After the 2022 General election results were declared by the IEBC chairperson, Wafula Chebukati, the Azimio la Umoja Coalition leaders Raila Odinga and Martha Karua filed a petition challenging the declaration of Hon. Ruto as the President-elect.
The Supreme Court Judges in their wisdom settled on nine key issues to determine the petition.
The Supreme Court sought to know whether;
1. The technology deployed by IEBC met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
2. There was interference with the uploading and transmission of Form 34A from the polling station.
3. There was deference between form 34A uploaded to the IEBC portal and that issued to the agents at the polling station.
4. The postponement of election in some parts of the Country resulted in voter suppression.
5. There was unexplainable discrepancies between votes cast to presidential candidates and other elective posts.
6. The IEBC carried out verification, tallying and declaration in accordance with the law.
7. The declared president-elect met the constitutional threshold.
8. There was irregularities and illegalities capable of affecting the final results.
9. What reliefs and orders can the Court grant?
Raila’s legal team subdivided the nine issues as follows;
Senior Counsel Philip Murgor was tasked to tackle issues 1, 2 and 3.\
Lawyer Julie Soweto tackled issues 3, 4 and 5.
Paul Mwangi tackled issue 6.
Senior Counse Orengo tackled issue 7.
Senior Counsel Pheroze Nowrojee tackled issues 8 and 9.
In issue number one, Senio Philip Murgor representing Raila, quoted the affidavit filed in Court by George Njoroge, a computer forensic expert proving that the IEBC servers were largely interfered with.
Prof. Githu Muigai representing the IEBC said that the technology was foolproof and that the election systems could not be hacked.
In issue number two whether there was interference with uploading form 34A,
Senior Philip Murgor said a group of 50 people stationed at Karen whose work was to intercept form 34As and edit them before posting them to the IEBC portal.
Prof. Githu Muigai said that no one can upload form 34A, not even the chairman of the commission Wafula Chebukati.
He proceeded to say that they are only transmitted from KIEMS kits by the presiding officers from the polling stations and that’s the end of the story. He said that the petition lacked merit. “The petition is full of generalities and innuendos, no evidence and nothing of probative value,” said Prof.Muigai.
In issue number three whether there was the difference between form 34As uploaded to the IEBC portal and that issued to the agents at the polling station,
Lawyer Julie Soweto representing Raila projected a Form 34A downloaded from the IEBC portal having the name Jose Camargo, she proceeded to tell the Court that the foreigner Camargo forgot to run away with her fingerprints after interfering with the Portal.
Mahat Somane representing the IEBC told Court that Raila had agents in all tallying centres where the results were tallied and submitted to the Bomas of Kenya. ” you had agents at the CTC, you had agents at the NTC, we have the original forms and you are saying your client’s votes were deducted. How?” posed Mahat.
In issue number four whether the postponement of elections in some parts of the Country resulted in voter suppression. Senior Counsel James Orengo said that the action by IEBC to postpone the polls in areas perceived to be Raila’s strongholds, directly impacted in the voter turnout.
Mahat Somane defended IEBC by saying that the allegations of voter suppression due to the postponement of elections in some parts of the Country is a hypothesis.
In issue number five whether there were discrepancies between votes cast to presidential candidates and other elective posts,
Lawyer Julie Soweto there was a discrepancy in Kirinyaga County between votes cast for Governor and President. She submitted to the Court that the discrepancy totalled 23,550 votes in favour of Ruto.
Fred Ngatia in rebuttal to Form 34A produced by Julie Soweto as evidence to nullify the 2022 presidential election, said that the form was made to deceive and mislead the Court. “The form that Julie Soweto presented, having the name Jose Camargo, do not have IEBC security features… they were made to deceive and mislead,” said Ngatia.
Issue number six is whether the IEBC carried out verification, tallying and declaration in accordance with the Law.
Paul Mwangi representing Raila, informed the Court that Mr. Wafula Chebukati disrespected the Constitution and was unable to secure the legitimate results of the election that was conducted. Further, he said that Chebukati literally manipulated the votes to ensure Ruto takes the victory.
Both Prof Githu Muigai and Mahat Somane for the IEBC maintained that Raila’s agents and the four descending commissioners were present throughout the verification process and did not complain until the tail end of the process. Hence their claims is made in bad faith.
In issue number seven whether the declared president met the constitutional threshold of 50% +1,
Senior Counsel James Orengo stated that the Country should have headed to a runoff since no candidate attained a maximum 50+ 1. He further a total turn out of the votes by IEBC do not tally up following the earlier announcement by Chebukati.
Mahat on the end defended IEBC by saying that Ruto was declared the winner after garnering 7,176,141 votes (50.49%) against Raila with 6,942,930 votes (48.85%).
In issue number eight whether the irregularities and illegalities was capable of affecting the final results,
Senior Counsel Pheroze Nowrojee representing Raila said that Chebukati had admitted declaring presidential results without announcing results from 27 constituencies when there was no danger to do so. According to the Lawyer, this irregularity could affect the final tally.
Mahat Somane on the hand told the court that Chaos at the national tallying centre prevented the Chairperson from declaring the results from the 27 Constituencies and by all means, the chairman had to declare the results because he had promised Kenyans the same.
On the issue number, what reliefs and orders can the Court grant?
Senior Counsel James Orengo, Senior Counsel Philip Murgor told the court to declare Mr. Chebukati unfit to hold public office, nullify the 2022 presidential results, and declare Raila the winner of the 2022 presidential election.
Prof. Githu Muigai urged the court to dismiss the petition and uphold that Ruto won the 2022 presidential elections in a free and fair manner.
Court’s Reaction during the hearing
Justice William Ouko sought to know from Orengo the relevance of rejected votes while computing the outcome of the votes.
Justice Smokin Wanjala wanted the petitioners to prove whether hackers could also change physical forms 34A being delivered by road to the Bomas of Kenya.
Justice Ndung’u questioned Lawyer Murgor if Form 34A can be edited and still maintain its handwriting.
Justice Ibrahim Mohamed questioned the constitutionality of Raila’s prayer to be declared the presidential candidate winner by Court.
The seven Judge bench is expected to give a Judgement of the petition on Monday, September 5, 2022. The highly awaited judgement will determine the fate of 2022 presidential election results.
Justice Lenaola questioned why Wafula Chebukati rushed to announce presidential election results despite the Commission having a 24-hour window before the constitutional 7 day mandate elapsed. According to Justice Lenaola, Chebukati did not use the extra day to resolve issues with the other four commissioners- Vice Chair Juliana Cherera, Irene Masit, Justus Nyang’aya and Francis Wanderi.
Justice Lenaola Further questioned why Chebukati went on to declare the presidential winner without announcing results from 27 constituencies. ”I know the events of August 15 are in our minds, but remember that there was an extra day where Mr Chebukati could have declared the result. Why did you not wait until that day, reach out to the Commissioners to address the questions on the 27 constituencies?” posed the Judge.
Prof Githu Muigai for the IEBC could not respond to the questions and pleaded for more time for Ruto and IEBC legal team to construct sufficient responses. The Court allowed their request, however, Raila’s lawyers submitted to the Court that Prof. Githu Muigai still failed to vanish the Court with the answers to the posed fundamental questions.
The Court however concluded the hearing on September 2, 2022, and the seven Judges retreated to write a verdict which is expected to be delivered on Monday, September 5.
To many Kenyans, the petition for the third time since the promulgation of the 2010 constitution, has again succeeded in putting the Apex Court of the Country to an Independent test.
