Raila, Karua want Supreme Court to disband IEBC, order new elections kits

Azimio la Umoja One Kenya presidential candidate Raila Odinga and his running mate Martha Karua want the Supreme Court to disband the electoral commission and order the procurement of new technological equipment for purposes of a repeat election, if it doesn't issue an alternative order to recount the tallied votes. 

Additionally, they want a declaration that the chairman of the Independent Electoral and Boundaries Commission (IEBC) Wafula Chebukati is unfit to conduct a fresh election.

The prayers are contained in fresh written submissions filed Friday morning by the duo to support their election petition at the Supreme Court. Mr Odinga and Ms Karua are seeking to invalidate Kenya Kwanza leader William Ruto's election win, which was declared by IEBC chair Wafula Chebukati last week.

Mr Odinga and Ms Karua also want to be awarded costs that will be incurred in the legal proceedings. They want the costs to be paid by Mr Chebukati in his individual capacity "in view of his continual unconstitutional conduct."

They filed their written arguments Friday ahead of Tuesday's status conference.

'Tainted' votes removed from tally

Through lawyer Paul Mwangi, they have requested a fresh court order that is likely to affect the election results outcome announced by Mr Chebukati on August 15 at Bomas of Kenya that declared Dr Ruto and Rigathi Gachagua as the President-elect and Deputy President-elect, respectively. 

Mr Mwangi is asking the court to issue a declaration that all the votes affected by alleged election irregularities are invalid and should be struck off the final tally and computation of the presidential results. Further, he has asked that the genuine results tallied and verified after a forensic audit be considered the valid outcome of the presidential election.

In addition, Lawyer Mwangi urges court to nullify the results declared by the IEBC and issue a declaration the IEBC do tally and verify the count and declare Mr Odinga and Mr Karua as duly elected as president-elect and deputy president-elect, respectively.

'Abolish IEBC'

Alternatively, he wants an order for abolition of the of IEBC on grounds that the commission as presently constituted is incapable of presiding over and rendering a proper, credible, verifiable valid presidential election.

In the submissions, they have stated that their complaint about the conduct of August 9 presidential election is not only about anomalies and irregularities but also "an attempt to subvert the sovereign will of the people of Kenya and to overthrow the constitutional order."

In the 40-page documents, the Azimio leaders are also seeking various orders including a fresh presidential election, abolition of the current electoral commission and fresh procurement of new technology for purposes of the repeat election. They claim the current commission is incapable of presiding a fresh polls. 

They alleged that IEBC failed to comply with the Constitution and the written law, which by itself is sufficient to invalidate the presidential election.

Mr Odinga and Mr Karua also claim that the slim margin by which the election was called is critical to the dispute in court.

"The election results was declared on the basis of 0.49 percent of the total valid votes cast, which is equivalent to approximately 69,000 votes. That slim margin is the context against which Ruto was declared to have met the constitutional threshold," the duo states.

Election technology 'compromised'

According to the Azimio leaders, the elections technology intended for verification of the results from polling station "was so badly compromised by third parties and used to facilitate the manipulation of results."

"Mr Odinga's votes were systematically recalibrated for the benefit of Ruto," says Mr Mwangi.

He also alleges that there was interference with the systems of the electoral commission.

"The Kenya Integrated Election Management System (Kiems) system deployed by Smartmatic International B.V for purposes of the 2022 general elections failed the test of security and transparency. It was incapable of delivering a verifiable and accurate results in strict compliance with the constitution and the election act and the electoral jurisprudence developed by the court," says Mr Mwangi. 

He intends to produce four witnesses, including former permanent secretary and corruption whistleblower John Githongo, Benson Wesonga, Bernard Adongo and Ms Karua to testify on the alleged systematic corruption and compromised Kiems kits.

"The evidence shows that acts complained of were committed by third parties and senior employees of the IEBC acting in connivance with Mr Chebukati in order to achieve a pre-determined outcome in favour of Ruto," the court documents read in part.

Another allegation made by the duo is that although each Kiems kit was supposed to send only one Form 34A that is uniquely geo-fenced and tied to the kit by a unique QR code, but Mr Wasonga says that some Kiems kits were able to transmit multiple forms from other polling stations.

He has cited two Kiems kits that allegedly uploaded two different forms which they claim were changed.

Their lawyer wants a declaration that Dr Ruto was not validly elected and for the Supreme Court to declare Mr Odinga and Ms Karua as President-elect and deputy president-elect respectively  upon scrutiny of the votes and results.

In the alternative, they want a declaration that should the court determine that the non-compliance with the constitution and other election laws, irregularities and illegalities adversely affect the presidential election as a whole, the court should invalidate the entire election and order a fresh poll.

The submissions were filed by lawyer Fred Orego, who said that they have complied with the Supreme Court rules to summarise the entire petition and evidence into a 40-page document.

They are also seeking to strike out a petition by two outgoing MPs, Mr Moses Kuria and Mr Geofrey King'ang'i, who had lodged a counter petition against Mr Odinga's case.