Anxiety gripped the Independent Electoral and Boundaries Commission yesterday after the Supreme Court indicted the electoral agency for bungling the August election.
In a marathon, day-long session, It cited “enormous” irregularities and illegalities. Over more than eight hours, both lengthy majority and dissenting opinions were read.
Deputy CJ Philomena Mwilu said the IEBC behaved “like a law unto itself” in the election process.
CJ David Maraga told the IEBC to “go back to the drawing board” and put in place a complementary system for the repeat presidential election.
Commissioners and staff nervously awaited the court’s final orders to see if they indicated criminality.
Mwilu said the voting system had either been hacked, votes were tampered with, or the IEBC had not admitted they botched the vote.
“IEBC’s contumacious disobedience of this order ... in critical areas leaves us with no option but to accept the petitioner’s (Raila Odinga’s) claims the IEBC IT system was infiltrated and the data therein interfered with or IEBC officials interfered with the data or simply refused to accept that it had bungled the whole transmission system and was unable to verify the data,” Mwilu said.
She was reading part of the court’s detailed ruling 4-2 on September 1 that nullified the reelection of President Uhuru Kenyatta.
The indictment left another big question — if the IEBC failed to run the election in accordance with the Constitution, who will run presidential rerun set set for October 17. That date is expected to be pushed forward, closer to November 1.
Raila challenged Kenyatta’s win by 54 per cent, about 1.4 million votes, saying the vote was stolen and there were numerous problems with the process.The Jubilee Party and IEBC say any errors were minor human mistakes, not intentional, and in any case the number of vote involved could not give Raila the win.
Yesterday, the Supreme Court explained it nullified the reelection largely because the IEBC refused to allow scrutiny of its computerised voting and results transmission system.
It also said the election was not a question of numbers but of the general integrity of whole process.
Justice Mwilu said the court’s earlier order to allow NASA to view the computerised data was “a golden opportunity” for the electoral commission to present evidence to debunk Odinga’s claim of interference.
“...but they disobeyed the court order,” Mwilu said.
“IEBC could not be excused for failing to allow [court-ordered] access to critical areas including the logs in and servers which would have otherwise helped the court to rule otherwise.”
Four of the seven judges faulted IEBC Chairman Wafula Chebukati for declaring presidential result before receiving all forms 34B from 40,883 constituencies. The four are CJ Maraga, Mwilu, Smokin Wanjala and Isaac Lenaola.
Most important and worrying, they said, Chebukati declared results relying solely on constituency forms 34B, some of dubious authenticity, and completely ignoring polling station forms 34A.
The judges said the chairman violated the Elections Act and the Constitution.
Though the judges agreed with lawyers that no election is perfect, they said IEBC behaved as though the Elections Act did not exist.
“The commission behaved as though the provisions of section 88 ( 5 ) of the Constitution requiring it to perform its functions in accordance with the Constitution did not exist,” the court said.
The judges declined NASA’s request to consider the rejected votes, saying the court had made its decision in the 2013 presidential petition.
“Elections are not only about numbers, as many people including some prominent lawyers would want us to believe,” Justice Mwilu said.
“Elections are not events but processes,they are not isolated but should give democratic solutions and good governance.”
The court said the process of getting a voter to cast his or her vote and have it counted is as important as the results themselves.
The IEBC was reluctant to fully comply with court orders on access to firewalls without disclosure of software versions, providing certified copies of certificates of penetration tests, giving GPS of KIEMS kits (instead provided GPS location of polling stations) and Information on whether the kits were deployed or not was incomprehensible.
The judges said IEBC’s defiance in critical areas left the court with no option but to accept the Raila’s claims the IEBC IT systems may have been infiltrated and compromised, its data interfered with.
If the IEBC didn’t have anything to hide, why did it disobey order for server access? it asked.
On IEBC claims delays were caused by a poor network, the judges aid the commission violated the law.
“Surely IEBC IT experts should have made arrangements for alternative transmission where it thought [stations and centres] would be far from either 3G or 4G network range,” Mwilu said.
Moreover, the court said, the IEBC had assured Kenyans it had considered every eventuality and announced it had engaged three mobile network companies.
The judges said places where there were alleged network problems, including Kiambu, Bungoma Busia, Bomet, Kisii and Vihiga, are all known to have fairly good networks.
On discrepancies, the CJ said there was no reasonable explanation why some forms had security features while others did not.
He said discrepancies were widespread and the IEBC failed to explain why some forms were photocopies, others had water marks and others had none.
The judges said the clear purpose of security features was to ensure accountability, but 189 forms were not filled out as required and 257 forms were neither filled out in the take-over section, which raised concerns on the kind of verification done by the chairman
They however rejected NASA’s claims the President wrongly used public funds to campaign.
They said there was no evidence Kenyatta used public funds to advertise achievements of his administration as his campaign tool.
The court said mere canvassing for candidates cannot amount to undue influence.