Saturday, May 18th 2013
By Paul Wafula
NAIROBI, KENYA: Details of the 800-page document containing former Prime Minister Raila Odinga’s
evidence on his presidential election petition that he never got a
chance to present to the Supreme Court can now be revealed.
It is
now emerging Raila had sourced a management consultant from a firm based
in Barcelona, Spain, to support his local team of professionals, among
them lawyers, engineers, financial analysts and technology experts to
argue his election case.
The former PM had compiled a case largely
grounded on the failure of technology, variation in number of votes as
declared at the constituency and national tallying centre.
Recently
Mr Odinga accused Dr Willy Mutunga of presiding over an “injustice”
after the Chief Justice complained about bribery allegations levelled
against him on grounds that the Supreme Court had struck out the 800
pages of evidence with a stroke of the pen.
In the ruling
rejecting the evidence read by Justice Philip Tunoi, the court stated
that accepting the affidavits and by extension the new evidence would
prejudice the respondents, Isaack Hassan, the IEBC, Uhuru Kenyatta and William Ruto.
The
court further stated that the applications should have been made prior
to the status conference hearing in order to be give due consideration.
In
the rejected evidence, the team of experts had planned to argue that
about 267,798 more votes were cast for the presidential election than
for the gubernatorial election.
The co-hosting of the IEBC server and the TNA server also formed one of its greatest arguments in the piece of evidence.
According to the rejected submission, IEBC
allowed Kencall EPZ to co-host both its database and that of the TNA on
the same server with an IP address 196.1.26.40, which Odinga through
his lawyers argued compromised the integrity of the electoral process.
“It
is now an admitted fact from replying affidavits under reply that the
first respondent’s database titled African Focus and accessed through
the web address or URL https://www.intranet.kencall/apps/iebc
and The National Alliance (TNA) database known as Market Race CRM and
accessed through the web address or URL
https://www.intranet.kencall/apps/tna on the same server with the same
IP address 196.1.26.40 and which raises issues of lack of independence
and transparency,” the document alleges.
Firm defended
Kencall’s boss Nicholas Alexander Nesbit had in his affidavit sworn
on March 19 defended his firm saying his firm had set up two independent
servers to host the IEBC and TNA’s databases.
Mr John Walubengo, a certified Information Systems Auditor (CISA) was one of the main IT experts that the Raila Odinga legal team had lined up to testify. His evidence was marked RO 5.
Mr Walubengo’s brief was to advise on what the petitioner termed as ‘conflicting and confusing reasons given by the IEBC
in respect of the Electronic Voter Identification (EVID), Biometric
Voter Registration (BVR), Results Transmission System (RTS) and the
Results Presentation System (RPS).’
“I have been requested to
advise on the propriety of the hosting arrangements of the First
Respondent’s database(s) and The National Alliance (TNA) database by the
first respondent’s service provider Kencall EPZ Limited,” Mr Walubengo
said in his sworn affidavit, on page 811 of the rejected evidence
package.
Forensic system
Mr Walubengo had
pushed for a forensic system audit arguing that the said challenges in
the technology can only be ascertained through an audit.
“The
reasons advanced on the propriety and mechanisms of the co-hosting
arrangements…are equally not empirical,” Mr Walubengo notes.
He
argues that the scenario presented a real possibility of the system and
database admin (DBA) at Kencall EPZ Limited having unhindered (ROOT)
access to both the IEBC and TNA databases.
Barcelona
based management consultant Raj Pal Senna, whose evidence is marked RO
6, is the second IT expert whose submissions never saw the light of day
after they were rejected.
His brief was almost similar to what Mr
Walubengo did. Just like his colleague, Mr Senna concluded that to be
able to know what exactly broke down the system and make an informed
view, it was important that a forensic analysis of the hardware and the
software is carried out.
“It is an industry standard practice to
provide the most basic information about a server which is the server IP
address, which is a unique identification number, which is a digital
name of sorts. No two servers can have the same IP address,” Mr Senna
says in a sworn affidavit dated March 22.
But the plea to have a
forensic audit was rejected on grounds that it was not practical,
handing Mr Odinga’s legal team a major blow.
Affidavit expunged
The six judges also
expunged Raila’s 839-page replying affidavit, the second piece of
evidence, on grounds it was filed too late to allow the respondents to
go through it and file replies.
“If we allow the affidavit, it
will be prejudicial to the respondents and can lead to miscarriage of
justice... we hereby expunge from the affidavit sworn on March 22,
together with six other annexed affidavits,” said the judges in a ruling
read by Justice Philip Tunoi.
In the case Raila had argued that the votes garnered by Uhuru Kenyatta were less than 50 per cent of the votes cast as required by law.
Apart
from the individual discrepancies at different polling stations, the
85,000 extra voters in the final tally, Odinga’s petition is heavy on
technological failure — procurement, installation and deployment — a
pointer that the bulk of its case was based on technology.
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