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Showing posts with label From The Supreme Court. Show all posts
Showing posts with label From The Supreme Court. Show all posts

Friday, September 2, 2022

Justice Mohamed Ibrahim Lone Question to Lawyers During 2022 Kenya Presidential Election Petition Hearing


Hon. Justice Mohamed Ibrahim of the Supreme Court asked lone, yet interesting question during the siting of the 2022 Kenya Presidential Election Petition 

The lone question asked by Mohammed Ibrahim is:

1. Would you expect us to make a determination on the chaos that occurred at the National Tallying Centre and attribute blame yet the matter is not before us?

Justice Smokin Wanjala Six (6) Questions to Lawyers During 2022 Kenya Presidential Election Petition Hearing

Justice Smokin Wanjala of the Supreme Court asked Six (6) questions during the siting of the 2022 Kenya Presidential Election Petition 

The Six (6) Questions asked by Justice Smokin Wanjala are:

1. What is oversight if the commissioners are not involved?

2. What was the supplier of technology, Smartmatic International, maintaining in the elections system?

3. What was the maintenance of the server by the Venezuelan?

4. If purpose of call to Chebukati by Joseph Kinyua was to influence the decoration of results, are we to assume they (NSAC) already knew the results?

5. On the voter turnout announced by the chairman and said it would rise, how relevant is it in determining whether a candidate garnered 50% plus one.

6. When calm restored at the National Tallying centre, why didn’t the chairperson include the results of the 27 constituencies in the announcement?

Justice Njoki Ndung’u Seven (7) Questions to Lawyers During 2022 Kenya Presidential Election Petition Hearing

Justice Njoki Ndung’u of the Supreme Court asked Seven (7) questions during the siting of the 2022 Kenya Presidential Election Petition 

The Seven (7) Questions asked by Justice Njoki Ndung’u are:

1. To IEBC- You said the term commission can be used in multiple senses. How do we know which sense applies and when?

2. What happens if the IEBC chairman announces the wrong results, or becomes incapacitated or dead? Who will announce the result?

3. What is the role of the other commissioners?

4. Since the IEBC chairman is emerging as a powerful person, who checks him/her?

5. What happens when the chairperson decides to work with the CEO who is not vetted?

6. When results come for the other seats and announced or declared at constituency, how is that information transmitted to public?

7. When transmitted, are the commissioners involved or is it CEO only or it is the chairperson only involved in the declaration of the transmitted results?


Justice Isaac Lenaola Five Questions to Lawyers During 2022 Kenya Presidential Election Petition Hearing

Justice Isaac Lenaola of the Supreme Court asked Five (5) questions during the siting of the 2022 Kenya Presidential Election Petition 

The Five (5) Questions asked by Justice Isaac Lenaola are:

1. Could you speak to the qualitative and quantitative value of the numbers and what is the test to apply?

2. Why was Chebukati in a hurry to announce the presidential election results yet he had an extra day to do so, then reach to the other commissioners, arrive at a consensus and address the concerning the results from the 27 constituencies?

3. Talk about Regulation 87(3) of the Elections Act.

4. The format of the elections results Form was initially jpeg, at which point does it convert to PDF, forget the CSV.

5. What do you want the court to do about the submission that Chebukati lied about the visitation by the National Security Advisory Council?

Justice William Ouko's Six Tough Questions to Lawyers During 2022 Kenya Presidential Election Petition Hearing

Hon. Justice William Ouko of the Supreme Court asked six (6) Tough questions during the siting of the 2022 Kenya Presidential Election Petition 

The Six (6) Tough questions asked by Justice William Ouko are:

1. What constitutes stray ballot and how are they distributed to counties?

2. Did you have instances where a voter walked in a polling station voted for one candidate and not the others?

3. Was Wafula Chebukati appointed as an agent for the presidential election by the commission or was as national returning officer in his capacity as the chairman of the commission?

4. Assuming manual register was used, are you able to say what was the actual number in the polling stations?

5. Respond to what Okiya Omtatah presented in a power point demonstrating that 1.6 million votes were streaming in many hours after closure of voting.

