Supreme Court judges and the battery of lawyers appearing for parties in the election petition will have to plough through 9,000 pages to be tabled by ODM presidential candidate Raila Odinga’s legal team.
It has emerged that among the prayers sought by the ODM team, which was in the process of filing their case before we went to press last evening, was for the court to nullify the re-election of President Uhuru Kenyatta.
Siaya Senator James Orengo, his Busia counterpart Amos Wako and Senior Counsel Nzamba Gitonga will be leading a team of 25 lawyers who spent the last 72 hours working on how best to present the case.
Sources said they were to present the documents packed in boxes after spending long hours perusing through Independent Electoral and Boundaries Commission (IEBC) data and other material to put together a watertight case.
The ODM presidential candidate has dismissed IEBC’s declaration of Uhuru Kenyatta as winner after garnering over 8.1 million votes against his 6.7 million votes in the August 8 polls.
“It was a rush because of time but we had to prepare, prepare and prepare. We had to also do some homework to ensure that we elaborate our case to the judges in the best way possible,” said a senior lawyer who is part of the team.
Hundreds of National Super Alliance (NASA) supporters gathered outside the Supreme Court gates as they waited in vain to escort the lawyers into the courtroom.
However, they were forced to leave when it got dark well before the Raila legal team arrived.
Dismissed on a technicality
The ODM presidential candidate had earlier declared that he would not seek the intervention of the highest court in the land but changed his mind on Wednesday. He said they had decided to contest the presidential election outcome in court, four days after Kenyatta was declared the winner.
The NASA team had argued that it did not expect to get justice from the courts based on the opposition’s experience in 2013 when Raila disputed the outcome of that election in which Uhuru was declared winner. The opposition’s case was dismissed on a technicality.
“Since the government has cracked down on civil society groups that had intended to file the case, the only option of showing the world at large that the declared candidate’s victory was ‘computer-generated’ is to move to court,” said Raila.
Raila said their change of heart offers Supreme Court judges a second chance to redeem themselves.
His thinly-veiled attack on the credibility of the court was quickly dismissed by Jubilee-allied politicians who asked that the opposition leader allows the court to handle the matter in a free and fair environment without intimidation.
Yesterday, it emerged that the ODM candidate also prayed to the Chief Justice David Maraga-led seven-judge bench that the electoral commission be held criminally liable under Article 75 of the Constitution, claiming there was conflict between personal interests and official duties.
ODM argued that there were anomalies in more than 5,000 forms 34A which account for over one million votes and would reduce threshold of President Uhuru’s victory to below 50 per cent plus one.
In those polling stations in evidence annexed, the opposition coalition claims that the results in the forms 34A had glaring inconsistencies that were deliberately done to ensure that Kenyatta wins.
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In the petition, ODM is questioning IEBC’s release of unofficial results transmitted to the national tallying centre and posted on its website without the scanned forms 34A and 34B. It termed the exercise as fraudulent.
According to sources privy to the petition, they will be seeking the court’s intervention to nullify the results, claiming that the commission breached the Constitution and the Election Law (Amendment) 2016 requiring that Presidential results be declared at the constituency level.
Challenged the move
“The High Court pronounced itself on this matter, which was also upheld by the Court of Appeal, after IEBC challenged the move to have the results tallied at the national tallying centre. Still, the activities were controlled at the national level,” said a member of the NASA secretariat.
They cited Section 39 of the Act which states that the IEBC shall electronically transmit in a prescribed form the tabulated results of a presidential election from a polling station to the constituency tallying centre and the National Tallying Centre. The NASA officials have argued that IEBC officials led by Chairman Wafula Chebukati affirmed the same when he promised to abide by the court rulings.
“He said both the forms 34A from the polling station and forms 34B from the Constituency Returning Officers will be uploaded in the Results Transmission and Presentation system for Kenyans to see.
The ODM legal team will also be demanding answers on why text results were uploaded from polling stations without presentation of laminated forms and the fact that just two days to the polls, the commission said 11,155 polling station out of the 40,883 polling stations did not have 3G and 4G mobile telephone network coverage
They have argued that although they promised to use 700 satellites phones to ensure the results were transmitted electronically, the commission did not raise any hitches encountered. The senior ODM lawyer said there were many anomalies despite the chair assuring Kenyans that he would only deal with form 34C, which will be as a result of authenticated results from officials in the 290 constituencies.
Also captured in the ODM documents is the phenomenon where the Jubilee Party presidential candidate is said to have maintained a consistent 11 per cent lead throughout the release of the results which the Opposition alleges was because of an algorithm introduced to rig the election.
And yesterday a commissioner who spoke to Saturday Standard on condition of anonymity said that they had worked so hard because they did not want the election to be nullified on the basis of a technicality.
“We therefore have to make sure that we have all the forms 34B as required by law,” said the commissioner.