The Supreme Court in session on March 25, 2013. Photo/BILLY MUTAI NATION MEDIA GROUP
By EMMANURL TOILI etoili@ke.nationmedia.com
Posted Monday, March 25 2013 at 19:00
Posted Monday, March 25 2013 at 19:00
IN SUMMARY
- The court ruled that all Forms 34 used by the IEBC will be thoroughly scrutinised
The Supreme Court on Monday ordered the scrutiny of Forms 34 from all the 33,400 polling stations and all the Forms 36 used in the tallying of the presidential votes.
The court also ordered re-tallying of the presidential results in 22 polling stations using Forms 34 and 36 so as to determine the numbers of votes cast over number of registered voters.
The exercise will commence on Tuesday from 8am.
In the ruling, Justice Smokin Wanjala said the re-tallying would aim to show if the number over votes cast exceeds the number of registered voters.
Justice Wanjala also ordered that the results from the 22 polling stations be filed at the Supreme Court registry by Wednesday 4pm after re-tallying.
The court also ordered that all the representatives and agents from the petitioners and respondents in the recount process to take an oath.
The judges also approved the application by the Attorney General to act as 'a friend of the court' in presidential petitions but dropped the Law Society of Kenya (LSK) application.
Cord's lawyer George Oraro said he accepted the admission of the AG to the petition as a friend of the court despite opposing it earlier.
The judges also consolidated three petitions and allowed the Cord petition to take lead.
Electronic submission of results
Africog Counsel Keth Kilonzo argued that it is mandatory for the IEBC to transmit the results electronically and a forensic audit was important.
"IEBC's reasons for the failure of the electronic results transmission are not enough," she said.
Ms Kilonzo argued that all parties should be allowed to scrutinise the IEBC system.
However, IEBC says production of logs used in the electioneering process is tiresome and cumbersome.
IEBC also argued that there was no new petition that was totally different from the petition already in the court.
IEBC also told the court that there was no statutory requirement to conduct an electronic election.
The commission argued that technology was an additional safeguard as opposed to a requirement.
IEBC also said that KenCall, which is a service provider could not co-host the commission's servers with TNA as alleged by the Cord Coalition.
IEBC boss Issack Hassan's lawyer Ahmednassir Abdullahi argued that that applications to access information are not founded in the Constitution.
"No article provides for the supply of the requests of the petitioners on the IEBC logs," he said.
"No law that allows the Supreme Court to compel the IEBC to supply the electronic logs required," he added.
He argued that the court had no luxury of time to allow for forensic audit of the IEBC IT system.
Jubilee's lawyer Fred Ngatia also argued that an audit on IEBC systems will lead to breach of confidentiality as it holds very crucial and sensitive information.
He argued that the forensic audit was out of order since the contractors had not been served or party to the petition.
However, lawyer Oduol Ochieng noted that the IEBC had a central server and should therefore be compelled to produce the logs.
"The electronic logs are not a burden by the IEBC to provide," he said.
Mr Ochieng said that the logs will prove why the electronic votes transmission failed and the type of errors encountered.
He also said that the third parties lacked independent data because their roles were to provide services to the IEBC.
Controversial constituencies
Mr Ngatia noted that 57 constituencies were set as areas of controversy by the petitioners.
He argued that the complaint had been that the votes cast exceeded the number of voters registered.
He also said that complaints with direct connections to the electoral process should be dealt with but not those outside it.
Mr Ngatia said that the President-elect team had responded to all allegations raised by any of the petitioners who served them.
He said that the affidavit filed on Monday contained 122 electoral areas with specific new complaints.
He also challenged the court to deny the petitioner time to table new facts tending to amend or add value to the petition.
He said that new or extraneous evidence or raising new grounds cannot be allowed at this stage as they will delay the course of justice.
"A decision to allow submission of new evidence will only serve to deny the defence the right to fair trial," he said.
