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1
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PRESIDENTIAL ELECTION PETITION NO. 1 OF 2017
H.E RAILA ODINGA……………………………………..……..1ST PETITIONER
H.E STEPHEN KALONZO MUSYOKA…………...……….....2ND PETITIONER
AND
THE INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION…………………….........1ST RESPONDENT
THE CHAIRPERSON OF INDEPENDENT
ELECTORAL AND BOUNDARIES COMMISSION………..2ND RESPONDENT
H.E UHURU KENYATTA……………………………………..3RD RESPONDENT
3RD RESPONDENT'S AFFIDAVIT
IN REPLY TO THE AFFIDAVITS OF 1ST PETITIONER AND DR.
NYANGASI ODUWO
I WINIFRED WACEKE GUCHU, a resident of Nairobi and of Post Office Box
Number 38601- 00623, Nairobi make oath and state as follows;
1. I am the Executive Director of Jubilee Party (“JP “). I was the Deputy Chief
Presidential Agent for JP’s Presidential team during the recently concluded
2017 general election for purposes of Regulation 57 of the Elections (General)
Elections, 2012. I am thus competent to make this affidavit. I now produce a
true copy of my appointment letter which is marked “WG 1”
2. I make this affidavit on the basis of matters within my own knowledge and as
regards matters of law, on the basis of advice from counsel on record which
advice I verily believe to be correct.
3. In the aforesaid elections, Jubilee nominated Uhuru Kenyatta and William Ruto
as its Presidential and Deputy Presidential candidates respectively. (“JP
candidates”).
RESULTS
4. On 11th August 2017, the 2nd Respondent announced that the JP candidates
won the Presidential election contest on the basis of the following results, which
were arrived at after the 1st and the 2nd Respondent had assured themselves that
the results were accurate:
2
NAME VOTES PERCENTAGE
JOHN EKURU LONGOGGY
AUKOT
27,311 0.18%
MOHAMED ABDUBA DIDA 38,093 0.25%
SHAKHALAGA KHWA
JIRONGO
11,705 0.08%
JAPHETH KAVINGA KALUYU 16,482 0.11%
UHURU KENYATTA 8,203, 290 54.27%
MICHAEL WAINAINA
MWAURA
13,257 0.09%
5. JP as a party also won a majority of positions in all the other five elections
conducted on the same day. The following is a summary of the results in the 5
other elections for Gubernatorial , Senate, National Assembly, Women
Representative and Members of County Assembly:
Kenya 2017 Presidential Vote Distribution
2017 Number of Governors by Party
11,705
13,257
16,482
27,311
38,093
42,259
6,762,224
8,203,290
Shakhalaga Khwa Jirongo
Michael Wainaina Mwaura
Japheth Kavinga Kaluyu
John Ekuru Longoggy Aukot
Mohamed Abduba Dida
Joseph William Nthiga Nyagah
Raila Odinga
Uhuru Kenyatta
Presidential Election Votes
1
1
1
2
2
2
13
25
0 5 10 15 20 25 30
KANU
MCCP
NARC
FORD-K
Independent
WDM-K
ODM
Jubilee Party
Number of Governors per Party
3
Kenya 2017 Number of Senators by Party
Kenya 2017 Number of Woman Representatives by Party
1
1
1
2
2
2
13
25
0 5 10 15 20 25 30
CCU
FORD KENYA
PDR
ANC
KANU
WDM-K
ODM
JUBILEE PARTY
Senators
1
1
1
1
1
1
2
3
11
25
0 5 10 15 20 25 30
ANC
EFP
FORD KENYA
INDEPENDENT
MCCP
PDR
KANU
WDM-K
ODM
JUBILEE PARTY
Woman Representatives
4
Kenya 2017 Number of Members of National Assembly by Party
1
1
1
1
1
1
1
1
2
2
2
2
3
3
4
5
5
8
12
13
19
61
140
0 20 40 60 80 100 120 140 160
PNU
ND
NAPK
MUUNGANO
FAP
DP
CCU
0DM
PDP
KPP
KNC
CCM
PDR
MCCP
EFP
FORD-KENYA
FK
KANU
ANC
IND
WDM-K
ODM
JP
Number of Members of National Assembly by Party
5
Kenya 2017 Number of Members of County Assemblies by Party
6. The difference between the votes cast in favour of JP’s candidates and those cast in favour of the Petitioners, at the date the results were declared, is
1,441,066. The said difference is very significant and emphatically
demonstrates the resolve of the people of Kenya to exercise their free and
sovereign will.
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
2
3
3
4
4
4
5
5
6
7
8
9
10
10
12
14
15
22
27
38
47
51
87
105
338
582
0 100 200 300 400 500 600 700
AGANO
DDA
DPK
KADU-ASILI
NARC
PPK
RBK
SAFINA
CCU
DC
FPK
KNC
MGPK
ND
NVP
PDU
PICK
PTP
SDP
KSC
NARC-KENYA
DP
KADU
LPK
FAP
UDP
PDP
PPOK
KPP
NARC-K
MUUNGANO
NARC
CCM
PDR
EFP
MCCP
PNU
Kanu
ANC
FK
WDM-K
IND
ODM
Jubilee Party
Number of MCAs per Party
6
7. According to observers of Kenya’s political landscape, voter registration patterns prior to the election and several polls indicated that JP enjoyed
significant support in Rift Valley, Upper Eastern region, parts of Nyanza and
Western Kenya, North Eastern Kenya, increased support in Coast , Nairobi and
in Central Kenya accounting for a potential voter base of 7, 500, 000 while
NASA had firm support in parts of Nyanza, parts of Western, parts of Coast
and in lower Eastern region, accounting for a potential voter base of 6,000,000.
The ultimate results are therefore not surprising.
8. The Petitioners have not presented any or any credible evidence and/or material that would invoke the jurisdiction of this honourable to disturb the sovereign
will of the people of Kenya exercised so emphatically on 8th August 2017.
CONDUCT OF ELECTION IN CONTEXT OF ARTICLES 81 TO 91 of
THE CONSTITUTION OF KENYA
9. I have nevertheless now read the Petition and Supporting Affidavits filed by the Petitioners to challenge the validity of the election held on 8th August 2017and
indeed the entire electoral process. I make this affidavit in response and in
opposition thereto and in particular the affidavit of Dr. Nyangasi Oduwo.
10. Having perused the Petition and the supporting affidavits filed with it, it is clear to me that the Petition is loosely structured around four (4) broad pillars, all
erected on a foundation of quicksand. The said pillars are as follows:
i) That the results declared on 11th August 2017 are invalid on account of
irregularities and numerical errors the Petitioners allege they have found
in Form 34A and Form 34B;
ii) That the 2nd Respondent had no legal basis for declaring results while
approximately 11,000 Form 34A’s had not been transmitted
electronically which the Petitioners contend was the exclusive statutory
mode of transmitting results;
iii) That the Presidential Election was marred and significantly
compromised by intimidation and improper influence or corruption
contrary to Articles 81(e) (ii) of the Constitution as read together with
the Elections Act and Regulations 3 and 6 of the Electoral Code of
Conduct;
iv) That the Presidential Election was so badly conducted, administered and
managed by the 1st Respondent as to contravene and violate Articles 38,
81 and 86 of the Constitution of Kenya as read together with section 44
of the Elections Act;
11. It is immediately clear to me that the Petitioner has gone to very great lengths to exaggerate facts, peddle outright falsehoods and suppress material facts in a
bid to mislead this Honourable Court and thereby obtain an unjust advantage to
7
the prejudice and subversion of the will of the Kenyan people expressed in a
free, fair and credible election.
12. I have actively participated in all aspects of the electoral process either directly or through agents of JP. I can unequivocally state that in my view the 1st
Respondent and its staff, including the 2nd Respondent, have conducted the
entire process with remarkable diligence, efficiency and in full fidelity to the
standards established in the Constitution and all the electoral laws.
13. To my knowledge, the electoral process, as with all human endeavours, does encounter problems all over the world but the elections held on 8th August 2017
exceeded the statutory threshold for a credible election.
14. For clarity, I reject all the allegations, both specific and vague, set out in the Petition and in the affidavits filed in support thereof, regarding the misconduct
and irregularities attributed to the 1st and 2nd Respondents.
15. The Petitioners dedicate a considerable portion of their Petition to attempting to demonstrate how hopelessly incompetent and inefficient the 1st Respondent is.