6. Explain why the commission stopped streaming the results live on a screen at the National Tallying Centre?

Hon. Lady Justice Philomena Mwilu, Deputy Chief Justice and Vice President of the Supreme Court Itchy Questions to Lawyers During 2022 Kenya Presidential Election Petition Hearing

Hon. Lady Justice Philomena Mwilu, Deputy Chief Justice and Vice President of the Supreme Court asked Nine (9) itchy questions during the siting of the 2022 Kenya Presidential Election Petition 

The nine (9) itchty questions asked by Lady Justice Philomena Mwilu are:

1. Clarify what is the constitutional role of the six commissioners under Article 140 of the Constitution. Juxta-pose their role against that of the secretariat and the chairperson.

2. The fact that numbers are undisputed, comment on the walking out of the four commissioners almost as the chairperson was almost to announce the results.

3. Does their walking out mean anything under Article 140? If it does why?

4. Did the postponement of eight electoral areas affect only presidential vote? Have the subsequent election returned a different result to the turn-out? If they have, in what respect?

5. What is the IEBC supposed to do when there are no agents for the candidates since Article 81 places burden of ensuring that we have a fair and free election on IEBC?

6. What is the position to be taken by a commission in an election dispute?

7. What is the role of the seven commissioners?

8. Is it a position to be taken by any party or neutral like IEBC? If they take a position as they have done in this case, what is the court to do?

9. Tell me what IEBC was supposed to do. On one hand they were being told to hurry up yet they still had another day?

Tuesday, March 19, 2013

How Jubilee Rigged Elections - The CORD Propaganda

Panic has gripped the Jubilee Coalition headed by Uhuru Kenyatta as details unravel on how the 2013 Presidential Elections were manipulated to hand him a win by the Independent Electoral and Boundaries Commission – IEBC, that is now the subject of a Supreme Court petition.

The emerging details point to a shocking scheme hatched by circle of advisors and government functionaries within the intelligence and civil service, way before the elections.
Analysts scrutinizing documents ahead of the Supreme Court petition by the Coalition for Reforms and Democracy challenging the results, were stuck by how technology was also used to aid Uhuru “defeat” Raila Odinga of CORD.

“Kenyans can remember well that some curious things happened with regard to the so called provisional results that IEBC kept churning out”, says one of the lawyers handling the CORD petition.

“It was a statistical impossibility. Between March 4th – March 7th, Raila Odinga was consistently stuck at 43/44% while Uhuru stayed at 53%. Musalia was stuck at 2.8% while the margin between Uhuru and Raila remained at 600,000-700,000 votes. This was impossible considering that results were coming in randomly from all over Kenya. Yet these figures remained consistent”.

After a confusing Friday 8th March when IEBC postponed announcement of final constituency results till Saturday, a quick operation was put in place to force acceptance of the results, amidst anxiety by Kenyans that the voting process had been manipulated.
IEBC’s James Oswago reportedly called media houses late in the night for a surprise final announcement of constituency results Friday 12.30am without indicating who had won. 

Throughout the week IEBC had warned media from declaring anyone the winner. However 30 minutes later KTN and NTV got a “nod” to call the elections. From there on events moved quickly. At 1.30am KTN flew a banner indicating Uhuru Kenyatta was the winner. Several stations in surprise followed suit. Kenyans would wake up on Saturday morning to all TVs proclaiming “President Uhuru”, almost 12 hrs before Isaack Hassan finally announced Uhuru’s win on Saturday afternoon.

The Weekly Citizen in this exclusive report can now report stunning details of a rigging plot that would have passed undetected if all players had stuck to the script and the “tyranny of numbers” theory had not fallen flat on its face on March 4th.

According to CORD insiders and several statistics analysts who have examined the IEBC voter register when it closed on Dec 18th, over 1,500,000 extra votes were “unexplained votes” votes that were for the presidential result alone. Since according to the IEBC, every voter was given 6 ballot papers, IEBC will be hard pressed on how this happened.

If these allegations are proven then, Uhuru’s tally will render his  6,173,433 vote announced by the IEBC to 4,673, 433. Which could mean that Raila Odinga could have won the election if what CORD claims is true.

The well calculated scheme was based on 3 critical things that had to be done to force in Uhuru. The most important was to force a first round win for Jubilee.