In a rejoinder, lawyer Ahmednasir argued that there was no legal provision for the petitioner to file new evidence at free will.
He argued that there was flooding of evidence without the interpretation of the court.
"The new affidavit has led to the case changing completely as the petition has been amended through the affidavit," he said.
" I think what respondents are complaining is the flood of new evidence the petitioner is presenting," he added.
He also argued that the petition should stop mutating and be confined on areas that can be responded to by all the involved parties.
Lawyer Mohamed Nyaoga also argued that the petitioner lacked the material evidence to back its petition.
He said that the petitioner was supplied with all the necessary materials by IEBC as requested.
Jubilee's lawyer Katwa Kigen says that the move by the petitioner to expand the scope of the petition was outside any legal provisions.
"The law doesn't allow to file affidavit without the leave of the court. The affidavit should be struck out," he said.
He also noted that the manner in which the petitioner filed the new affidavit involving over 900 pages was arrogant.
"Allowing the new affidavit is allowing the case to fall out of time," he said.
"The new evidence distorts the original petition and amends it to create a new 'animal'," he added.
Also, lawyer Njoroge Regeru argued that the new affidavit required a ruling to save on important timelines.
"The law bars the petitioner from filing new affidavits outside the allowed timelines," he said.
Mr Regeru argued that the petitioner was not steadfast in observing the rule of law and should not be allowed to handle the issue casually.
However, Africog's lawyer Donald Deya argued that they were not served with the new affidavit and they would only make general remarks in the matter.
Mr Deya said that all Forms 34 and 36 should be scrutinised and compared with the numbers in the principal register.
He challenged the court to distinguish between issues raised and the facts before it.
In his response, Mr Oraro reminded the court that the IEBC only served the petitioner after being compelled by the High Court.
Mr Oraro argued that that the petitioner chose to bring the affidavit in the interest of the court and the petition.
"There is a need for the respondents to bring all the required material in order to be at par with the petition," he said.
Mr Oraro said the petition is challenging the manual tallying system adapted by the IEBC since it was abused in the 2007 General Election.
He said that a number of Form 36 were not signed and others had different data from what was finally made public.
He argued that that the difference in the tallying as filed by the IEBC can only be verified by scrutinising the Forms 36.
Mr Oraro argued that the discrepancies in the numbers in Forms 34 and 36 are part of the malpractices that led to the petition.
He also said that no new evidence had been introduced but only exhibits are contained in the affidavit.
Accept court's verdict
Early in the day in his opening remarks, Chief Justice Willy Mutunga said the judges will be objective in its ruling on the petition.
"We as judges are servants of the law. We shall be objective," he said.
"Supreme court to remain objective. Public should trust us to do our job. Justice should manifest to be done," he added.
Dr Mutunga also urged Kenyans to accept the final decision that will be arrived at by the Supreme Court and move on.
"Whatever decision emerges from this petition, we must march forward," he said.
In an earlier session on Monday, the Attorney General Githu Muigai had sought to be enjoined in the petition as amicus curiae or a friend of the court.
"We can only be enjoined in the case on the discretion of the Court," said AG Muigai.
However, Mr Odinga had filed an objection to the Attorney General joining the presidential petition.
AG Muigai also argued that his appearance in petition was not to support any party but to lay down law as it is with authorities from across the globe.
"The AG's role is to elucidate on legal issues, not to support any side," he said.
However, Mr Abdullahi said his client had no objection with the appearance of AG in the petition.
Lawyers Katwa Kigen and Fred Ngatia also had no objection to AG being enjoined in the petition.
Notably, lawyer Kethi Kilonzo for Africog argued that issues before court did not require an interpretation of the law to warrant inclusion of the AG.
However, Cord's lawyer George Oraro argued that the AG had applied to be enjoined without request from the court or any party.
"The AG has misinterpreted circumstances under which he can apply to be enjoined in cases before court," he said.
"An election petition is not a civil proceeding. The government is not defined in the Constitution but state is defined," he added.
