Poll was a fraud on voters, argues lawyer

"They (IEBC) conducted the elections in total contravention of the constitution and their own regulations” Kethi Kilonzo, AfriCog lawyer. Photo/BILLY MUTAI  NATION MEDIA GROUP

By PAUL OGEMBA pogemba@ke.nationmedia.com AND JOHN NGIRACHU jngirachu@ke.nationmedia.com
Posted  Wednesday, March 27  2013 at  22:30

Videos were among the evidence presented at the Supreme Court on Wednesday in a petition challenging the election of Mr Uhuru Kenyatta as Kenya’s fourth President.

Two petitioners, Prime Minister Raila Odinga and the African Centre for Open Governance (Africog) laid out what they said was evidence that Mr Kenyatta was not validly elected as the hearing of the petition proper began.

Africog was the first to present its case. It alleged massive irregularities, contravention of the Constitution and violation of electoral laws by the Independent Electoral and Boundaries Commission (IEBC).

Through its lawyer, Ms Kethi Kilonzo, the civil society group showed videos of results announcement at Nyeri and Bomet counties tallying centres which Ms Kilonzo claimed were different from the final results announced by the IEBC and captured in Form 36.

“What the Independent Electoral and Boundaries Commission announced as the final presidential tally was a complete fraud since the effects of the irregularities were that what candidates got was not what they ought to have got,” she said.

For Nyeri, the organisation played a video in court in which the county tallying officer read the final results showing Mr Uhuru Kenyatta having 317,881 votes with his closest challenger, Mr Raila Odinga, getting 6,075 votes.

According to Ms Kilonzo, the final tally by IEBC showed Mr Kenyatta’s votes as 318,880 while Mr Odinga’s votes were given as 5,638. The rejected votes went down from 3,030 to 2,465.

“Form 36 presented by IEBC is filled by fraud against every individual who queued for hours to vote for their preferred candidate and the only logical solution would be to invalidate the results of the entire county,” Ms Kethi said.

“Every man or woman is entitled to one vote but the end of the IEBC conduct did not justify the means. They conducted the elections in total contravention of the Constitution and their own regulations which cannot lead to a legitimate government,” she said.

Ms Kethi gave another example of Machakos Town constituency where she alleged that the IEBC register had only 125 voters registered without biometric information but the final results showed a total of 3,182.

The court was also shown another video from Bomet County, which Ms Kilonzo claimed, showed the final presidential votes tally pinned on the wall at a tallying centre differing from the one announced by IEBC and indicated on Form 36.

Said Ms Kilonzo of another centre, Charity Primary School in Kieni constituency: “The principle register... had only one registered voter, but the result shows Mr Kenyatta got 310 votes. Even the returning officer did not indicate how many registered to vote or the results of other candidates”.

She added that the IEBC cannot say it did not break the law since it went against its own promise to deliver results within 48 hours, adding that the electronic transmission failure was IEBC’s own making to enable stealing of votes.

“We cannot understand the mischief behind the system failure since it was not for the benefit of the commission but for the people of Kenya to ensure a free, fair and transparent election,” Ms Kilonzo said.

Should the Supreme Court find the election was bungled, Ms Kilonzo argued that the judges should order the Director of Public Prosecution to investigate and prosecute those involved in committing electoral offences.

The formal hearings begun with the judges announcing that they had distilled all the issues presented by the lawyers, who couldn’t agree on what the judges should decide, and condensed them into four.

The first Issue is whether Mr Kenyatta and William Ruto were validly elected in the presidential election.

Second is whether the presidential election was free, fair and transparent and in compliance with the law.

Third is whether the rejected votes ought to have been considered in calculating the final percentages.

The final one is what orders the court should make after determining the three issues.