“It was obviously clear to us that any run-off would result in an anti-Kikuyu vote in which only Kalenjins and Kikuyu’s would vote for Uhuru while Raila takes off with the rest of the country’, says Central Kenya Senator Elect over drinks at a popular Nairobi spot on the day the IEBC announced Uhuru as President. “Winning Round One was never an option. It had to happen”

Getting the numbers was an issue that had worried TNA strategists one year before striking an alliance with William Ruto’s URP as the Jubilee Coalition. Even if Ruto’s Kalenjin backyard was convinced to vote for Uhuru, the numbers Kalenjins brought in were still not enough. Though the “Tyranny of Numbers” propaganda was sold as a winning formula, insiders knew the truth held a different reality. The 50% was simply not there. The best Jubilee could manage was force a run-off their researchers said they would lose.

The tyranny of the numbers was the psychological component of the whole game; and the so was “PEACE” campaign enterprise, says a member of the civil society 

“It is Funny that the tyranny of numbers theory perpetuated by Political Analyst Mutahi Ngunyi done in February 2013 mentions the same figures Uhuru got in the final tally” says popular blogger Robert Alai.

Several contingency plans were made to ensure the plan succeeds. One was to ensure that the Kikuyu and Kalenjin voter turn-out was to hit 95% while hoping that CORD base’s turn-out would remain at the traditional 65% to 70%.

Like many assumptions made by the Jubilee strategy team, their plan on turn-out was based on assumptions that CORD’s base would barely attain their traditional turnout.  
The second critical factor was use of technology to help add up numbers as the infamous tyranny of numbers depended on factors outside Jubilee’s control.

This plan to be used was borrowed from Ghana’s December 2012 Presidential Elections. The election which is now being contested at the Ghanian Supreme Court was won by President John Mahama who was announced to have secured 50.7% of votes, enough to avoid a run-off against NPP candidate Nana Akufo-Addo with 47.7%. Akuf-Addo has filed a petition with evidence that the vote was won by manipulating the electronic system.

In the Ghanian petition, proof has been revealed the company hired by the Ghanaian Election Commission to supply data services – SuperLock Technologies Ltd – also had a contract with the National Democratic Congress to supply the same services to the party that included tallying. In the petition NPP says it had found irregularities such as cases of over voting and instances when people not registered by the new biometric finger-printing system were able to vote.

According to the NPP and the other parties, these numbers announced by the Ghana’s Electoral Commission did not correspond with actual votes recorded in the 275 constituencies. They allege tampering of numbers by the suppliers of IT services in favour of John Mahama. The commission also reported that turnout was at an all time high of 81%.
In a dramatic incident during the elections, NPP stormed the electronic suppliers premises and claimed to have caught the company’s data personnel altering results before transmission to the National Tallying Centre

Similar to the Ghanaian case, the company that supplied Kenya’s IEBC with the electronic data and call centre services is Ken Call. The company whose connection to IEBC were never made public was charged with supplying call centre services and hosting the data base from where the polling station results were remitted to the IEBC.  Ken Call also has a contract with Uhuru Kenyatta’s The National Alliance party to supply tallying services of results from polling stations!

“Results from Returning officers at polling stations being transmitted electronically were first relayed to Ken Call’s servers for onward transmission to Bomas”, an IEBC official told Weekly Citizen.

“Imagine the same server was being used to tally results for TNA! This is where the electronic tampering of results took place as it was easy to access the same server which was serving both the IEBC and TNA and managed by the same company. When questions started being raised about the contradiction between figures announced at polling stations and the ones on IEBC screens at Bomas, the system mysteriously crashed!”

The official says it is unclear when the company was hired by the IEBC and why the commission ignored the conflict of interest.

The Weekly Citizen has discovered that like the Ghanaian case the plan by to rig the Kenyan Presidential vote was 3 pronged;

First, encourage the purchase of BVR kits by the IEBC. The technology was simply meant to hoodwink the public and crash when plan B was to be effected. Using unorthodox means that included bribing IEBC officials, the more experienced 4G solutions which serves India that has over 500 million voters was disqualified and Code Inc given the job to supply the kits. Code Inc went into liquidation and was renamed Electoral Systems International after the Fijian government exposed the company to be a branch of the Canadian Intelligence Organisation. Part of the system’s technology was supplied by a company linked to a Mr Chirchir, a former Commissioner at the IEBC

Secondly, as Ghana’s NPP claims in their petition, the ruling party used Super Lock Technologies Ltd to hack into the system and pre-determine a mathematical formula that adjusts figures as they come for both candidates while keeping any other candidates at a predetermined formula to ensure they do not harm the intended outcome. (This possibly explains why Uhuru’s margins with Raila never changed even with random results coming from all over the country).  Yet even with this plan, Jubilee knew they would have to top up “few” numbers based as the 50% + 1 was still proving elusive with a week to the election.