Nothing could be further from the truth and the Petitioner’s anger at the
Respondents must be viewed against the following facts and circumstances;
i. In 2013, the Petitioner participated in the Presidential election and was declared the runner up. He rejected the results on the basis, inter alia, that
the 1st Respondent had “stolen” the election from him.
ii. His claims were rejected by this honourable court in a decision reported as Raila Odinga & 2 others v Independent Electoral & Boundaries
Commission & 3 others [2013] eKLR
iii. The Petitioner, with the assistance of surrogates affiliated to an umbrella NGO entity known as Africog, including Mr Maina Wachira and Mr
Maina Kiai, immediately thereafter embarked on a project to undermine
the judicial authority of this honourable court and the confidence Kenyans
were developing in their constitutional and statutory institutions by making
scathing attacks in local, regional and international media on the court , the
1st Respondent and any other institution or individual who had played any
role in the election.
iv. The Petitioners also alleged, without any basis, that the election was in fact a military coup. They have repeated the same baseless claims again this
year both before and after the elections including filing a court case against
the Kenya Defence Forces.
v. In the intervening period, the 1st Petitioner has persisted in peddling, at every opportunity and forum, the false and untenable narrative that
elections can only be considered free fair and credible in Kenya if he is
declared the winner. I now produce several news articles, including an
editorial by the Washington Post on 18th August 2017which are in a
bundle marked “ WG2”
8
vi. Indeed, on 10th August 2017, even before the 1st Respondent had concluded the exercise of collating results from the 290 constituencies as
required by law, the Petitioners agents, through a letter of the same date
addressed to the 2nd Respondent, asserted that he was in possession of what
his agents called “the actual presidential election results contained in the
IEBC database” which indicated that he had won the election having
garnered 8,041, 726 votes against 7,755,428 votes for JP’s candidates.
vii. The aforesaid letter was also read out at a press conference televised to the nation and the world. The said letter and media briefing are produced at
pages 180 to 184 of the bundle that contains Mr Godfrey Osotsi’s affidavit.
viii. The Petitioners demand was a clear violation of the provisions of Article 2(2) of the Constitution of Kenya which states that: “No person may claim
or exercise State authority except as authorised under this Constitution.”
ix. The 1st Petitioner had a day earlier, on 9th August 2017 , indicated that the results for the entire 2017 general election, including all the other positions
( namely gubernatorial , senate, national assembly , women representative
and member of county assembly) had been irreversibly prejudiced by a
hack into the results transmission system of the 2nd Respondent. The 1st
Petitioner’s press statement to the effect has been produced at pages 172
to 178 of the bundle that contains Mr Godfrey Osotsi’s affidavit.
x. I am aware, from discussions I have held with colleagues in NASA, that the 1st Petitioner tried to coerce candidates nominated by NASA affiliate
parties for the gubernatorial, senate, national assembly, women
representative and member of county assembly positions to reject their
elective posts in solidarity with the Petitioners and so as strengthen the
false narrative that the election had been hacked but nearly all refused to
do so.
xi. The Petitioners now appear to have abandoned some of the aforesaid outrageous and outlandish allegations and have in lieu thereof directed
their attention to a new mutated allegation set out at Paragraph 14 of the
Petition, again false, that the Presidential Election was so badly conducted
and marred with irregularities that it does not matter who won or was
declared as the winner of the Presidential Election.
xii. I therefore intend, in the next section of this affidavit, to demonstrate why the 2017 election is the most efficient, accountable, accurate and credible
election Kenya has conducted to date.
Complaint NO 1: Non-Compliance with Electoral Law by 1st and 2nd
Respondents
16. During the 7 months or so that the 1st Respondent’s Commissioners have been in office, the 1st Respondent has outdone itself in establishing and overseeing
the creation of a very solid statutory and legal framework for the conduct of
free, fair and credible elections.
9
17. It is my firm observation that the 1st Respondent has scrupulously complied with all statutory requirements within the limits of human capacity. The
following are some examples:
a. In early 2016, the Petitioners and their coalition partners launched an unprecedented series of sustained and incessant attacks on the 1st
Respondent, its Commissioners and staff with the intention of creating
and sustaining the false narrative that the 1st Respondent was either
unprepared, partisan or incompetent.
b. The attacks on the 1st Respondent were accompanied by demonstrations led, coordinated and financed by the Petitioners and their coalition of
political parties, at the time known as CORD, which ultimately turned
extremely violent and deadly and led to several court cases including
the case reported as Ferdinand Ndung’u Waititu & 4 others v
Attorney General & 12 others [2016] eKLR wherein the learned
judge stated as follows at paragraph 52 of the judgement: “The
Petitioners however stand in better stead when they urge that the 9th
Respondent (INSPECTOR GENERAL OF POLICE) be ordered to
ensure the security, public safety and observance of the law. There is
evidence before me that the protest marches and demonstrations
organized by the 5th Respondent (COALITION FOR REFORMS
AND DEMOCRACY COALITION FOR REFORMS AND
DEMOCRACY) always commence peacefully but later become violent
and riotous: see the affidavits sworn in support of the motion by the
Petitioners.”
c. As a result of the aforesaid demonstrations, political parties were forced to initiate a bipartisan effort to address the grievances put forward by
CORD. On the 5th July, 2016, the senate and the National Assembly,
respectively, approved a motion that established a Joint Parliamentary
Select Committee on matters relating to the Independent Electoral and
Boundaries Commission and the conduct of elections in Kenya.
d. The mandate of the committee was inter alia to recommend legal, policy and institutional reforms to strengthen the Independent Electoral and
Boundaries Commission and improve the electoral system and
processes to ensure the August 2017 elections are free and fair and are
administered in an impartial, efficient, simple, accurate, verifiable,
secure, accountable and transparent manner.
e. The committee produced a report which included 3 draft bills of which amendments to the Elections Act were effected by the Election Laws
(Amendment) Act, 2016 which became operational on 4th October,
2016.
f. On 16th January 2017, Parliament enacted Section 44A of the Elections Act through the Election Laws (Amendment) Act, 2017.
g. Subsequent thereto, the 1st Respondent, after complying with the provisions of Section 109 of the Elections Act and the Statutory
10
Instruments Act, 2013, published the following regulations which were
reviewed by the Legal affairs Committee of the National assembly and
debated by the full house on 29th and 30th March 2017 and on 4th, 5th and
6th April 2017:
i. Elections (Registration of voters) Regulations; ii. Elections (Voter education) Regulations;
iii. Elections (General) Regulations; iv. Elections (Parliamentary and county elections) Petitions Rules,
2017;
v. Elections ( Technology ) Regulations, 2017; vi. The Elections (General) (Amendment) Regulations , 2017
h. In yet another unprecedented feature of election planning in Kenya, political parties , several citizens and NASA, either directly or through
surrogates including Maina Kiai , Africog , Katiba Institute , George
Kegoro , John Githongo and Gladwell Otieno filed over 40 cases,
exclusive of the over 400 cases related to party primaries, in courts all
over the country and at all levels seeking adjudication of disputes or
declaratory orders attacking numerous sections of the Elections Act and
other provisions of the various statutes that regulate the planning of
elections.
i. On average, between December 2016 and July 2017, the 1st Respondent was forced to divert critical resources, time and manpower to defending
at least 6 court cases per month.
18. The following are brief particulars of the said cases:
A. Petition No. 399 of 2016, Mugambi Imanyara and Another v AC & 3 others
Subject: Constitutionality of Sections 2, 6, 7, 8 and 14 of the Election Laws
(Amendment) Act 2016. Vide a judgment delivered on 16th of February 2017,
the petition was dismissed. The Petitioner’s sought to file a Notice of Appeal
B. Petition No. 56 of 2017, Council of Governors v Attorney General and Another
Subject: Constitutionality of Section 28 of the Election Act, 2011 as amended
by Section 10 of the Election Laws (Amendment) Act, 2017. This was the law
regulating and or baring party hopping. Vide a judgment delivered on 26th of
April 2017, the Petition was dismissed,
C. Petition No. 179 of 2017, Maendeleo Chap Chap Party
Subject: Challenging Section 10 of the Elections (Amendment) Act, 2017
prohibiting aspirants from party hopping 120 days from the date of the General
election. The Attorney General Raised a preliminary objection that the matter
was res judicata. The petition was dismissed.
11
D. Petition NO 371 of 2016, Center for Rights Education and awareness & 2 others v The Speaker of the National Assembly.
Subject: Dealt with the issue of the two thirds Gender principle in parliament.
The petition was allowed and parliament was given 60 days within which to
enact the two third gender rule. Both the National Assembly and the Senate have
filed notices of appeal.
E. Petition No. 401 of 2016, Wilbert Kipsang and the Attorney General.
Subject: Dealt with the issue of the two third gender principle in parliament.
