EXECUTIVE SUMMARY OF RESPONSE TO PETITION
1. The contents of paragraph 2.3 of the Petition are incorrect to the extent that the
Petitioner attributes the enactment of the Constitution to the Government of the
Republic of Kenya, civil society and the private sector whereas the Constitution is in
truth adopted and enacted by the people of Kenya.
2. The 3rd Respondent having perused the Petition has noted that no Accusation is made
against him.
3. The Petition is replete with falsehood and is a robust effort to exaggerate facts and
circumstances which are intended to secure for the Petitioner an unjust advantage. The
Petition in essence seeks to substitute the will of Kenya people who elected the 3rd
Respondent in elections that were free, fair and credible by the standards established by
law.
4. The 1st Respondent’s conduct of the election must also be assessed against the following
novel circumstances;
(i) For the first time in Kenya’s history, 6 elections were held simultaneously on the
same day.
(ii) For the first time in Kenya’s history, portions of the electoral process were
conducted through electronic means including voter registration.
(iii) The general election was the first one under the new Constitution.
(iv) The record registration of over 14 million voters.
(v) Creation of 80 new constituencies and delimitation of new electoral units
undertaken in 2011 pursuant to the provisions of Article 89 of the Constitution of
Kenya.
(vi) The conduct of elections under a statutory framework for the creation of
coalitions and a new Political Parties Act.
(vii) The conduct of elections that will lead to the first devolved system of
Government in Kenya.
(viii) 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 Respondent’s schedule of executing the efficient conduct
of the elections was disrupted.
(ix) A legal challenge and political opposition to the procurement process
commenced by the 1st Respondent for BVI, BVR and electronic results
transmission system.
5. The Constitution does not impose any duty on the 1st Respondent to use BVI, BVR
and/or a system of transmitting election results electronically hence it is a fundamental
misconception of the law for the Petitioner to contend that either registration of voters,
identification of voters or transmission of the votes cast was required by law to be done
via an electronic system.
6. At a press conference convened on 31st July, 2012,the Petitioner and several senior
members of ODM called for a return to the manual system and declared that Kenyans
did not want the BVR system. It is therefore the height of hypocrisy for the Petitioner to
now claim that the only credible process of conducting elections must be founded on an
electronic system.
7. Following consultations between the President, the Petitioner and the 1st Respondent, a
decision was made to procure the BVR Kits from the Government of Canada in a
Government – Government deal. The Cabinet meeting at which the decision was made
was chaired by the President and the Petitioner.
8. It therefore follows that the Petitioner had a critical role in the identification and
eventual purchase of the BVR Kits. The Petitioner cannot therefore either found a cause
of action arising from his participation in the purchase of the BVR kits and/or benefit
from the ultimate partial failure of the electronic systems.
9. The notion that electronic voting systems are the only accurate, accountable, verifiable,
transparent and efficient method of voter registration, voting and results transmission
is not only fundamentally unsound in law but also factually incorrect. Such systems
have failed all over the world in the past in the following instances:
(i) The BVR system crashed and/or failed in 2012 in the Ghana Presidential
election.
(ii) Electronic voting systems failed during the 2000 Presidential election in the United States of America.
(iii) Electronic voting systems have failed, crashed and or mulfunctioned in
numerous elections in Europe and in Municipal elections in the United
States of America to the extent that legislation has been introduced in
some jurisdictions requirement for a manual back up system in every
election.
10. In excess of 800,000 people expressed their preference for the 3rd Respondent who are
more than the total number of voters in 3 densely populated counties namely Tharaka
Nithi, Kakamega and Bomet.
11. Every effort humanly possible was made to ensure that the voting method adopted by the 1st Respondent was simple, accurate, verifiable, secure, accountable and transparent.
12. The results announced were indeed accurate and verifiable in accordance with the
standard established by law and were announced in a transparent and lawful manner as
contemplated by Article 86 of the Constitution and the Election (General) Regulations,
2012.
13. The allegations at page 14 paragraph 5.2 of the Petition are false. In particular the 3rd
Respondent states that the will of the people of Kenya expressed in a free fair and
credible electoral process can not in law be overturned or subverted on the basis of a
hypothesis. The petition correctly understood, is founded on a hypothesis incapable of
proof; it is an expression of bitterness arising from the Petitioner’s loss of the poll and
raises no legal issues capable of a judicial inquiry.
14. The allegations at page 16 paragraph 5.5 are false. The agents for all political parties
present at the national tallying centre were not ejected from the tallying centre but rather
provided with suitable alternative facilities within the tallying centre after the
Petitioner’s supporters started shouting and mis-conducting themselves in a room
which they and other agents had been allocated for verification of results.
15. It is thus manifestly clear that the Petitioner’s attempt to impeach the entire electoral process and invalidate the results is an afterthought informed by the shock of losing the election rather than on any impropriety or irregularities by the 1st and 2nd Respondents.
16. The 3rd Respondent states that the burden of the Petitioner’s case is that the entire
electoral process commencing with voter registration, voting and tallying of results and
the declaration of results was invalid, null and void. The 3rd Respondent contends that
the court is being invited to stage a coup against the constitutional governance of Kenya
in that not only the Presidential election would be impugned but the Parliamentary,
Gubernatorial, Senatorial and County Assembly elections would also be vitiated.
17. The Orders sought by the Petitioner are also mischievous and designed to cause
disproportionate harm to constitutional governance in that they call for impeachment
without legal basis of the only body established in law to conduct elections so as to
trigger a crisis in the Executive and Legislative arms of Government that would enable
the Petitioner to negotiate and/or bully his way to power in contravention of the
Constitution.