The third and final strategy was the real plan. Play with Kenyans’ minds by manipulating results and establishing a lead for Jubilee then crash the system and go manual. This was arranged by declining to have a back-up server which would retain evidence of the manipulation. With only one server, a deliberate crash would be final and would destroy evidence.

According to Maina Kiai, former chairman of the a human rights organization the technology was a red herring.

“This election was meant to be manual from start to finish loopholes included” he writes in his Saturday Nation column. “A manual result is what would allow different results to be announced at the Constituency, County and Bomas. All these electronic gadgets and equipment were meant to pull wool over our eyes”

“Even with this plan, the team knew they would have to top up numbers based as the 50% + 1 still proved elusive with a week to the election” says a TNA Mp Elect.
Then March 4th came.

While the scheme was to “minimally” add votes to the “tyrannical numbers” to enable a Round One win, everything went wrong on March 4th Election day as the electorate in key battle ground areas stunned Jubilee strategists with an anti Uhuru vote.

Luhyas expected to vote for Musalia up to 50% rebelled and went for Raila. The 30% of the Kamba vote expected from Kitui through Charity Ngilu failed to come in. Coast where Jubilee were expecting a 50-50 share with CORD bolted to Raila. CORD and Raila took off with 70% of the Kisii vote. In Kalenjin land, voter turnout fell below 70%. The “tyranny of numbers” was becoming a flop. With predictions by Jubilee statisticians collapsing all over on Election Day, the team after consultations had to quickly switch to Plan B. 

“This plan was aided by the decision by the IEBC to keep open some polling stations well after 5pm, the official closing time” says an ODM Chief Agent who manned a County in Rift Valley. Plan B called for manual voting to improve the numbers. “In Rift Valley CORD agents were reportedly intimidated and some left the polling stations as die hard URP activists some of whom manned the polling centres now took over. “It was hard to control what they were doing after that. Some people were now being given 2-3 presidential ballots to get their target number. You had no idea who was voting and who wasn’t.”

As former Attorney General Amos Wako disclosed at a press conference last week “It appears the IEBC had several registers as they did not even gazette any. We will be asking the Supreme Court to examine which register was being used and which one was valid”.

It is obvious CORD’s petition will put IEBC to task show an increase in voter registration after the registration ended on 18th Dec. In some cases the register grew by 35% in one constituency after reconciliation. On December 18th 2012 @IEBCpagedeclared there were 14,337,399 Registered Voters. The Final Register indicates there were 13,352,533 Voters

Other than manipulate the register using technology, technology was also becoming an obstacle to get the right numbers and ensure a Round 1 win. The Voter Identification Kit which required fingerprint identification for voters could not be manipulated as “ghost” voters could not get in to vote or double voters. They had to be physically present.
By 2pm, a crisis meeting was convened by Jubilee strategists on how to shore up numbers in Rift Valley. 

Mysteriously the Finger Print Identification kit stopped working. Manual voting was introduced.

The IEBC electronic tallying system which was relaying fast results with a 53% lead for Uhuru four hours after 5pm, suddenly slowed down with just a million votes in. Then the “IEBC” server which in reality belonged to Ken Call crashed. And the results slowed down to a trickle. By 11pm IEBC announced to the press that announcement of provisional results had been halted and pushed to Tuesday.

Most IT experts confirm that the amount of data being remitted for the 33,000 polling stations in terms of text messages could not have crashed the system.

“It is very little data. Safaricom, Airtel and Orange deal with almost 300 million text messages daily. The data from polling stations was not that much”, says an employee of Safaricom on condition of anonymity. “What is puzzling is why on such an important exercise IEBC and Ken Call did not install the standard back-up server which would saved remitted results and revived the process”.

The CORD team believes Isaack Hassan’s explanations were a cover-up and that the technology “use” and “failure” were part of the strategy to rig the elections.  