Mr Oraro argued that in relation to this petition the AG can be enjoined by the Constitution to assist the IEBC.
However, AG Muigai disagreed with Mr Oraro and argued that the petition was a civil matter.
AG Muigai argued that as amicus curiae, his office will not impose views on the court hearing Cord's petition against President-elect Uhuru Kenyatta.
"I have not advised the president-elect, contrary to claims by lawyer George Oraro," he said.
Lawyer A.B Shah also lodged an application for the Law Society of Kenya (LSK) to be enjoined in the petitions before the Supreme Court as amicus curiae.
However, LSK faced opposition on its application to be enjoined as amicus curiae in presidential petitions by parties before Supreme Court.
Mr Oraro opposed the inclusion of the LSK in petition arguing that the society is partisan.
Lawyer Fred Ngatia representing Jubilee Coalition also opposed inclusion of LSK as amicus curiae the society was an observer in the General Election.
Mr Ngatia also argued that LSK is on record 'supporting a petitioner.'
During the submission, political activist Nazlin Umar disrupted court proceedings for several minutes at the Supreme Court as she attempted to address judges over an application she had filed.
Ms Umar said as the "Wanjiku's" lawyer, she was disappointed that her application has been ignored.
However, Dr Mutunga said that the Supreme Court will not hear or deal with any petitions, requests or submissions that were done past the allowed time.
Petition consolidation
During the submissions, Jubilee's lawyer Mr Ngatia argued that a couple of preliminary issues had to be addressed before the hearing of the petition.
Also, AG Muigai advised the court to give the parties involved time to come up with a conclusive mechanism of what may be required for progress.
Mr Ngatia argued that the petition by Cord only raised one issue.
"The court should consolidate all the petitions and marry all the related issues raised by petitioners and respondents," he said.
Lawyer Njoroge Regeru argued that the petitions consolidation were sensible and will lead to arguable case and speedy resolution.
Africog's Counsel Keth Kilonzo also argued that matters of fact and matters of law should be consolidated to allow a reasonable suit.
However, Mr Oraro said the consolidation of the cases including respondent number three may not hold.
Mr Ngatia noted that petitions 4 and 5 had similar issues, contest and engagement and thus could be consolidated.
Lawyer Ahmednassir Abdullahi also argued that petition number 5 bore more weight than 3 and 4 and should be given preference.
Petition mutations
Mr Ahmednasir also asked the court to give directions on the type of petitions to be followed.
Mr Ahmednasir argued that his client, Mr Issack Hassan was concerned with continued mutation of the presidential petitions, hence, affecting its expediency.
Mr Ngatia also requested the court to give guidance on the petitions to avoid the mutations.
"There's new evidence being introduced and this means the defence teams must be given time to respondents to all affidavits," he said.
"There are 122 new electoral areas that are being introduced by the petitioner which bears grave consequences on time," he added.
However, Mr Oraro argued that it is within the provisions of law to file new evidence as the hearing continues.
On his side, lawyer Harun Ndubi argued that the introduction of affidavits is important at any point.
The judges, led by Dr Mutunga, could either dismiss the petition, order a re-count of the presidential votes, settle on a re-run, or rule that the whole process begins afresh with the registration of voters.
The actual hearings of the petition are expected to start on Thursday and could continue un-interrupted until concluded.
Apart from the petition filed by Cord's presidential candidate Mr Raila Odinga challenging the declaration of Jubilee's candidate Mr Uhuru Kenyatta as winner of the presidential election, there is another filed by a civil society group, the African Centre for Open Governance (Africog).
Also before the court is a petition filed by some members of Mr Kenyatta’s campaign team, social media activists Dennis Itumbi and Moses Kuria and a third person, challenging the inclusion of spoilt ballots in the calculation of votes attained by each candidate.
The objections raised by Mr Kenyatta and Deputy President-elect Mr William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan, will also be narrowed down to what will be argued verbally in court
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