing new issues and changing “the character and nature of the petition.”
The affidavits accompanied Mr Odinga’s written submissions and Mr Orengo said when they were taken to the court that they contained “a bombshell.”
Mr Ouko’s affidavit contains the assertion that the IEBC’s documents were forgeries and the barcodes on them were from restaurants, the World Health Organisation, MicroDrivers and other entities.
Also in question were documents that Nasa filed on Sunday but were mistakenly backdated to August 18 and the anomaly later corrected by the Supreme Court registrar Esther Nyaiyaki. Ms Nyaiyaki later wrote to the parties.
“Those three volumes relate to additional evidence filed outside the constitutional limit,” said Paul Muite, IEBC’s lead lawyer.
The start of the pre-trial hearings was dominated by debate about the times at which the documents and evidence were filed and served on each other.
Each party claimed that their documents were filed on time but that they did not get documents from the opposite side on time.
Lawyer Otiende Amollo urged the judges to ignore the technicalities and allow the parties to go into the main case. He said they were ready to drop their stance and argue on the substantive justice.
His arguments were supported by Jackson Awele, also in Mr Odinga’s team, who alleged that all the responses by IEBC, Mr Chebukati and Mr Kenyatta were filed out of time. He said IEBC served to them voluminous documents, which they were required to respond to and were therefore prejudiced, by late filing.
However, IEBC through lawyer Paul Nyamodi said the documents were filed on time but there was no one from Nasa’s side to receive the documents, immediately after they were filed.
Senator James Orengo, who led Mr Odinga’s team, indicated his team’s hostility to Prof Muigai’s intention to join the court as its friend. After IEBC lead lawyer Paul Muite suggested, with a smile on his face, that the Attorney General should probably have spoken first, as he is the foremost member of the Kenyan Bar, Mr Orengo was quick on his feet. He said: “It’s not an omission. He is not a party.”
The seven judges filed into the small courtroom hosting the big case at 7.30 pm. Gone are the green robes with the yellow hems of the court headed by Willy Mutunga. They were replaced with black ones with red sashes and white cravats. There are still no wigs and only a handful of the lawyers had them on at the beginning.
Among those seeking to join the case is the Law Society of Kenya, which is represented by lawyer Stephen Mwenesi.
The LSK’s application was opposed by one of its members, Alex Gatundu, on the basis that the society had already taken a position on the elections as it was observer and was split and some members of its council were not impartial.
He said the society had already stated that the elections were free, fair and credible.
He added: “I am aware that the composition of the current Council… which made the resolution to apply to be joined to these proceedings as amicus curiae was not unanimous and comprises members who are engaged in active, partisan politics representing the main protagonists in this petition.”
Mr Gatundu cited the case of LSK council member Edwin Sifuna, who lost in the ODM nominations for Kanduyi and was later given a direct nomination to run for Nairobi Senator. He said that another member of the council, Allan Kosgey, sought the Jubilee Party nomination to vie in Kesses.
The lawyer said the divisions and political affiliations of the council members have been evident in their conversations on a WhatsApp group. In it, he said, one member had said that the court had been bought and a draft judgement has been written.
Mr Gatundu cited LSK vice chairman Faith Wagwa’s role in the Jubilee Party as chairman of the elections tribunal and said that chairman Isaac Okero and Mr Sifuna have been frequently consulting with Mr Odinga.
“In this very petition, all the parties are represented by senior members of the Law Society of Kenya who have taken various partisan positions in advancing their respective clients’ positions and are able to satisfactorily assist the court in matters law,” said Mr Gatundu.
Mr Brian Omwenga, an information technology advisor employed by Jubilee Party, dismissed claims that IEBC systems were hacked and results inflated in favour of President Uhuru Kenyatta.
Mr Omwenga, who is also a software and systems engineer, has also said the logs sought in the petition would run into tens of thousands, possibly even approximately 100,000 pages.
Nasa has sought for the logs among other systems for scrutiny by the court and other parties in the case.
Mr Omwenga, said the allegations are predicated on hearsay and information they have allegedly received from other individuals who “share their confirmation bias”.
He said in terms of agents, Nasa had an added advantage because the coalition comprises of 5 political parties who were competing among themselves and were entitled to extra agents for the other elective positions.
The expert says in essence, the orders sought by Nasa are an attempt to procure through the back door what they failed to do in Parliament, in the High court and in the Court of Appeal.
He said Nasa is attempting to pre-litigate a substantive issue of the petition at the preliminary stage.
Mr Orengo told the judges that Nasa’s lawyers will require 3o minutes to scrutinise the original form 34Bs from the 290 constituencies if the Court grants them their prayer to have IEBC produce them in court.
He added that the Nasa team would further require three more hours to analyse the 40,883 form 34As if the court allowed their prayer to have them produced in court. Further, the Nasa lawyers would require two more days to analyse the voter identifications kits.
Earlier, Nasa had set out 28 contentious issues it wants the Supreme Court to address.
Appearing before Supreme Court Registrar Esther Nyaiyaki on Saturday afternoon, Nasa lawyer Peter Kaluma said they had framed all the issues they wanted addressed by the court.
But after being granted 30 minutes by the Registrar to agree on the issues, the Nasa lawyers could not reach consensus with the defence teams of President Kenyatta and the IEBC on the contentious issues.
The lawyers were forced to report back to Ms Nyaiyaki who then directed that the matter will be resolved by the judges.
Also representing Nasa was lawyer Jackson Awele while President Kenyatta was represented by Fred Ngatia, Senior Counsel Ahmednasir Abdullahi and Kennedy Ogeto.
IEBC chairman Wafula Chebukati was on his part represented by Mr Kamau Karori while the Commission was represented by Paul Muite, Paul Nyamodi and Isa Mansur.
Among the issues Nasa wanted addressed are what the court should consider in determining whether to uphold or invalidate the presidential elections outcome and the exact number of rejected votes in the presidential elections.
On its part, IEBC and Mr Chebukati said only two matters were in contention, whether Mr Kenyatta was validly elected and declared the president-elect and what reliefs to be granted by the court.
Mr Kenyatta on his part wanted the court to determine whether the elections were conducted in accordance with the Constitution and the Elections Act, the evidential standard of proof in the petition and whether he was validly elected and declared the president-elect.
He also wanted the court to determine whether Supreme Court should reconsider and adjudicate afresh the issue of rejected votes and what reliefs should be granted.
The issue of rejected votes was addressed in the 2013 Presidential petition filed by Mr Odinga, but the Nasa leader wants the court to reverse its ruling.
Petitioner claims bar codes used in forms are fake and there are stations that were not gazetted.