“The electronic system kept Uhuru and Raila at particular percentages to psychologically make Kenyans believe Uhuru was winning and Raila was losing. However since the figures at Bomas were not matching forms 34, 35, 36, and the Jubilee “tyranny of numbers” formula had failed, the electronic tallying system had to go.

Maina Kiai is more brutal in his assessment calling IEBC’s excuses “hogwash”. “First it was that the server crashed. Then, than one side of the disk was full and unable to accept results. Then that presiding officers were slow in transmitting. The maximum capacity required for data from 33,000 polling stations is just 2GB, less than what a mobile phone can take!”

With the plan in progress for manual voting, by Wednesday Rift Valley Turn-Out was being reported at 90% while Central had risen to 95%. Based on the Kriegler report this numbers were obviously inflated. However more was required as Uhuru had dropped below 50%. So delays had to be created for Returning Officers to re-adjust figures.

The diversionary tactic kept Kenyans patient as Issack Hassan kept talking of delays caused by “verification”, “technological challenges” and introduced a phrase “complex elections” that would be repeatedly used throughout the Bomas process.

With the announcement that manual voting would be used, the vote tallying took a different outlook as the initial 48 hrs in which all provisional results were to be announced dragged into days and tallying began afresh. Questions about discrepancies by CORD officials resulted in IEBC throwing them out. A compliant media was threatened into silence and no criticism of the IEBC was to be aired.

The Bomas tallying centre was placed under heavy security as the once accessible Chairman of the IEBC now avoided all media questions regarding the process.

“This is the most opaque electoral commission and ranks lower than even the late Kivuitu Commission” said one of CORD’s lawyers James Orengo.

In the deliberate confusion that followed strange results started flowing off the IBC press briefings. Among the cases are;

Wajir North had a 92% Voter Turn-Out for spot whose history indicates 50-60%. In Wajir West, if the Final Register hadn’t been adjusted, 99.45% of the Registered Voters would have voted. In Nyaki East in North Imenti with 12000 registered voters 15300 are reported to have voted!

In Kajiado South, the people who voted (42,276) is higher than the people registered in Dec (41,040).Register adjusted to 46,218 to conform. In Sigor, the people who voted (19,704) is higher than the people registered in Dec (19,337).Register adjusted to 21,341 to conform.

“How does Turkana Central with 25,970 votes as at 18th Dec end up with 34,486 voters after reconciliation?! Where did 8,516 voters come from?” asks Dr Makodingo, a political analyst on his twitter page.

Worse still Worse still, IEBC’s figures refuse to add up inspite of efforts to “correct errors”. Valid Votes (12,222,980) plus Rejected Votes (108,975) add up to 12,331,955  and not their tally of 12,338,667!!

“It is strange that 1,500,000 persons only cast a vote for a president and across Kenya this number is reflected in joint votes cast for Senators, Governors, Mps, Women Reps or County Reps. It is an obvious case of manual ballot box stuffing and double voting for Uhuru” says Statistics analyst Dr Makodingo

Presently CORD may only have to prove that the 8,000 votes votes Uhuru received to add to his declared 50% is fraudulent. If that is done the Supreme Court can order a fresh poll within 60 days.

5 Most Intriguing Kenyan Presidential Election Petitions

The common chorus for election losers, from their opponents (surprisingly) has always been ‘Go to Court! Go to Court! File a Petition.’ In the backdrop of this chorus is that the Kenyan judiciary has never ruled in favor of the petitioner in a presidential election. The chorus is thus informed by the idea that the petition will be buried in such a barrage of legal complexities that it will never materialize. A lot has changed, especially in the last few years, but the question is, is it enough?

1. Matiba v. Moi (1993)

Most people remember this case only and with good reason. Matiba was the ‘rightful winner’ in the first multiparty elections, rigged out by an entrenced political system and weakened by wrangles in the opposition.
You can call him Daniel...okay no, you can't.

A strong candidate backed by the central region and basing his election on the incumbent’s errors in the his first 14 years in office, he lost because he and Kibaki (later 3rd President) split the core vote.
Tereeeeen...oh, what's that? Its no longer 1992? Ah....

In the second case (the first one matched the one filed by Orengo), Matiba covered the issue of intimidation, violence and other election irregularities.