The matter was raising similar issues with Petition no. 371 of 2016. The matter
was stood over generally by dint of the judgment in 371 of 2017 above. The
petition is mute.
F. Petition no. 162 of 2017, Apollo Mboya versus Attorney General.
Subject: seeking a declaration that the government delivery portal violates
Section 14 of the Election Offences Act which bars the Government from
advertising its achievements during the election period. The matter came up on
4th of May. Jubilee Party successfully opposed the grant of the interim orders.
G. Malindi Petition NO. 12 of 2017, Angaza Empowerment v IEBC & A.G
Subject: where the Petitioners were challenging the Constitutionality of the
Gazette notice issued by IEBC setting the calendar for party nominations. The
petitioners obtained ex-parte orders extending the deadline for political parties.
The matter was marked as settled by consent of the parties.
H. Court of Appeal NO. 105 of 2017, Maina Kiai and 2 others v IEBC and Another.
Subject: seeking a declaration that the announcement of presidential results at
the constituency level is final. The Court of Appeal vide its judgment delivered
on 23rd of June 2017 uphold the high court decision and declared to the extent
that Section 39(2) and (3) of the Elections Act and Regulations 87(2) provides
that presidential election results declared by the Constituency returning officer
are provisional. It is contrary to the Constitution and therefore are null and void.
I. Petition NO. 576 of 2015 (consolidated with Petition NO. 148 of 2016) , Andrew Kiplimo Sang Muge & others v the IEBC and another.
Sought a declaration that there exists a conflict between Article 177(1) & Article
177(4) of the Constitution on the term of MCA’s. Judgment was delivered on
27th of April 2017. The Petition was allowed to the extent that the term of the
MCA’s ends on 3rd of March 2018. The AG filed a notice of Appeal.
J. Kericho Petition No. 1 of 2017 as consolidated with Kericho Petition NO. 2 of 2017, Eric Cheruyiot and another.
12
Challenging the Constitutionality of the law requiring public servants to resign
six months before elections. The petition was allowed. The Respondents sought
to appeal the said decision.
K. Petition NO. 7 of 2017, Dr Samuel Thinguri Warwathe v Mary Mungai, Commissioner for Co-operative Development and 2 others.
Issue concerned public servants to resign six months before election. The matter
was consolidated with Kericho Petition NO. 1 of 2017 (above).
L. Nairobi Petition NO. 219 of 2016, Katiba Instutute and Another V AG & Parliament.
Challenging the Constitutionality of Part IV of the Elections Act and Part IV of
the County Government Act on the procedure for recalling an MP and MCA.
M. Petition NO. 60 of 2017, Shadrack Kinyanjui Wambui v IEBC & 2 others.
Issue concerned the voting rights of prisoners to be extended beyond the
presidential elections to include members of the County Assembly, Members of
Parliament and governors. Judgment was delivered on 31st of July 2017. The
petition was dismissed. The legal notice no 73 of 2017 issued by IEBC rendered
the entire petition moot.
N. Petition No. 142 of 2017, Okiya Omtata v Attorney General.
Challenging the constitutionality of Chapter Six working group on election
preparedness. The matter is still pending in Court.
O. Petition No. 68 of 2017, Okiya Omtata v Jubilee Party & 2 others
Challenging the requirement of clearance documentation of political candidates.
The matter is still pending in court.
P. Petition No. 47 of 2015, Okiya Omtata v IEBC and 2 others
Dealt with the registration of voters. Constitutionality of Section 3 of the
Election Laws (Amendment) Act 2016 on the voter registration documents and
voter registration deadlines.
Q. Civil Appeal no 105 of 2017, IEBC versus CORD & another.
On the issue of the tender in respect of the supply and delivery of IEBC Ballot
papers. The judgment was delivered in favour of the the ex-parte applicant at
the High Court. The Court of Appeal upheld the decision of the High Court
nullifying the award of the tender to Al Ghurair in a decision delivered on 9th of
June 2017.
13
R. Petition NO. 489 of 2016, Jared Juma v IEBC and another
Criteria on the mode used for shortlisting of Applicants for the IEBC
Commission. Judgment was delivered on 9th December 2016 in favour of the
Petitioner.
S. Petition No. 71 of 2017, Kenya Diaspora Alliance.
Seeking a declaration that Respondents have violated the rights of Kenyan
Citizens in the diaspora by failing to register them as voters.
T. Petition NO. 47 of 2017,
Seeks a declaration that birth certificates and expired passports are valid
documents for registration. Section 3 of the Election Laws (amendment) Act no
36 of 2016 is unconstitutional and also sought a declaration that a s singe
database of all citizens should be used to transact all affairs of citizens.
U. Petition NO. 161 of 2016, Okiya Omtata
Challenges the Constitutionality of Section 22(1)(b) of the Elections Act
introducing the education eligibility requirement for elective posts.
V. Petition No. 16 of 2017, Bado Mapambano Trust
Seeks a mandatory order to quash election laws (amendment) act of public
participation in the National assembly. Declarations that Section 44A of the
Elections Act violates Article 86 of the Constitution, Section provides for
complementary mechanism for voter identification.
W. Judicial Review No. 378 of 2017, National Super Alliance Seeking an order of certiorari to quash the decision of IEBC made on 29th of
May 2017 awarding the tender for the printing of election materials for the
presidential elections. Judgment delivered on 7th of July 2017. Application
allowed.
X. Judicial Review Case no. 648 of 2017, CORD versus IEBC
Challenging the award of the tender to Al Ghurair for printing of the ballot
papers.
Y. Petition no168 of 2017, Maina Kiai and others V IEBC
Challenging the importation of the electronic voter identification evids and
alleged breach of Section 44(1) (2) & (4) of the Elections Act & Legal notice
No. 78 of 15th of July 20015 on public participation. Judgment delivered on 14th
of July 2017. Petition dismissed for reasons that IEBC satisfied the requirement
for public participation.
Z. Judicial Review Case no 447 of 2017, Gladwell Otieno v IEBC
14
Seeking orders of mandamus to compel the IEBC to release the register of
voters for public inspection and gazette the final register of voters. IEBC
directed to avail the register of voters of all polling stations for inspection by
the public in the web portal or by any other means pursuant to Section 6(1) and
(2) of the Elections Act and regulations. Judgment delivered on 3rd of August
2017. Order made directed to IEBC to publish in the media a confirmation that
the register of voters is open for inspection.
AA. Judicial Review Case no 153 of 2017, Japheth Muroko v IEBC and KPMG
BB. Judicial Review No. 647 of 2016, CORD v AG & National Assembly,
Proceedings seeking to halt debate in parliament regarding Section 44A of the
Elections Act. Petition dismissed.
CC. Civil Appeal No. 224 of 2017, IEBC versus NASA
Judgment of the High Court set aside to the extent that public participation is
not a mandatory requirement in public procurement. Judgment delivered on 20th
of July 2017.
DD. Civil Appeal No 63 of 2017, AL Ghurair Printing & Publishing v CORD Challenging the execution of the contract as executed by the CEO of IEBC in
the absence of the Chairman and commissioners which decision was quashed
by the High Court. Appeal dismissed vide a judgment delivered on 26th of April
2017. Judgment of the High Court upheld.
EE. Petition no 241 of 2017, Cecil James Oyugi v IEBC & another,
Proceedings seeking to challenge the review of the tendering process, the
subject of adjudication of JR 637 of 2016. Petition dismissed vide a judgment
delivered on 13th of May 2017.
FF. Petition no 9 of 2017, Tutus Alila & 2 others v IEBC
Petition sought for orders compelling the IEBC to declare presidential results
within 7 hours of closure of polling stations. The petition was dismissed.
GG. Petition No. 373 of 2017, NASA v Defence Forces
Challenging the possible deployment of the Kenya Defence Forces (KDF) in
conjunction with other national security agencies before or during the 8th August
2017, General Elections. Mention on 22nd September 2017.
HH. Petition NO. 388 of 2017, Africog v IEBC & others
15
Proceedings challenging the alleged failure by IEBC to respond to the
Petitioner’s request dated 31st of July 2017 for information in accordance to
Article 35 of the Constitution seeking members of the public to be allowed
within 400 meters radius within the polling stations. Petition dismissed vide
judgment delivered on 7th August 2017.
19. Articles 10, 38, 81 and 86 of the Constitution enjoin the 1st Respondent to conduct elections that are free, fair, secure, and transparent, devoid of
discrimination, with full participation of the public and other stakeholders and
in a manner that is simple, verifiable and accountable.
