Opposition leader Raila Odinga’s lawyers have been allowed ‘read only access’ to IEBC servers without endangering their firewall.
“The petitioners and the third respondents shall be granted a read only access of information related to number of servers, files without the disclosure of software version,” Justice Isaac Lenaola said on Monday.
Lenaola said the petitioners should also be given access login trails of users into the IEBC servers.
The Supreme Court judge also said the petitioners should also be given access to password policy and password matrix.
“They should also be given certified copies of certificates of penetrations test prior to elections, specific groups location of KIEMS within August 5 to 11,” he added.
“A certified list of KIEMS kits procured and not used during elections.”
Lenaola said applicants must take into account the time the court has in making the final ruling.
He further said that IEBC should submit certified copies of original Forms 34A and 34B.
The stage is set for a major battle between NASA, President Uhuru Kenyatta and the IEBC after the Supreme Court last evening accepted crucial evidence and documents.
In sweet victory for the NASA Presidential flagbearer whose 900-page affidavit was rejected by the same court in 2013, Raila will now have a chance to demonstrate that key documents used by the IEBC were a “forgery”.
Raila claims the IEBC printed fake forms 34A and 34B to justify what it refers to as “fraudulent” results that were used to declare Uhuru the winner of the August 8 race for State House.
“I am advised by my advocates on record, and believe the same to be true, that the majority, if not all of these forms, are forgeries, and amount to a massive fraud committed on the People of Kenya,” Raila said.
But during the pretrial hearing on Saturday night, the IEBC lawyers and those of President Kenyatta united in opposing the admission of the new set of documents, claiming they were filed out of time.
Raila’s 2013 affidavit was knocked out on a similar technicality by the then Supreme Court that was headed by Willy Mutunga.
But in their ruling yesterday, the seven-judge Bench said the three respondents – including the IEBC and its chairman Wafula Chebukati had failed to demonstrate that the documents would change the character of the petition.
“The application therein has not claimed nor demonstrated that the filing of the documents and annexures in question seek to introduce new evidence or change the character of the petition,” said Justice Smokin Wanjala.
“The retention of the documents and annexures in question on the court record would in our view not jeopardise or seriously undermine the ability of this court to hear and determine the petition within the time limit of 14 days.”
NASA has included barcodes in the analysis of the forms 34A and 34B.
For instance, NASA says in its evidence the barcode analysis for Navakholo constituency in Kakamega county appears as “Organisational Principles World Health Organisation”.
The information revealed by the barcode analysis of forms 34B that the IEBC filed for Kipipiri constituency shows information relating to the prevention of liver disease by an organisation abbreviated as NCBI.
But the judges deferred to today morning a major ruling on whether the former Prime Minister will be allowed to audit the electoral commission’s electronic system, including the servers.
CJ David Maraga said the ruling shall be rendered today at 9am.
Raila claims Jubilee hacked the results transmission system and insists an audit would expose who won the vote.
In his court papers he says that Uhuru’s victory was based on a mathematical formula and a fixed algorithm factor.
“It is in light of the foregoing that I am advised by my advocates on record, and believe the same to be true, that only a system audit of all the Commission’s infrastructure can answer the many questions and gaps surrounding why what was supposed to a seamless system of integration of voter registration, voter identification and results transmission, failed at the tail end,” Raila said.
The judges further allowed Attorney General Githu Muigai and the Law Society of Kenya to come on board as friends of the court.
But it was not the same case for applicants Benjamin Barasa and consultant Isaac Oluochier, whose applications were dismissed.
The judges however agreed with independent candidates Michael Wainaina and Ekuro Aukot that they would be prejudiced if they are locked out of the petition.
Also locked out was lawyer Charles Kanjama, who had applied to be a friend of the court.
On the ICT Association of Kenya, the judges said it does not meet the criteria to be an interested party.
Yesterday NASA demonstrators who wanted to hold prayers outside the Supreme Court buildings were teargased and dispersed by police. But their leaders, attending a church service at the All Saints’ Cathedral, remained optimistic that they will get justice (see Page 2).
Deputy President William Ruto urged Kenyans, irrespective of their political affiliations, to allow the Supreme Court to do its work without intimidation and coercion.
Ruto said there was no need for any person to try to exert pressure on the judges, whom he described as competent individuals who are up to the task.
Addressing Kiborokwa African Inland Church faithful in Uasin Gishu county on Sunday, the Deputy President said the manner in which Kenyans voted at the August 8 election showed that the country is progressing democratically.
“We should not undermine our democratic process that we showed the world on August 8 by engaging in acts of lawlessness. We should maintain our peaceful coexistence as we wait for the outcome of the Supreme Court and the will of the people,” he said.
On Saturday, during the pretrial conference held at 7pm, lawyers representing Raila clashed with President Uhuru’s legal team and those acting for the IEBC over issues that should be heard by the court.
While Raila’s lawyer James Orengo argued that it was critical for them to access the IEBC’s electronic system and statutory results declaration forms, his opponents said what was being sought was unrealistic.
It was Orengo’s submission that it would require only two days to review the logs and kits.
“It is impractical and impossible to audit IEBC electronic systems in two days – our experts say it requires at least three weeks,” Muite submitted for the IEBC.
Lawyers Fred Ngatia and Ahmednasir Abdullahi, who are both acting for Uhuru, on their part accused NASA lawyers of going out to fish for evidence to enable them to make a case.
“What NASA is essentially doing is demanding for evidence. They are saying that if we don’t get this evidence, our case will collapse,” Abdullahi said.
Orengo had also asked the Supreme Court judges to consider four volumes they filed on Friday.
The volumes consisted of affidavits that Orengo said contained “a bombshell” that would leave the court with no option but to nullify Uhuru’s win.
However, the IEBC and President Uhuru said the documents had been filed out of time and his lawyers said could jeopardise their client’s case as they had no opportunity to respond.