Two of the petitions filed challenging the final tally of Kenya’s March 4 General Election, seek not just a fresh presidential poll but call into question the credibility of the entire process. A third petition, however, seeks a readjustment of the final declared presidential result by excluding rejected votes from the count.
Independent Electoral and Boundaries Commission (IEBC) Chairman Ahmed Issack Hassan, however, asserts in his responding petition that he conducted the election as the constitution dictated, and those opposing the results cannot prove beyond reasonable doubt that he acted otherwise.
The IEBC declared Deputy Prime Minister Uhuru Muigai Kenyatta the winner of the presidential election on March 9. On the same day, his closest competitor, Prime Minister Raila Amolo Odinga, said he was going to challenge the result.
The first to file a petition challenging the presidential result were individuals involved in Kenyatta’s campaign. Moses Kiarie Kuria, Dennis Njue Itumbi, and Flowrence Jematiah Sergon filed their petition mid last week at the Supreme Court registry, and it is listed as petition number three of 2013. Kuria acted as a spokesman for President Mwai Kibaki’s Party of National Unity and more recently has been identified as a strategy adviser to Kenyatta. Itumbi is a member of Kenyatta’s communications team. In their petition, a copy of which ICC Kenya Monitor obtained, they are asking the Supreme Court to rule that rejected votes should not count in the final tally for each presidential candidate. This, they argue, would see Kenyatta’s win rise to 50.51 percent, up from the 50.07 percent that Hassan declared on March 9. Kuria, Itumbi, and Sergon have listed Hassan as the first respondent and the IEBC as the second respondent.
Second to file their petition were Gladwell Wathoni Otieno and Zahid Rajan. Otieno is the Executive Director of the Africa Center for Open Governance, an advocacy organisation. Rajan is the editor of Awaaz magazine. They filed their petition on the deadline day, this past Saturday, and it is listed as petition number four of 2013. Their petition, a copy of which ICC Kenya Monitor obtained, focuses on what they say are the failings of the IEBC that call into question the entire election that involved votes on six different elective posts.
Otieno and Rajan state the measures required by law and the IEBC’s own regulations that had been put in place to guard against multiple voting, erroneous tallying, or other irregularities failed. They state that the most of the electronic voter identification kits failed, as the IEBC admitted, on voting day. The electronic voter identification kits consisted of a laptop and a finger identification machine that was supposed to be used at each of the more than 33,000 polling stations. Otieno and Rajan claim that even if they had worked, they were not linked to a central database of the voters’ register. This meant, they argue, that whenever the kits identified a voter, that person’s name was not automatically subtracted from the central database of the voters’ register, thus acting as a check against multiple voting or ballot stuffing, and acting as a running tallying of how many people are voting.
Otieno and Rajan argue, “that in a democratic election the means by which a winner is declared plays a central role. The votes must be verifiable by the paper trail left behind. And it must be demonstrated that there exist favourable circumstances for a fair election and that no person was prejudiced by an act or omission of an election official.” They have named Hassan, the IEBC, Kenyatta, and his deputy, William Samoei Ruto, as respondents.
Third to file his petition was Odinga, who was declared the runner-up in the just concluded poll. Odinga filed his petition at the Supreme Court registry, and it is listed as petition number five of 2013. An unsigned copy of it has been posted on a website called Kenya Democracy on Trial. Odinga’s chief campaign manager, Eliud Owalo, confirmed to ICC Kenya Monitor that the documents on that website were genuine even if they were not signed. Odinga makes specific allegations concerning the presidential election in his petition, such as the votes for president in several constituencies were higher than the voters registered in those constituencies or that there were differences between what was announced in Nairobi and what was recorded at the constituency level. Odinga further alleges that a call center, Kencall EPZ Limited, co-hosted on one server the database of the IEBC together with that of The National Alliance party of Kenyatta, and both these databases were synchronized. Odinga alleges that the two databases shared the same IP address.
Odinga also calls into question the entire election that saw voters chose people to fill six elective posts at the local and national level. Odinga alleges that the IEBC was working with several voter registers whereas in law it is required to have only one voter register for the election. He states that when the voter register was closed in December, the IEBC announced total registered voters were 14,337,399. Later in February, he states, that the IEBC said that it had found about 20,000 people who had registered twice, and, Odinga argues, the total tally should have reduced to 14,267,572. He claims, however, that the IEBC said when declaring the result of the presidential election that the total number of registered voters was 14,352,533, which is about 85,000 above what was the figure given in February. Odinga has named Hassan, the IEBC, Kenyatta, and Ruto, as respondents.
The IEBC has uploaded only one responding petition on its website. This is Hassan’s response to Odinga’s petition challenging the election. The IEBC has not even uploaded its own corporate response to any of the petitions filed against it.
In Hassan’s response, he denies the March 4 election was “a sham or a travesty.”
“The high voter turnout and the peaceful nature of the election is a testimony to the integrity of this election,” Hassan states in his responding petition.
He argues that because Odinga’s petition seeks to fuse a challenge to the presidential results with questions about alleged violations of the Bill of Rights this takes “away the jurisdiction of the court to determine the many issues raised in the petition with the exception of the sole issue of the validity of the election.”
Hassan also questions Odinga’s character, stating that he has never conceded defeat in any presidential election he has contested.
“In 1997, 2007 and now in 2013, the Petitioner has never conceded or accepted the will of the people as expressed in the outcome of those elections. The principle of similar facts evidence comes into play,” Hassan argues. “In essence the Petitioner is seeking the validation of the court to overturn the will of the people and be allowed a second bite at the cherry and to contest the presidency afresh while people have spoken loudly against that result.”
Odinga first ran for president in 1997, where he was declared third. The declared runner-up of that election, then opposition leader Mwai Kibaki, contested the results in court under the old constitution that did had only general provisions for presidential elections and no strict timelines. Kibaki’s petition was never heard because the case was thrown out on a technicality. Odinga tried again to become president in 2007. He disputed the results of that elections in which he was declared runner-up and called for street protests because he said he had no confidence in the courts at the time. Those protests turned violent with police firing on protesters and different militia groups attacking their perceived opponents. It is for their alleged roles in that violence that Kenyatta and Ruto are facing trial at the International Criminal Court.
The Supreme Court has scheduled a pre-trial conference for Monday, March 25, by which time all replies to the petitions are expected to have been filed.