20. The said principles have all been adhered to by the 1st Respondent, in that the 1st Respondent did the following:
a. Oversaw the successful increase of polling stations from approximately 31,000 in 2013 to 40, 883 in 2017. This represents a 32% increase in
polling stations. This led to better access to polling stations by voters
and reduced congestion in polling stations.
b. Counting , tallying and announcements of results in polling stations was therefore more efficient and accurate.
c. Updated the voter register, in electronic form, and led a voter registration exercise that pushed the number of registered voters from
14,352,545 voters in 2013 to 19,611,423 in 2017. This represents a
36.6% increase in the number of voters.
d. Approximately 15.3 million Kenyans turned out to exercise their sovereign right to vote on 8th August 2017 representing an 80% turnout
rate.
e. Procured the services of a professional audit firm, KPMG, which successfully undertook, for the first time in Kenya’s electoral history,
a thorough audit of the voters register which established that the voters
register did not contain the names 2 million voters as the Petitioners
had claimed following the 2013 elections.
f. Following the said voter register audit, the 1st Respondent made the entire voters register available for public scrutiny on its website. As a
result, accuracy of the voters register was exceptional. Consequently,
unlike in 2013, there were no allegations of multiple voter registers
made against the 1st Respondent.
g. In an unprecedented transparency initiative and following 5 separate protracted cases regarding procurement of ballot papers at the Public
Procurement Administrative Board, the High Court and at the Court of
Appeal, the 1st Respondent made arrangements for representatives of
the presidential candidates, members of the local and international
16
media and observers to travel to Dubai to assure themselves of the
integrity of the process.
h. Successfully procured and implemented the integrated electronic electoral system (known as KIEMS) that was used in the following
aspects of the electoral process:
i. biometric voter registration, ii. biometric voter identification and
iii. Electronic result transmission system.
i. The use of KIEMS was largely successful due to early procurement, deployment and training of staff on its use. To avoid the failure of the
system as happened in 2013, the 1st Respondent ensured the batteries
for the devises were adequately charged well in advance.
j. Presided over the procurement and distribution of election materials for the largest number of candidates in Kenya’s history including 45,000
KIEMS kits.
k. Recruited and trained 362, 858 election officials drawn from all corners of Kenya and in accordance with the values and principles of civil
service set out at Article 232(1) (i) of the Constitution of Kenya. , from
a pool of 982, 381 applications, to conduct the elections.
l. Successfully processed the nomination of 14,552 political party and independent candidates, the highest number of candidates to contest in
any election in Kenya. Jubilee presented the largest number of
candidates followed by ODM and Maendeleo Chap Chap which was
supporting Jubilees Presidential candidates. The number of candidates
presented by the 3 parties is as follows:
i. Jubilee - 1801 ii. ODM - 1289
iii. Chap Chap - 911
m. The introduction of the KIEMS system enhanced the integrity of the electoral process as the configuration of the KIEMS kit eliminated
opportunities for electoral fraud.
n. Held three separate sessions at Safari Park Hotel, Lillian Towers and at KICC for political parties, the media, election observers and the public
to demonstrate how the KIEMS kits were expected to work on Election
Day regarding voter identification and results transmission.
o. For example, the kits were configured to reject any recording of votes in excess of the number of registered voters, and ballot stuffing by
extension, in any polling station.
17
p. In addition, due to some of the amendments made to the electoral laws, the maximum number of voters per stream was standardized at 700
which led to a very significant improvement in the voting process, vote
counting and announcement of results.
q. Engaged in meetings and other initiatives with Kenyan security personnel to ensure there is adequate security during the entire electoral
process including the election date itself.
r. Convened a National Elections Conference for over 1000 stakeholders, including the Petitioners representatives, between 12th and 14th June
2017 at the Kenyatta International Conference Centre to discuss
preparations for the elections.
s. Conducted extensive voter education programmes through all forms of media including seminars, village meetings, posters, newspaper
advertisements, digital campaigns on Facebook, Twitter and the
Internet, television and radio advertisements, mobile phones and
through other fora. Some of the aforesaid material is still readily
available at the 1st Respondent’s website, www.iebc.or.ke , its
Facebook book page and its twitter handle.
t. Released an Elections Agent manual to assist political parties and independent agents to train their agents.
u. Prior to its disbandment by the High Court, convened the Elections Technology Advisory Committee whose role was to advise the 1st
Respondent on the adoption and implementation of election
technology.
v. Among the technological innovations introduced by the 1st Respondent pursuant to the provisions of Article 83(3) of the Constitution of Kenya
was a Short Message Service (SMS) application that allowed voters to
verify their registration status and particulars.
w. Published and supervised the execution of an electoral code of conduct as required by section 110 of the Elections Act. The said code has been
extremely helpful, at least until the election was held, in ensuring the
elections were held in a civil and pacific environment.
x. Held proceedings to enforce the electoral code of conduct. Several candidates were censured which helped keep the campaign period
generally peaceful in most areas.
y. The 1st Respondent provided adequate and well organized facilities at the County and, Constituency and National Tallying centres for
political party and independent candidates.
z. Kept the public and other stakeholders fully updated and informed regarding all aspects of preparation for the General Election. I now
produce a bundle of some of the many notices published by the 1st
http://www.iebc.ork.ke/
18
Respondent on its website and in the daily print media which is, marked
“WG3 “
aa. Indeed, the Petitioners concede that the 1st Respondent was very forthcoming with information, assurances and whatever clarification
their respective political parties sought over a wide range of issues that
covered practically every aspect of the elections.
bb. Some of the extensive correspondence exchanged between the 1st Respondent and NASA is produced at pages 1 to 87, inclusive, of the
bundle of documents bound together with the affidavit of Godfrey
Osotsi and again at pages 180 to 202 of the same bundle of documents.
cc. Accredited numerous local and international observers, agents and media representation as required by section 42 of the Elections Act.
dd. Published guidelines and a Code of Ethics for election observers.
ee. Convened a tribunal with guidelines for dispute resolution mechanisms to deal with settlement of disputes arising out of political party
nominations as required by Article 88(4) (e) of the Constitution,
Section 74 of the Elections Act.
ff. The said tribunal and the Political Parties Tribunal handled well over 370 cases within a span of one month and sat to hear disputes late into
the night and on weekends.
gg. Caused printing of ballot papers and procured election materials for over 40,883 polling stations despite the short period left to the 1st
Respondent following amendments to electoral laws early this year,
and numerous court cases which disrupted the electoral process
preparation calendar.
hh. For the first time in Kenya’s history, ballot papers for all six elections were printed with pictures of all candidates which enhanced the
exercise of voters rights under Articles 38, 81, 83 and 86 of the
Constitution of Kenya.
ii. Improved an extremely useful and resourceful website, Facebook page and twitter handle which contain all the information required to satisfy
the transparency requirements under Articles 10, 81 and 86 of the
Constitution.
jj. Facilitated the Political Parties Liaison Committee which was a forum established to give voice to political parties and their candidates, during
the electoral processes so as to minimise unnecessary
misunderstanding.
kk. As a tool of transparency and accountability, the 1st Respondent, put up a call centre facility to receive and respond to any concerns raised by
voters and other stakeholders. The call centre, at the National Elections
19
Center at Bomas of Kenya, had 70 attendants working in shifts round
the clock. Over 10,000 calls were received during before, during and
after the General Election. The following are some of the enquiries the
call centre dealt with:
Before Elections
Confirmation of registration status
Arrival of election materials
Questions about the voting process
Questions about required documents for identification
Incident reporting
During Elections
Reports of delays in opening of polling stations
Reports of KIEMS technology failures
Reports of slow queues and unruly conduct
After Elections
Questions about results on TV and via the public portal
Questions about the tallying process
Why presidential results are given preference over other
results
21. The 1st Respondent’s conduct of the election held on 8th August 2017 must also be assessed in the context of the following facts:
a. As with the 2013 elections, the fact that 6 elections were held on one day required double the material, including ballot boxes and ballot
papers, compared to the material required for previous elections.
b. For only the second time in Kenya’s history, portions of the electoral process were conducted through electronic means including voter
registration, which was carried out entirely by the Biometric Voter
Registration System (BVR).
c. This was the second election conducted under the Constitution of Kenya, 2010.
d. Significant delays in the enactment of electoral laws by parliament, which was compounded by several late stage amendments to such laws
with the attendant consequence that the 1st Respondents schedule of
executing the efficient conduct of the elections was disrupted.
