Court rejects Raila’s plea for audit of poll team’s IT system

By PAUL OGEMBA pogemba@ke.nationmedia.com AND JOHN NGIRACHU jngirachu@ke.nationmedia.com
Posted  Wednesday, March 27   2013 at  00:30

IN SUMMARY

• Court also rejects PM bid to introduce 839-page document, saying it raises new matters in poll case

Prime Minister Raila Odinga on Tuesday lost two applications in his challenge of the presidential election result as the Supreme Court concluded its pre-trial conference and set the ground rules for the main hearings.

The six judges rejected an attempt by Mr Odinga to introduce an 839-page affidavit, including evidence from 122 constituencies, said to show a discrepancy of 11,000 votes, and dismissed his request. They also rejected his request for a forensic audit of the electoral commission’s electronic tallying system.

In addition, they expunged from the list of Mr Odinga’s petition six affidavits and annexures which they said were filed without the permission of the court.

“We find the bundle so detailed that the remaining time is not adequate for the respondents to file any reasonable answer,” said Mr Justice Philip Tunoi on behalf of the six-member bench.

“The affidavits introduce new matter which may lead to amendments leading to serious departure from the original issues.”

The affidavits were sworn on March 22 and filed the following day. The bundle was about two inches thick with an orange cover and a black spine. Justice Tunoi said they found an additional six affidavits that had been marked as exhibits and not formally filed as affidavits. These were sworn by Mr Odinga, Ms Janet Ongera, Mr Oduor Ong’wen, Prof Lawrence Gumbe, Mr Andrew Mwaruwa, Mr John Walubengo and Mr Raj Pal Sena.

It was a race against time as the six judges delivered three rulings on preliminary applications and scheduled one for this morning before embarking on a two-day hearing on issues which can either revoke the election of President-elect Uhuru Kenyatta or clear the way for his swearing-in as the fourth president of Kenya.

While dismissing Mr Odinga’s application for a forensic audit of the IEBC electronic system, the judges ruled that it was impractical to attempt the audit given the strict timelines. “We cannot grant the orders sought without jeopardising the other parties since they will require additional days to respond which will then go beyond the 14 days given by law to determine the validity of the presidential election,” ruled the judges.

Mr Odinga, through lawyer Ochieng Oduol, had sought a forensic audit of the IEBC computer system and said they had lined up ICT experts to explain what might have caused the system failures during vote tallying. The judges ruled that the application was filed outside the seven days allowed.

Also on the losing end were Prof Yash Pal Ghai and Katiba Institute. They sought to be enjoined as amicus curiae (friend of the court).

The judges said it was evident other parties felt that Katiba Institute was not neutral.

IEBC, Mr Kenyatta and Mr William Ruto opposed the institute joining the case, arguing that the institute would be partisan given Prof Ghai’s “openly biased opinion” over the candidature of Mr Kenyatta and Mr Ruto.

“Katiba Institute has a very deep resentment towards Mr Kenyatta and Mr Ruto. One cannot be a friend of the court when he is an opponent supporting the other side. We are very uncomfortable with them due to their association with other civil groups who are petitioners herein,” said Mr Fred Ngatia.

The judges reserved a ruling on another application by civil society groups to compel IEBC to produce the manually marked register used during the voting to Wednesday.

Ms Kethi Kilonzo, for the civil groups under the umbrella of Africa Centre for Governance (AfriCog), submitted that the Supreme Court had the jurisdiction to order IEBC to produce all documents relevant to the presidential election petitions
.