STATEMENT ON THE FILING OF A PETITION BY RT HON RAILA O. ODINGA AND H.E STEPHEN KALONZO MUSYOKA AT THE SUPREME COURT, NAIROBI
August 18, 2017
This petition has been filed by the presidential candidate for the National Super Alliance, (NASA) Rt Hon Raila Amolo Odinga, and his running mate, H.E Stephen Kalonzo Musyoka.
They have moved to court on the basis of specific irregularities that they have identified, which include numerous instances when their ticket was denied votes and others in which their competitor, Uhuru Kenyatta had undeserved votes added to his total.
Even though NASA agents in Rift Valley and Central Kenya regions were removed from polling stations and replaced by imposters who were caused to create fictitious names and sign blank result forms, the coalition has a substantial evidence of what transpired throughout the country.
Data analysts have examined over 25,000 results forms for vote declarations and detected 14,000 of them that had errors ranging from statutory documents not signed by returning officers, others not authenticated by official rubber stamp, and yet others that do not have agent names or signatures.
Some forms show one presiding officer’s name in charge of elections in multiple stations at the same time. There are 443 instances of un-gazetted polling stations, Forms 34A that are filled out in the same handwriting, blank forms, and others that have a polling station, names and details of agents as well as their signatures but are in spaces meant to show results.
A sample review of 5,000 polling station results from NASA’s agents reviewed against those supplied by the Independent Elections and Boundaries Commission (IEBC) showed a number of fundamental defects: the total number of votes added to Uhuru Kenyatta and deducted from Raila Odinga are significant, especially if you extrapolate this to 40,000 polling stations.
Votes cast for president (15,588,038) exceeded those for governors (15,098,646) and Members of the National Assembly (15,008,818) by 482,202 and 567,517 ballots respectively.
The law and the decisions of the courts required a number of things done, including voting, electronic transmission of results, by image and text to tallying centre, and the display of results in a public portal that is accountable, verifiable and accurate. These are the standards that determine whether or not results meet the constitutional threshold.
The IEBC mould flouted all these principles. Most strikingly, by the time of announcing the final result, the Commission’s Chairman Wafula Chebukati, purported his numbers to be final. This suggested he had received all the tallies from all the polling stations.
It has come to pass that by the time of making that declaration, the IEBC was yet to receive 11,883 polling stations results. The IEBC Chairman was yet to receive 17 constituency results, yet he did not qualify his announcement with the explanation that the difference was not sufficient to change final outcome.
One is left to ponder how then four days later the IEBC Chairman responds to NASA’s enquiry by saying they have not received 5,015 Forms 34A. This represents some 3.5 million votes. On what basis would he declare final results when according to him, the leading candidate was ahead by slightly over 1 million votes?
How would he declare results similar to the public portal when he has publicly claimed that the ones on the portal are not IEBC results, and without the benefit of the verification that was started and discontinued at the Bomas National Tallying Centre?
Returning Officers and Presiding Officers were recalled by IEBC to fill and adjust relevant accountable forms to ensure documents tallied with the final results.
The presidential election held on August 7, 2017 was so badly conducted and marred with such glaring irregularities that it does not matter who won, or who was declared the winner thereof.
The nature and extent of the flaws and irregularities so significantly affected the results that the IEBC cannot accurately and verifiably determine the number of votes any of the candidates received.
IEBC betrayed its charge to give effect to the sovereign will of the Kenyan people and instead delivered preconceived and predetermined computer generated leaders.
This election was supposed to be about using technology to curb fraud. Instead, the IEBC has allowed technology to be perverted to defeat the will of the people by leaving the door open to meddlers to enter their system, manipulate numbers and generate an artificial result.
A pattern emerges right from the IEBC refusal to host a recovery site for its server in Kenya to the brutal killing of Chris Musando. It stretches to the exclusion of 11,000 polling stations catering for over 7 million votes from the general standard for results transmission, and the transmission of text without scanned images. The series of gaps, whether deliberate or product of negligence, frustrated the use of technology to deliver an accountable results transmission process.
Worse, the process of relaying and transmitting results from polling stations to constituency to the National Tallying Centre did not meet the standard established in the Constitution: it was not simple, accurate, verifiable, secure, accountable, transparent, open or prompt.
The IEBC selectively manipulated, engineered and deliberately distorted votes and counted them in favour of Uhuru Kenyatta in order to affect the final result. It inflated votes substantially and significantly. The effect of this systemic and systematic manipulation and distortion of results renders it impossible to tell who actually won, let alone know whether or not the threshold for winning a presidential election was met.
IEBC set out to frustrate the people’s will and deliver a flawed election. The inescapable conclusion is that individual returns, even those appearing to be valid votes, had fundamental irregularities in law.
It is not possible to clean up these errors simply by correcting the sums. The entire process of tallying recording, transmitting, verifying and confirmation of results was so fundamentally flawed that you cannot talk of any meaningful results.
This petition asks the court and by extension the people of Kenya to nullify the entire exercise because it is fatally compromised, in order to pave the way for fresh, legitimate elections.