22. I have always been and remain a firm and passionate believer in Kenyan institutions, some imperfections notwithstanding, and in the sovereign right of
the Kenyan people to reform and improve such institutions without disparaging
them in the manner the Petitioners perennially do.
23. The 1st Respondent has, in my view, acquitted itself very well under very difficult circumstances and is to be commended and not vilified.
20
Electronic Results Transmission System
24. The Petitioners and the various deponents of affidavits place great emphasis, albeit mistakenly, on the results that were being transmitted and being streamed
in at a public electronic display in Bomas of Kenya and on an online public
portal:
https://public.rts.iebc.or.ke/enr/index.html#/Kenya_Elections_Presidential/1.
25. It bears repeating that the Constitution of Kenya does not impose any duty on the 1st Respondent to exclusively use electronic systems to transmit results. The
requirement is for the 1st Respondent to ensure that at every election, whatever
method is used, the system is simple, accurate, verifiable, accountable and
transparent.
26. Further, Section 44A of the Elections Act grants the 1st Respondent a statutory discretion to the use of a complementary mechanism where technology either
fails entirely, fails to work properly or does not meet the aforesaid
Constitutional threshold of a system that is simple, accurate, verifiable,
accountable and transparent.
27. I now proceed to set out the manner in which the law contemplated the electoral process should be conducted and that the said statutory requirements were
indeed complied with.
28. Voting in Kenya is done by casting a paper ballot. All 15.3 million Kenyans who voted cast a paper ballot for each of the 6 elections held that day.
29. Upon conclusion of voting, the ballots were counted in the room where voting took place pursuant to the provisions of Regulation 76 of the Election (General)
Regulations.
30. The counting, which was undertaken manually, took place in the presence of all agents , observers, police officers and other people duly authorized pursuant to
the provisions of Regulation 74 of the Elections (General) Regulations and
because this happened quite early after close of the polls, in most cases all
agents were available.
31. The Petitioners had an added advantage as the NASA coalition comprises of 5 political parties who were competing among themselves and were entitled to
extra agents for the other elective positions.
32. Indeed, according to ELOG, an observer group which deployed one of the largest observer delegates during the recently concluded elections, the
Petitioners had very good representation of agents. A report prepared by the
aforesaid ELOG, a true copy of which is annexed hereto and marked “ WG 4”
states as follows at the relevant passage of the report:
https://public.rts.iebc.or.ke/enr/index.html#/Kenya_Elections_Presidential/1
21
“On the closing and counting process, our findings indicated as follows:
An ODM, WIPER, ANC or Ford Kenya party agent (representing the NASA coalition) were present in 84% of all the polling stations. In stations
where they were present, the NASA agent signed the declaration of results
for the presidential elections in 93.8% of these polling stations (as
compared to 94.9% in 2013).
For the closing and counting process, a Jubilee party agent was present in 92.3% of all the polling stations. In stations where they were present,
the Jubilee agent signed the declaration of results for the presidential
elections in 95.8% of these polling stations as compared to 95.6% in 2013).
Agents for independent candidates were present in 78.7% of all the polling stations. In stations where they were present, the agent signed the
declaration of results for the presidential elections in 88.7% of these
polling stations.
In 86.5% of the polling stations, a copy of the Presidential Results Form (From 34 A) was publicly affixed outside (as compared to 89% in 2013).”
33. Nevertheless, Regulations 62(3) and 79(6) of the Elections (General) Regulations make it clear that the non-attendance or refusal by an agent to sign
Form 34A does not in itself invalidate the results announced. The said
regulations state as follows:
“Regulation 62(3)
The absence of agents shall not invalidate the proceedings
at a polling station.
Regulation 79 (6)
The refusal or failure of a candidate or an agent to sign a
declaration form under sub-regulation (4) or to record the
reasons for their refusal to sign as required under this
regulation shall not by itself invalidate the results
announced under sub-regulation (2)(a).
Regulation 79(7)
The absence of a candidate or an agent at the signing of a
declaration form or the announcement of results under
sub-regulation (2) shall not by itself invalidate the results
announced.”
34. Once the counting was completed for each position, the presiding officer announced the result, and the agents present and the presiding officer signed the
statutory Form and gave a copy to all agents present. For the Presidential poll,
this was Form 34A.
35. As an added measure of transparency and by virtue of the provisions of Regulation 79(2A)(a) of the Elections( General ) Regulations , a copy of form
34 was affixed at the public entrance to the polling station or at any place that
22
was convenient and accessible to the public at the polling station. I note that Dr
Oduwo has not complained in any of his affidavits that this requirement was not
fulfilled nor have any of the observers or media houses.
Streamed results
36. By virtue of the provisions of Section 39(1C) of the Elections Act and Regulation 82 of the Elections (General) Regulations, once the process of
counting at the polling station was concluded, the results were simultaneously
sent electronically to the constituency tallying centre and to the national tallying
centre.
37. The aforesaid Regulation 82 states as follows:
“Provisional results to be transmitted electronically
(1) The presiding officer shall, before ferrying the
actual results of the election to the returning officer at the
tallying venue, submit to the returning officer the results
in electronic form, in such manner as the Commission may
direct.
(2) The results submitted under sub-regulation (1)
shall be provisional and subject to confirmation after the
procedure described in regulation 76.”
38. These were the results streaming into the public portal at the Bomas of Kenya and whose streaming the Petitioners attempted to stop on 9th and 10th August
2017 at various press conferences, meetings with the 1st Respondent and
through the correspondence attached at pages 172 to 184 of the bundle of
documents attached to the affidavit of Godfrey Osotsi.
39. As the 2nd Respondent kept emphasizing during the regular press updates he gave between 9th and 11th August 2017, the streamed results were not the ones
used to declare the winner of the election, which by virtue of the decision of the
court of appeal reported at Independent Electoral & Boundaries Commission
v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba
Institute & Coalition for Reforms & Democracy [2017] eKLR had been
conclusively tallied, collated and announced at all 290 constituencies.
40. There was therefore no legal requirement in the law obliging the 1st Respondent to avail Form 34A to any of the presidential candidates for verification which
was the basis of the streamed result to be on the electronic portal. The reasons
are fairly straight forward as follows:
a. The role of the 2nd Respondent at the National Tallying Centre was limited to collating the results recorded in the 290 Form 34B’s.
b. The role of the 2nd Respondent , according to the Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef
Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition
for Reforms & Democracy [2017] eKLR was proscribed in terms that ,
and I quote: “It cannot be denied that the Chairperson of the appellant has
23
a significant constitutional role under Sub-Article (10) of Article 138 as
the authority with the ultimate mandate of making the declaration that
brings to finality the presidential election process. Of course before he
makes that declaration his role is to accurately tally all the results exactly
as received from the 290 returning officers country-wide, without adding,
subtracting, multiplying or dividing any number contained in the two
forms from the constituency tallying center. If any verification or
confirmation is anticipated, it has to relate only to confirmation and
verification that the candidate to be declared elected president has met the
threshold set under Article 138(4), by receiving more than half of all the
votes cast in that election; and at least twenty- five per cent of the votes
cast in each of more than half of the counties.”
41. I have however noted that several of the 1st Petitioner’s supporting affidavits , in particular the 2nd Affidavit of Godfrey Osotsi, and the 1st Petitioner’s
supporting affidavit , at paragraph 13 , takes the position, erroneously as I will
demonstrate shortly, that :
a. The 1st Respondent was under a mandatory statutory duty to transmit results exclusively by electronic means.
b. By the time the results were declared, the 1st Respondent had only received 29, 000 form 34A’s electronically, leaving a balance of 11,883.
c. On account of (ii) above, the 2nd Respondent had no legal basis for declaring the results even if he received the remaining 11, 883 form
34A’s manually on account of the legal interpretation regarding
exclusive electronic transmission of results favored by the 1st Petitioner.
42. The 1st Petitioner’s insistence on this position is a deliberately deceitful. The facts are as follows.
43. The 1st Respondent does not have telecommunication network facilities of its own, as yet. The 1st Respondent must therefore rely on duly licensed
telecommunication service providers to provide the service.
44. By virtue of the provisions of Regulation 20 of the Elections (Technology) Regulations, 2017, telecommunication network service providers are under an
obligation to provide and deliver services as may be requested by the 1st
Respondent.
45. As technology is susceptible to failure, sabotage or human error , Regulation 24 of the Elections (Technology) Regulations, 2017 states as follows:
“Operations continuity plan and testing
(1) The Commission shall establish an operations continuity plan,
deleting both operational and technical processes, procedures and
tools.
(2) The operations continuity plan established under sub regulation (1)
shall provide mitigation and contingency measures, including
24
preparedness, prevention, response and recovery measures for
potential failures of technology.”