As with all other cases determined by the highly biased judiciary of the Moi years, Matiba vs. Moi was dismissed on a flimsy reason. Kenneth Matiba had become physically incapacitated sometime prior to or during the elections and had given his wife the power of attorney. He did not personally sign the petition, a technicality that KANU lawyers pounced on until Justice Riaga Omolo struck out the petition. It later came back to haunt him, the judge, during vetting in 2012 when he was declared unfit by the Board specifically for this decision. “It gratuitously showed grave disrespect for disabled people, castigating the petitioner in an ungenerous and uncalled for manner.”

2. Orengo vs. Moi and 12 others (1994), Matiba vs. Moi, Imanyara vs. Moi

Orengo’s petition challenged Moi’s eligibility on the grounds that he had already served two terms in office. The challenge was that the term-limits rule applied to Moi who had already served three terms : 1979-1983, 1983-1988, 1988-1993. The case was simply about the intention of Parliament in passing Act No. 6 (1992) which the petitioners in the three different cases argued should have been retrospective (applied to Moi as well as future presidents).
Orengo, and the rest of the Young Turks. ..and no, the beard was not a necessity....

The court determined that a statute had to have the words to the effect that it could operate retrospectively and that “from the plain language of the statutes, they were to be interpreted to operate prospectively…”

 3. Mwai Kibaki vs. Daniel Arap Moi (1997)

Kibaki in 1997 was Matiba in 1992, number 2 and clearly rigged out by the incumbent. Kibaki published the notice of petition in the Kenya Gazette, the official government publication which Moi by his duties as a citizen and president should have been able to access and read.
Apparently, CAPS LOCK on a typewriter was not recognised too...

Judges Emmanuel O’Kubasu, Mbogholi Msagha and Moijo ole Keiwua struck out Kibaki’s petition on the simple basis that he had not personally served Moi with the petition.

This decision was later upheld in the Court of Appeal by Judges Chunga (CJ), Aa Lakha, Owuor JJ and Omolo (again).
This clearly unfair decision led to the explicit declaration in the new petition rules to avoid such a scenario: “Upon filing a petition, the petitioner shall serve the petition on the respondent within 24hours. Service of the petition on the respondent shall be —(a) directly on the respondent; or (b) by advertisement in a newspaper with national circulation,” Rule 8 says.

4. Mwau vs. Moi, 1992/3

When Mwau entered the political scene in 1992 as a candidate for the presidency and the Westlands parliamentary seat, he did so with the flair that later became his personal brand. He was a former police officer with a curious interest in the letter of the law. Mwau, stickler for detail and with billions to burn, rushed to court and filed a petition seeking to nullify Moi’s victory on the grounds that he (MOi) and all other candidates had not been properly nominated. He argued, in part, that he be made President because all the other candidates had failed to use the ‘right paper’ to present the lists of their nominations. He had only garnered 6, 499 votes, 0.1% of the total vote, the least in the elections, even less than David Mukaru Ng’ang’a of whom I bet you have never heard.

“There might be much difference between a foolscap of 8 1/2 × 13 1/2 in (216 x 343 mm) and the International Standards Organization A4 measure of 21cm × 29.7cm, but Mr. Mwau argued strongly that candidates do not have the leeway to decide which rules to observe and which to ignore.”

While the case was dismissed, the court praised Mwau for his keen eye for detail, resilience and tenacity.

President Moi and all the other candidates, save for Mwau, in the 1992 election ignored the rules and presented their documents on A4 instead of foolscap paper.

Mwau, representing himself, “implied that a pool of presidential candidates who could not understand the distinction between A4 and foolscap could not be fit for high office. He also stated during the case that the simple disregarding of such a key rule was an indicator that the president would likely ride to roughshod over the law.” Since then, presidential candidates have been extra keen on the stipulated size of paper.

5. CORD vs. IEBC/Jubilee 2013

Whichever side one’s political allegiances lie, this case will be the ‘Mother of all Cases’. The CORD legal team is a curious combination of lawyers Mutula Kilonzo and Orengo as advisors, both on opposite sides in the case the latter filed against the former’s client, president Moi, in 1992. Also in the team is Gitobu Imanyara, another petitioner who lost a petition where Kilonzo represented Moi.

