Who voted on March 4 during Kenya’s General Election is the central question in two petitions argued during two days of hearings at the Supreme Court this week. Those petitions challenge the declaration by the electoral commission that Uhuru Muigai Kenyatta was elected president.
The petitioners claimed before the Supreme Court it was unclear which register was used to confirm the identities of voters who showed up at polling stations across Kenya to cast their ballots and therefore called into question the result of the presidential election. The petitioners also claimed that records of the Independent Electoral and Boundaries Commission (IEBC) showed discrepancies between the results of the presidential elections announced at the National Tallying Center and the lower electoral areas.
In response, IEBC Chairman Ahmed Issack Hassan and the commission as a corporate body said that there was no confusion about the registers they used and for that there should be no question about the validity of the presidential election result. They also argued that there were credible explanations for what appeared to be discrepancies between the national level tally and those at lower electoral areas.
The hearings took place throughout the day on Wednesday and Thursday, ending late in the evening.
Kethi Kilonzo, who represented petitioners Gladwell Gathoni Otieno and Zahid Rajan, presented to the Supreme Court instances of what her clients claimed showed irregularities that dented the credibility of the presidential election. Kilonzo played a video of presidential results announced in Nyeri County and said that when they compared those tallies with what was announced at the National Tallying Center, they found that more than 1,000 votes were added in favor of Kenyatta at the National Tallying Center and another candidate, Peter Kenneth. Kilonzo further said votes for Kenyatta’s closest rival, Prime Minister Raila Amolo Odinga, were subtracted at the National Tallying Center when compared with the results declared in Nyeri County. She said the same happened to the other five presidential candidates.
“This massaging of results, if you can call it that and I will call it that, is reflected in the final declaration of results,” Kilonzo told the court.
She also said that there was a huge difference between the figure of registered voters that the IEBC declared when announcing the presidential result on March 9 and the figure of registered voters based on the total calculated from all Forms 36. Form 36 is the manual form filled by the returning officer at the constituency level and is supposed to be completed in the presence of party agents and observers. There are 290 constituencies in the country plus a single constituency called Diaspora, which was made up of Kenyans residing in Uganda, Tanzania, and Rwanda. Kilonzo said that on March 9, the IEBC stated there were 14.3 million registered voters, but the total from Forms 36 was 13.5 million.
“It is my humble submission that this court should not shut its eyes to this irregularity,” Kilonzo said.
George Oraro, who represented Odinga, said that his petition was not just about the validity of the presidential election.
“It is about restating and safeguarding jealously the minimum acceptable standard of our elections,” Oraro told the court. He argued that a pointer to why the credibility of the election should be questioned was the 86 percent voter turnout announced by the IEBC.
“This number of voter turnout you only get in Communist countries, and we know how they are achieved,” Oraro said. He argued that the electronic identification of voters at the polling station using their thumb prints was supposed to be the first check against any irregularities. However, he pointed out, many of the laptops provided to poll officials across the country failed, opening the voting process to manipulation.
Oraro further alleged that as tallying of the presidential poll went on at the National Tallying Center, party agents were kicked out and so they were unable to verify what IEBC officials were tallying.
“The results that we have today are results that have been unilaterally tallied by the First Respondent [IEBC],” Oraro said. He further alleged that an analysis of the IEBC’s own documents showed there in many instances votes were subtracted from his client’s total and votes added to Kenyatta’s total. Oraro said that when all these irregularities are taken into consideration then Kenyatta would not have met the constitutional threshold to be declared winner. For any candidate to win a presidential election in the first round, they must garner 50 percent of the votes cast plus one. Failure to that the constitution requires a run-off is held of the two highest scoring candidates.
Mohammed Nyaoga, acting on behalf of the IEBC, asked the Supreme Court to examine the allegations of the petitioners with “more than ordinary caution.”
“If you’re terming the acts of the IEBC as fraudulent, you’re basically saying that if the court orders a fresh election, you’re saying ‘I will not go to that election with that register’,” Nyaoga submitted to the court. “The petitioner is saying that they’ll not go to that election with the current IEBC.”
Another lawyer for the IEBC, Paul Nyamodi, accepted that the IEBC did amend, make alterations, and additions to the voter register, “but they were made in the discharge of the commission’s mandate.”
The lead lawyer for the IEBC, Aurelio Rebelo, said that failure of an electronic transmission the commission had used in the first two days of tallying to project the presidential results was not grounds to invalidate the election as was being demanded by the petitioners.
“It is a mere diversion. It is not law. It is not part of the constitution,” Rebelo told the court.
In making the closure on behalf of the IEBC, Nyaoga said that the standard of proof the petitioners needed to satisfy in proving their claims should be high because election petitions have a special status. He submitted that the standard the petitioners needed to satisfy was a higher degree than “a mere balance of probabilities.”
“Have you been given any evidence to support these allegations? The answer is a resounding no,” Nyaoga concluded.
On Monday, the court ordered a scrutiny of all forms filled at the country’s 33,400 polling stations and all Forms 36. It also ordered a recount of the results of 22 polling stations that Odinga had highlighted in his petition. The court released the results of that exercise on Friday, and all lawyers were allowed to comment on them.
Kilonzo and Oraro submitted that the results confirmed what had been alleged in the petitions they are defending. Kilonzo said that the report that the court found some forms missing from some polling stations was a serious omission.
“This report confirms that the returning officer of the presidential election made a declaration without completing the tally from all the polling stations,” Kilonzo said.
Nani Mungai, speaking on behalf of the IEBC, said that there were no missing forms from the polling stations because the commission provided all of them. He said that what appeared like discrepancies in the re-tallying were adequately explained in the affidavits of various election officials that had been provided to the court.
The lead lawyer for Kenyatta, Fred Ngatia, observed that there may have been “one or two” errors as found in the court’s report but that was not as a result of any omission or commission.
“There’s no mischief that can be attributed or no advantage that can be attributed to such clerical error,” Ngatia said.
Chief Justice Willy Mutunga said the court will announce its decision on Saturday, which is the constitutional deadline it has to make a judgement on the petitions.