46. The term “potential failures in technology”, for purposes of the transmission of results, includes lack of or poor network coverage. In light of the key, albeit non
- exclusive, role technology was to play in the 2017 general elections, the 1st
Respondent , in consultation with telecommunication service providers, was
required by the provisions of Regulation 21 of the Election ( Technology)
Regulations , 2017 to identify and communicate, in a timely manner, to all
stakeholders the network service available at different polling stations and in
areas where there is no telecommunication network, inform the stakeholders
and publish this information.
47. As an added measure of necessary pre-caution, on 16th January 2017 parliament enacted Section 44A of the Elections Act through the Election Laws
(Amendment) Act, 2017. The said section states as follows:
“Notwithstanding the provisions of section 39 and section 44, the
Commission shall put in place a complementary mechanism for
identification of voters and transmission of election results that is
simple, accurate, verifiable, secure, accountable and transparent
to ensure that the Commission complies with the provisions of
Article 38 of the Constitution.”
48. Pursuant thereto, on 21st April 2017, the 1st Respondent issued The Elections (General) (Amendment) Regulations, 2017 by which it put in place the
complimentary system contemplated by Section 44A. The said regulations were
published vide Legal Notice Number 72 contained in a special issue of
Supplement Number 65 of the Kenya Gazette.
49. The Coalition for Reform and Democracy (CORD), the Coalition that nominated the Petitioners to contest the presidency in 2013 and which has now
morphed into NASA, strenuously objected to the said enactment and indeed
filed several suits including Judicial Review Miscellaneous Application no 657
of 2016 to stop parliament from debating the said enactment.
50. On 30th June 2017, NASA filed Constitutional Petition no. 328 of 2017 wherein it sought the following orders:
i) Firstly, for a declaration that the respondent should have developed the complementary mechanism within 60 days before
the 2017 general elections.
ii) Secondly, for a declaration that the respondent has failed to do so within the prescribed period as envisaged by section 44A of
the Act.
iii) Thirdly, the petitioner craves for a declaration that the identification of voters and transmission of results for the
election to be held on 8th August 2017 be exclusively electronic.
25
51. At the said hearing, Jubilee presented the court with compelling reports from all over world to demonstrate the absolute necessity for a paper backed electronic
system including the following:
i) A true copy of a report titled Case Study Report on Electronic Voting in the Netherlands by Ben Goldsmith and Holly Ruthrauff. The report is
marked ‘’ WG 5’’.
ii) A true copy of a report titled Federal Efforts to Improve Security and Reliability of Electronic Voting Systems Are Under Way, but Key
Activities need to be completed, published by United States Government
Accountability Office on September, 2005. The report is marked ‘’ WG 6’’.
iii) A true copy of a report entitled “Why machines are bad at counting votes” published on 30th April, 2009 by the Guardian Newspaper of the United
Kingdom. The report is marked ‘’ WG 7’’. In one particularly blunt passage
to be found at page 180 of the report, the author of the report states as
follows:
“It's commonly said that insanity is doing the same thing
over and over again while expecting different results. Yet this
is what we keep doing with electronic voting machines - find
flaws and try again. It should therefore have been no surprise
when, at the end of March, California's secretary of state's
office of voting system technology assessment decertified older
voting systems from Diebold's Premier Election Solutions
division. The reason: a security flaw that erased 197 votes in
the Humboldt county precinct in last November's presidential
election.”
iv) A true copy of a report entitled Hagai Bar-EL on Security, why secure e-voting is so hard to get, published on 22nd July, 2015 by Hagai Bar-EL
marked ‘’WG 8.’’. In the following passage at page 5 of the report, the
authors state that:
“The main concern with electronic voting as a concept is not
the security of the system, as it is the verifiability of the system.
The vote collection and counting process is so critical to
democracy that it cannot depend on the goodwill and skills of
the DRE voting machines vendor employees. If the public
cannot ascertain that the logic of vote collection and counting
indeed works as advertised, then there is absolutely no reason
for the public to agree to cast the fate of democracy on this
opaque device. The paper ballot system we use today is dumb
and simple, but this mechanical simplicity is what allows
visibility to anyone who cares to inspect the process.”
v) A true copy of a report entitled Ex-MI6 boss warns over electronic voting risk, published by the British Broadcasting Corporation (BBC) on 3rd
January, 2017. The report is marked “WG 9”. The former head of the
British Intelligence Agency, Sir John Sawyers, is reported to have stated as
26
follows: "Bizarrely the stubby pencil and piece of paper that you put your
cross on in the ballot box is actually much more secure than anything
which is electronic."
vi) A true copy of a report entitled “Voting, Vote Capture & Vote counting: Electronic Voting Best Practices” prepared following a Symposium
convened by the Kennedy School of Government at Harvard University
published in June 2004. The report is marked ‘’ WG 10’’. The report states
as follows:
“A Hybrid Of Paper And Electronic Systems Provides An
Effective Voting System.
No technology can solve every problem and mitigate every
risk. Neither electronic nor paper ballots are a panacea. A
hybrid of paper ballots and electronic systems can capture the
benefits of each while avoiding the pitfalls inherent in relying
on one or the other. The ideal system depends on the best
attributes of each, and uses modular construction that allows
for simple integration of the two parts. Of course, if badly
implemented the combination of electronic systems and paper
ballots can offer the problems of both, instead of benefits. An
example of a hybrid is the Massachusetts optical scan system,
which has paper ballots with electronic system to tabulate.
Another alternative is paper ballots with electronic marking
systems.”
52. In a judgment delivered on 21st July 2017 , a three judge bench of the High Court dismissed the said Petition and found, inter alia, that:
“54. It is clear from this judgment that when the electronic system
fails there should be a fallback system to avoid the entire election
falling into shambles. The complementary mechanism in Ghana
closely mirrors our Regulations 69 and 83. This Ghanaian
position is contained in the Manual on Election Adjudication in
Ghana 3rd Edition (DPI Print Ltd, Accra, 2016). Chapter 10(c)
and (d) of that manual deals with failure of the biometric system
in presidential and parliamentary elections.
55. The German Federal Constitutional Court
(Bundesverfassungsgericht) has had occasion to pronounce itself
on electronic voting. In Judgment of the Second Senate of 3rd
March 2009 [BVerfG] 2 BvC 3/07; 2 BvC 4/07, the Court found
that even where electronic voting systems are deployed, the citizen
should still be able to check and ascertain the results reliably
without expert knowledge; and, that it was not possible for a voter
to independently verify the integrity of the elections using the
electronic system
only…………………………………………………………………
……..
101. In view of the foregoing, we find that Regulations 69 and 83
of the Elections (General) Regulations 2012 have the full force of
27
law as they were approved by the Parliament which represents
Kenyans.
102. The petitioner contended that in the absence of a credible
complementary mechanism, the general elections should be
postponed as provided in section 55B of the Elections Act. We
disagree. We take judicial notice that Parliament has been
dissolved. Secondly section 55B applies where an election date has
been appointed but there is (a) likelihood of a serious breach of
peace; (b) a natural disaster; or, (c) occurrence of an electoral
malpractice of such nature and gravity as to make it impossible to
proceed with the election. Thirdly and most importantly, the date
for the general elections provided by Articles 101 and 136 of the
Constitution is cast in stone.
103. The petitioner had also prayed for a declaration that the
identification of voters and transmission of results for the election
to be held on 8th August 2017 be exclusively electronic. We wish
to emphasize again that every citizen has a right under articles
38(3), 81, 83(3) to be registered as a voter, to vote and to have every
vote counted. The electronic system failed during the 2013 general
election. We have already dealt with the question of reliability of
technology from other jurisdictions. Technology can be
susceptible to hackers, software bugs, badly trained frost workers
or power outages which could intentionally or accidentally erase
or alter voting data captured by the machines leading to failure.
104. Finally this Court has to consider the impact or consequences
if the exclusive electronic system fails. It would throw the entire
election into jeopardy and imperil our democracy. We therefore
find that it would not be feasible to declare that the elections to be
held on 8th August 2017 be exclusively electronic.
105. The upshot is that the entire petition is devoid of merit. It is
hereby dismissed with costs to the respondent and the interested
parties.”
I now produce a true copy of the said decision which is annexed hereto and
marked “WG 11”
53. NASA was aggrieved by the said decision and immediately filed Civil Appeal No 258 of 2017 which was heard on 3rd August 2017, barely 5 days before the
general election.