Pheroze Nowrojee, another member of the team, represented was in Kibaki’s 1997/8/9 petition legal team. Note also the presence of Amos Wako, former Attorney General, in the legal team. If anything, this case promises to be precedent setting. Note how the March 4th elections were defined by the previous presidential election petitions. The extra care paid to the type of paper, the method of filing the petition and the application for disclosure of evidence. The time the SCOK can take to determine the case is also explicitly stipulated, seeing that Kibaki’s petition against Moi was determined 18 months after the elections.

Thursday, March 14, 2013

Part Of Evidence CORD is set to table before Supreme Court

In what promises to be a Titatic battle at the supreme court, CORD has officially announced that it is officially filling its petition against IEBC presidential figures released . and as part of their evidence, here is a sneak preview of their inside argument.
' IEBC cannot do simple addition! The standard newspaper today on pg 5 published the total presidential votes from the 47 counties. The total given for Raila is 5,407,889 against Uhuru's 6,173,433. The total voter turnout was given as 12,338,667. If you are a mathematician you will find  that IEBC concealed 67,343 of Raila's votes. This figure would have pushed the voter turn ... to 12,406,010. 50% of this gives you 6,203,005. This figure is higher than Uhuru's 6,173,433 which apparently gave Uhuru  50.07%! The actual score should have been 49.76%!'
Meanwhile, CORD received a boost when Leaders drawn from Kisii and Nyamira Counties have vowed to support the petition filed by CORD to have the election of President Elect Uhuru Kenyatta nullified.

IEBC FAILURES AND THE ROLE OF THE COURTS

I am taking the liberty to post my following comments and observations for your perusal, hoping it will be helpful in assessing whether the elections management process met the reasonable standards of integrity, efficiency and cost effectiveness.

It has been rather unfortunate that IEBC messed up the electoral process, right from the outset, starting from the flawed and irregular procurement of the BVR (biometric voter registration kits), Electronic Voter Identification Devices, Ballot papers and even general electoral materials such as indelible marker pens, solar powered lanterns, polling station banners etc.

Moreover, all appeals (I believe numbering 5) made by aggrieved parties (bidders) before the Public Procurement Administration and Review Board were thrown out on basis of the overriding public interest (that the elections were round the corner) with the exception of the case of supply of solar lanterns where the appeal was allowed as there was a clear element of impropriety and fraud involved concerning the company awarded the tender.

The courts have also delayed the finalisation of the appeals and then used the same excuse of public interest as was in the case of the appeal by AVANTE INTERNATIONAL (USA) for the supply of Electronic Voter Verification Devices and in case of the supply of ballot papers and where the court process was delayed.

In another instance, again the proceedings were delayed and the Judicial Review (JR) application dismissed on grounds that the matter had been overtaken by events and which was due to delivery orders being placed by IEBC while the JR proceedings were on going. This was contrary to law which requires that procurement proceedings come to a halt once a JR application is filed by the aggrieved party as was in case of an appeal involving the supply of general electoral materials, including supply of indelible marker pens, solar lanterns, tally printers , polling station banners, etc.).

When I challenged in court the fraudulent supply of BVR kits I met a similar fate. Mr. Justice David Amilcar Shikomera Majanja's court blocked me and even made a mockery of the law when it certified the case urgent but fixed the hearing of the application several months away. In all instances the judge ensured that the IEBC got away with its schemes despite glaring irregularities and anomalies and led to the country spending tripple the amount had the tender award been made to India's 4G Solutions as per the original recommendation. There is more than meets the eye as vested interests have been at play, including inn the courts. I have voluminous documentation to support my stand.

Some have described the huge budget as a gravy train to be exploited.

The election management process was definitely flawed owing to dysfunction/ non-function of the various equipment/technology and that has not been addressed or captured at all.

My assessments in this regard are as follows:

The system for transmitting provisional results was procured in a hurry through IFES (and which procurement was funded by USAID) and the process was done at the last moment around Christmas/New Year with a bidding period of about 5 working days only, without going on a proper international open tender. Other more credible and well known systems (eg from AVANTE TECHNOLOGY of USA ) were apparently disregarded despite having been successfully used in Uganda.

The public needs to know how many bidders participated and what system was procured and from whom. Safaricom supplied the mobile phones and the connection network but who supplied the software system and who was the systems integrator? IEBC must answer these questions.

The other point is that the mobile phones did not have a power back up such as solar chargers which were missing and I suspect that was one of the main cause of the problems encountered and needs to be addressed in case of a presidential rerun to avoid the delays recently experienced.

