Azimio leader Raila Odinga now wants the Supreme Court to quash the win by Deputy President William Ruto even if he lost.
In a detailed rebuttal to the court filings by Ruto lawyers opposing his petition, the Azimio boss says that even if the UDA leader outwitted him on numbers, the integrity of the polls was so deficient that they could not be trusted.
The rebuttal filed at the apex court on Monday says that the illegalities and irregularities allegedly occasioned by the IEBC run deep and cannot produce a credible outcome.
“if the election cannot meet the constitutional muster then the numbers do not matter as [it] is ultimately not free and fair…” the rebuttal reads.
He says his petition has adduced sufficient evidence that warrants throwing out the election on a balance of probabilities and that the court should also hold the commission chairman Wafula Chebukati accountable.
The response rehashes the claims in the main petition that the chairman conducted the presidential election as a one-man show and in an opaque manner that exposed it to improprieties that dented it.
“The 2nd respondent [Chebukati] violated articles 10 (b) and (c) of the national values and principles of governance relating to inclusiveness, transparency and accountability by purporting to conduct the verification process of Forms 34B and Forms 34A unilaterally at the total exclusion of the other commissioners,” it reads.
By not declaring results from 27 constituencies and precluding the majority of the commissioners from the verification and tallying process that birthed the outcome he announced, the rebuttal says, the declaration that gave Ruto the prize is not credible.
“...by preventing the majority of members of the commission from verifying the results in forms 34A and 34B in order to generate Form 34C….the results announced cast doubt into the validity of the election as this court observed in Raila 2017…”
It also charges that the polls became irrevocably impugned when Chebukati allegedly enlisted the services of officials from the ballot paper printing company without the other commissioners.
Even more damning, it said, the chairman “unlawfully allowed the 9th respondent’s [Ruto] agent to enter and use a corrupted laptop in the tallying center amounting to collusion with third parties to give an undue advantage to [him]”.
They say they have also demonstrated that by declaring results before factoring in returns from 27 constituencies that were largely Raila’s bastion, Chebukati willfully used his office and influence to give Ruto an advantage in the polls.
They accuse the IEBC boss of violating the Anti-Corruption and Economic Crimes Act.
On the question of the standard of proof that the court should demand on him to prove his case, the Azimio chief says that the judges should adopt its past level set in 2017.
The papers say in rendering their determination, the threshold of evidence that should guide the judges should not be higher than the ones used in civil matters.
Balance of probability that the alleged offence happened should be the basis of their decision, rather than on the basis of beyond any reasonable doubt.
“...the petitioners’ submission is that presidential petitions do not require a higher standard of proof than that required in civil matters. Indeed it is because fundamental constitutional rights are involved that the application of normal civil standards is necessary.”
“Accordingly, the courts cannot abrogate their constitutional mandates nor seek to circumvent it by requiring a higher standard of proof.”
Interestingly, the submission by lawyers' lobby LSK also supports this standard of proof.
The society has applied to be enjoined in the case as a friend of the court.
Its amicus brief urges the court to weigh the evidence before it on a balance of probabilities rather than on a beyond reasonable doubt basis.
It says the beyond reasonable doubt standard is applied in criminal cases and that Commonwealth jurisdiction does not apply it in poll disputes.
The society has also urged the court to depart from its 2013 ruling on rejected votes and to allow them factored in determining the overall voter turnout.