54. During the hearing of the said appeal, it emerged, from documents submitted by the 1st Respondent and admitted in evidence by consent of all parties, that
though NASA had claimed it was not aware of any complementary system put
in place by the 1st Respondent within the contemplation of Section 44A of the
Elections Act, NASA’s leaders, including the Petitioners , had in fact written
to the 1st Respondent in February 2017 enquiring what form the complementary
system envisaged by Section 44A of the Elections Act would take.
28
55. A copy of the said Memorandum is attached at pages 190 to 211 of the documents bound together with Godfrey Osotsi’s 2nd Affidavit. NASA’s
enquiry regarding the 1st Respondent’s interpretation of the words
“complementary system “is at page 196.
56. In a response dated 28th February 2017 addressed to NASA’s leaders, again including the Petitioners, the 2nd Respondent , who had just been appointed
through a rigorous bi-partisan process, informed NASA and its leaders that the
complementary system contemplated by Section 44A of the Elections Act
would be implemented through , inter alia, an amendment to Regulation 69 of
draft Elections ( General) Regulations that the 1st Respondent was developing
in consultation with stakeholders including NASA. A copy of the said letter is
attached at pages 26 to 38 of the documents bound together with Godfrey
Osotsi’s 2nd Affidavit.
57. On 4th August 2017, the Court of Appeal dismissed the said Appeal and reserved the delivery of reasons for its decision to 22nd September 2017. I now produce
a true copy of the said judgment which is marked” WG 12”
58. The effect of the said decisions by the High Court and the Court of Appeal was that when the general election was held on 8th August 2017, Regulation 83 of
the Elections (General) Regulations was the complementary system applicable
in respect of transmission of results in the event technology failed or
experienced difficulties that threatened to violate the provisions of chapter 7 of
the Constitution of Kenya.
59. In the aforesaid cases, NASA was represented by the same advocates who now represent the Petitioners and their knowledge of the decisions of the High Court
and the Court of Appeal must be imputed on the Petitioners. At any length, the
two decisions received considerable coverage in the print and electronic media.
The Petitioners cannot therefore feign ignorance of the fact, as they now purport
to do rather deceitfully, that transmission of results was to be effected
exclusively through electronic means.
60. This Petition is thus an abominable abuse of the process of this Honorable court, an attack and affront to the rule of law as contemplated by Article 10 of the
Constitution of Kenya to the extent that the Petitioners seek to present a feigned
issue for adjudication of this Honorable Court in a matter of such critical public
importance.
61. On 6th August 2017, pursuant to the provisions of Regulation 21 of the Elections (Technology) Regulations, the 1st Respondent posted a list of approximately
11,000 polling stations without 3G coverage. Electronic transmission of results
in this polling stations published in this list would be generally very poor and
difficult at best and impossible in most areas.
62. Consequently, the complementary mechanism set out in Regulation 83 of the Elections (General) Regulations as confirmed by the High Court and the Court
of Appeal. In essence, the said regulation provides a mechanism by which form
34A’s are physically delivered from polling stations to returning officers at
29
constituency level and by which constituency officers deliver form 34B’s to the
National Tallying Centre in Nairobi.
63. The self-evident wisdom of this course of action is itself the product of the decision of this Honorable court in the decision of this court in the case of
RAILA ODINGA & 5 OTHERS V INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION & 3 OTHERS [2013] eKLR, wherein the
Court at paragraph 233 of its judgment stated that –
“We take judicial notice that, as with technologies, so it is with electoral
technology: it is rarely perfect, and those employing it must remain open to
the coming of new and improved technologies. Analogy may be drawn with
the traditional refereeing methods in football which, as their defects became
apparent, were not altogether abandoned, but were complemented with
television-monitoring, which enabled watchers to detect errors in the pitch
which had occurred too fast for the referees and linesmen and linewomen to
notice….
“But as regards the integrity of the election itself, what lawful course could
IEBC have taken after the transmission technology failed" There was no
option, in our opinion, but to revert to the manual electoral system, as was
done…
“From case law, and from Kenyan’s electoral history, it is apparent that
electronic technology has not provided perfect solution. Such technology has
been inherently undependable, and its adoption and application has been only
incremental, over time. It is not surprising that the applicable law has
entrusted discretion to IEBC, on the application of such technology as may
be found appropriate. Since such technology has not yet achieved a level of
reliability, it cannot as yet be considered a permanent or irreversible
foundation for the conduct of the electoral process. This negates the
Petitioner’s contention that, in the instant case, injustice, or illegality in the
conduct of election would result, if IEBC did not consistently employ
electronic technology. It follows that the Petitioner’s case, insofar as it
attributes nullity to the Presidential election on grounds of failed technology
devices, is not sustainable…”
64. In light of the aforesaid compelling facts and decisions of our courts, I am mystified and baffled beyond comprehension why the Petitioners, who falsely
allege that the Respondents systems were hacked on 8th August 2017, still
doggedly persist in arguing that electronic transmission of results is the only
mode of transmitting results acceptable to them.
65. In essence, the orders now sought are an attempt by the Petitioners, post-facto, to procure through the back door what they Appellant failed to do in parliament,
in the High court and in the Court of Appeal.
66. The Petitioners are cynically trying to retrospectively legislate NASA’s electoral agenda through this Honourable court and retrospectively apply that
interpretation of the law to an election conducted under a very different
regulatory and legal regime. They should not be allowed to do so.
30
Recording, Tallying and Declaration of results
67. As far as I am aware the process of recording votes, tallying and declaration of results was conducted and done in full and/or substantial compliance with the
provisions of the Constitution and all electoral laws.
68. Further, to the best of my knowledge, based on reports by Jubilee party agents, observers and monitors and the 1st Respondent, the results announced on 11th
August 2017 were indeed accurate and verifiable in accordance with the
standards established by law and were announced in a transparent and lawful
manner as contemplated by Article 86 of the Constitution, the Elections Act and
the Elections (General) Regulations, 2012.
69. Nearly all local and international observers and monitors who were accredited by the 1st Respondent have issued preliminary reports stating that the election
was free, fair and credible notwithstanding the minor irregularities and other
logistical problems experienced during the election process.
70. The 1st Respondent has posted on its website and on a portal available to the public scanned copies of each and every Form 34A and B received at Bomas of
Kenya by the 2nd Respondent which upon collation, demonstrates that the
election results announced on 9th August 2017 were accurate, verifiable,
transparent and lawful.
71. I nevertheless wish to state as follows in light of the numerous false and baseless allegations set out in the Affidavits sworn by Dr Nyangasi Oduwo alleging that
Form 34a’s contain staggering and fatal irregularities. He has classified the
alleged irregularities as follows:
a. Form 34A’s that allegedly do not bear the 2nd Respondents official stamp;
b. Forms 34As that allegedly have not been signed by the Presiding Officer and Deputy Presiding Officers
c. Results which allegedly do not tally mathematically;
d. Forms 34As that allegedly do not have names or the signature of the party agents, and without reasons therefor from the Presiding Officers;
e. Forms where the Presiding Officer allegedly signed for more than one polling station;
f. Forms 34As that were allegedly signed by ungazetted Presiding Officers;
g. Forms 34As that allegedly emanate from ungazetted Polling Stations;
h. Forms downloaded from the 1st Respondent’s portal that are allegedly unclear or illegible ,
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72. My analysis, conducted with the help of a team of JP’s electoral tallying experts, has confirmed that in an overwhelming number of the cases cited by Dr Oduwo,
the forms do not manifest the alleged irregularities he cites.
73. Though I have caused detailed reports to be compiled in response to each and every allegation made in Dr Oduwo’s affidavit regarding the aforesaid issues,
I would nevertheless like to make the following observations:
a. Neither the Elections Act nor the Election (General) Regulations require that Form 34 A should bear the 1st Respondents stamp.
b. The failure of an agent to sign forms or attend his/her duties at the counting hall does not invalidate the results. Regulations 79(3), (4), (5)
and (7) state as follows:
“(3) Where any candidate or agent refuses or otherwise fails
to sign the declaration form, the candidate or agents
shall be required to record the reasons for the refusal
or failure to sign.
(4) Where a candidate or an agent refuses or fails to record
the reasons for refusal or failure to sign the declaration
form, the presiding officer shall record the fact of their
refusal or failure to sign the declaration form.
(5) Where any candidate or agent of a candidate is absent,
the presiding officer shall record the fact of their
absence.
(6) The refusal or failure of a candidate or an agent to sign
a declaration form under sub regulation (4) or to record
the reasons for their refusal to sign as required under
this regulation shall not by itself invalidate the results
announced under sub regulation (2)(a).