The problem could have been solved if IEBC would have used the election transmission system employing satellite phones which procurement (under IEBC TENDER NO 1/2012-2013) was cancelled at the last moment when the item was surreptitiously removed from the list of items without IEBC giving any reasons.

Had the satellite phones been procured from THURAYA or IMMARSAT, the results could have been transmitted through the satellite system using the satellite phones without being dependent on SAFARICOM.

Why did IEBC leave everything till the last minute and why was the item deleted?

Also the procurement of the electronic voter verification device (EVID) was marred with irregularities, when IEBC bought the device from FACE TECHNOLOGIES of S.Africa which had never been used or proven and despite the fact that the sample given by FACE was completely different at the time of tendering from what was supplied - this was irregular and the tender awarded despite the fact that the device did not properly work at the time of demonstration.

Why was FACE again being favoured by IEBC? Please note that it was previously favored by the IEBC Tender Committee for the procurement of the BVR Kits, to the detriment of the more qualified and lower priced Indian bidder (4G Solutions), which was the front runner that was initially shortlisted as potential supplier and the other S.African bidder, Lithotech, which was knocked out using flimsy excuses.

It is the vested interests of IEBC which is the cause of the current failures.

The BVR kit supplied by SAFRAN MORPHO was not powered by a proper solar power back up system and that could explain the malfunction experienced in the elections and in this case the procurement was again questionable as the procurement process was compromised due to a hiked up price and the delayed procurement owing to the vested interests. This in turn caused a resultant delay in the voter registration process taking off and disenfranchised many voters due to the short time allocated for the process.

IEBC was captive to vested interests and was not properly prepared to take up this exercise.

There was also poor management in connection with the procurement of the ballot papers and which was done at exorbitant pricing.

I shall be happy to avail supporting documents to back up the above information which I am posting here in good faith, hoping that it may prove useful in demanding a complete forensic audit of the IEBC.

Best regards
Okiya Okoiti Omtatah

Wednesday, March 13, 2013

Do CORD Really Have A strong Case Against IEBC?

The Independent Electoral and Boundaries Commission (IEBC) has said Coalition for Reform and Democracy (CORD)  leaders are relying on rumours in lodging their election petition at the Supreme Court.



Speaking through a phone interview, commission Chairman said Isaack Hassan said CORD officials are now desperate looking for evidence, since they have realised they don’t have a watertight case against the IEBC.


Hassan claimed that his commission conducted the just concluded elections with professionalism and said he and his commissioners are ready to face CORD leaders at the court of law if they have a case to file.


He urged them not to shout on cameras but instead file a case at the Supreme Court to prove how their won.


Hassan, who is a lawyer by professional, said conducting elections in Kenya is a challenging job which needs support from across the political divide but not condemnation.


CORD Coalition has been challenging the outcome of the just concluded General Election, where Uhuru Kenyatta was declared the

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STATEMENT BY SAFARICOM ON WITHDRAWAL OF LEGAL PETITION BY CORD COALITION

Safaricom welcomes the formal withdrawal of the legal Petition filed against it at the High Court of Kenya by Mr. Eliud Owalo a representative of the CORD Coalition.

Pursuant to the withdrawal of the Petition by the CORD representative, Safaricom has undertaken to play its part in explaining and or providing to the IEBC for onward presentation to the Judiciary all pertinent information.

This information is limited to what can be legally disclosed, what is technically available and specifically only that which directly emanates from its contractual scope with the IEBC.

The above notwithstanding, we stand by our earlier public statement of 6th March 2013 and we maintain that our contractual mandate to the IEBC was fully and properly executed.

We would also like to assure the public and all interested parties in this matter that we are fully cognizant of the importance of this process and the need for transparency by all players involved and this is the basis upon which we have extended our full cooperation to the courts.

Nzioka Waita,
Director Corporate Affairs, Safaricom Limited

The Only Question That IEBC has Never Answered

According to the Final Figures Released by the IEBC on the Presidential Results; I do believe that the figure would be out soon clearly for the public, IEBC has an open question to answer to the Millions of Voters.

The number of Votes cast does not tally with rejected votes plus votes received by all the candidates combined.This is the biggest mystery of all behind the disputed Kenyan polls.

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