(7) The absence of a candidate or an agent at the signing
of a declaration form or the announcement of results
under sub regulation (2) shall not by itself invalidate
the results announced.”
c. Dr Oduwo purports to make expert opinions on handwriting though he is not a forensic document examiner and prefaces his assertions on
alleged similar handwriting with words phrases like “ the handwriting
seems” or “ the handwriting appears to be the same”.
d. I am informed by the 3rd Respondent’s advocate on record, and I believe such advice to be correct, that Section 50 of the Evidence Act states as
follows:
“Opinion as to handwriting
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(1) When the court has to form an opinion as to the person by
whom any document was written or signed, the opinion of any person
acquainted with the handwriting of the person by whom it is supposed
to be written or signed that it was or was not written or signed by that
person, is admissible.
(2) For the purposes of subsection (1) of this section, and without
prejudice to any other means of determining the question, a person is
said to be acquainted with the handwriting of another person when he
has seen that person write, or when he has received documents
purporting to be written by that person in answer to documents written
by himself or under his authority and addressed to that person, or
when in the ordinary course of business documents purporting to be
written by that person have been habitually submitted to him.”
e. Dr Oduwo’s bare statements are thus of absolutely no probative value and are informed by confirmation bias rather than reality.
f. I am also alive to the findings of this court in the case of RAILA ODINGA & 5 OTHERS V INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION & 3 OTHERS [2013] eKLR to the
effect that: “It is rightly argued by the Respondents, in our opinion,
that the Court must be alive to the fact that most polling stations are
in the rural areas, where the primary-school polling stations are
dilapidated, and the supply of electricity, to-date, is a distant dream.
Yet voters still go to such polling stations to exercise their right to vote,
and to discharge their civic duty. Of this fact, the Court will take
judicial notice, in deciding whether Presidential elections can be
invalidated due to non-compliance with regulations requiring
electronic transmission.”
g. There are no significant numerical discrepancies between Form 34A and Form 34B. I now produce a report that demonstrates that after
reconciling discrepancies in the forms attached to Dr Oduwo’s affidavit,
the net effect is that the Petitioners tally improves by 595 votes while
that of JP’s candidates decreases by 1199 votes. In the context of the
margin of votes cast for the 3rd Respondent and those cast for the I now
produce a true copy of detailed report, in both hard and soft copy, which
is marked “WG 13.”
h. An analysis of all 290 form 34B’s has revealed that, contrary to Dr Oduwo’s assertions in his affidavit, NASA agents signed the vast
majority of the said forms which they were supplied with at Bomas of
Kenya in my presence. I now produce a true copy of detailed report, in
both hard and soft copy, which is marked “WG14 ”
i. An overwhelming majority of the allegations set out at paragraphs 11 to 230 of Dr Oduwo’s are false and predicated on fictitious documents,
erroneous and extravagantly creative interpretation of regulations,
jaundiced opinions which Dr Oduwo is not competent to issue, outright
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lies and a fixation with the role of electronic transmission of forms. I
now produce a true copy of detailed report, in both hard and soft copy,
which is marked “WG 15”
Rejected Votes
74. The Elections ( General ) Regulations define the terms “spoilt votes” and “ rejected votes” as follows:
Spoilt ballot paper
A voter who has inadvertently dealt with his or her ballot paper in
such a manner that it cannot be conveniently used as a ballot
paper may, on delivering it to the presiding officer and providing
to the satisfaction of such officer the fact of the inadvertence,
obtain another ballot paper in the place of the ballot paper so
delivered and the spoilt ballot paper shall be immediately cancelled
and the counterfoil thereof marked accordingly.
Rejected ballot papers
(1) Every rejected ballot paper shall be marked with the word
“rejected” by the presiding officer, and, if an objection is made by
a candidate or an agent to the rejection, the presiding officer shall
add the words “rejection objected to” and shall be treated as
rejected for the purpose of the declaration of election results at the
polling station.
(2) The presiding officer shall mark every ballot paper counted
but whose validity has been disputed or questioned by a candidate
or an agent with the word “disputed” but such ballot paper shall
be treated as valid for the purpose of the declaration of election
results at the polling station.
(2A) The presiding officer shall make a decision on the validity of
the disputed ballot paper under sub regulation (2) and award it to
a candidate and such decision shall be final.
(3) After the counting of votes is concluded, the presiding
officer shall draw up a statement in Form 41 set out in the
Schedule showing the number of rejected ballot papers under such
of the following heads of rejection as may be applicable—
(a) want of security feature;
(b) voting for more than one candidate;
(c) writing or mark by which the voter might be identified; or
(d) unmarked or void for uncertainty,
and any candidate, counting agent or observer shall, if he or she
so desires, be allowed to copy that statement.
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75. 34C, which is the statutory basis upon which the Presidential results were announced indicates that there were 81,685 rejected votes. I now produce a true
copy of Form 34C obtained from the 1st Respondents website which is marked
“WG 16 ”
76. The public portal on which the electronic results were posted however indicates that there were 403,495 rejected votes.
77. In light of this self-evident discrepancy i have undertaken a thorough analysis which helped me and my party explain where the discrepancy arose from.
78. My analysis has revealed that in 688 polling stations, accounting for 229, 869 out of 294,271 registered voters in the affected stations, the number of reported
rejected votes is equal to the number of registered voters in those polling
stations. I now produce a listing of the said polling stations which is marked “
WG 17”
79. The said stations are spread out all over the country, and it is clear that electoral officers , in what are obviously honest and/or genuine instances of mis-posting,
inserted the registered number of voters in their respective polling stations in
the field reserved for rejected votes in the KIEMS results transmission kits since
the field or slot for registered voters was already pre-filled and incapable of
manipulation as one of the fraud / ballot stuffing prevention innovations
implemented in electoral planning this year.
80. The error was quite easy to make since the manual/paper form 34A has the number of registered voters in a polling station as the first slot an electoral
officer fills into form 34A. The aforesaid 688 electoral officers, under pressure
and some under less than ideal lighting conditions, clearly inserted the number
of registered votes set out in the manual form 34A into the KIEMS kit slot
reserved for rejected votes when transferring the results from the manual form
into electronic an electronic document.
81. The official results were nevertheless declared on the basis of results collated from 290 form 34B’s which were themselves compiled from manual form34A’s
which did not have this error having been transmitted as scanned copies of a
manual document or delivered to the returning Officer’s at Constituency level
physically. Thus, no prejudice was suffered by any candidate.
Nyando Constituency Results
82. Form 34C , which is the basis upon which the results were declared by the 2nd Respondent pursuant to the provisions of Regulation 87(3)(e) of Elections
(General ) Regulations , does not include the results for Nyando constituency
where the Petitioner had 60,715 votes against the 3rd Respondents 214 votes.
83. Dr Oduwo cites this as a fatal irregularity and an attempt to suppress the Petitioners final vote count. This is neither true nor founded in statute. Indeed,
the opposite is true.
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84. The proviso to Regulation 87 (3) states that: “Provided that the Chairperson of the Commission may declare a candidate elected as the President before all
the Constituencies have delivered their results if in the opinion of the
Commission the results that have not been received will not make a difference
with regards to the winner on the basis of Article 138(4) (a) (b) of the
Constitution.”
85. As stated above, there were 15 180 819 valid votes cast in the presidential election. 60,715 votes , which the Petitioners received from Nyando, work out
at 0.39% of the valid votes cast for the presidential election and would not have
made a material difference within the contemplation of the proviso to
Regulation 87(3) reproduced above in full. The 2nd Respondent was therefore
within the four corners of the law when he declared the final result on 11th
August 2017.
Alleged disparity between presidential votes and the other 5 elections
86. Dr Oduwo alleges, in his affidavit, that there is a large and suspicious disparity between the votes recorded for the presidential election and those of other
elections and the gubernatorial election in particular.
87. Again, Dr Oduwo deliberately embellishes the facts in an attempt to secure an unjustified advantage for the 1st Petitioner. I now produce a report indicating
areas where votes cast for the presidential election were less than other
elections. The report is marked “WG 18”
88. A basic analysis of the results indicates that in 94 constituencies, scattered all over the country, voters cast more votes in one or more of the other 5 elections
held on 8th August 2017 than in the presidential election. Details of the said
constituencies and the election in which the presidential vote was not the highest
are as follows:
Constituency Name
Position
1 NYALI Governor
2 LIKONI Senator
3 MVITA Senator
4 MSAMBWENI Parliament
5 LUNGALUNGA Parliament
6 KINANGO Parliament
7 GANZE Parliament
8 BURA Parli