Raila Odinga’s secret cards in clash with IEBC at the Supreme Court

Azimio presidential candidate Raila Odinga will file at the Supreme Court loads of documents and evidential material aimed at convincing judges that the electoral commission was involved in a series of fraudulent manipulation calculated to deny him a win in the August 9 General Election.

Multiple accounts by people familiar with ongoing efforts to mount a ‘watertight’ presidential petition point to a strong determination by the Azimio la Umoja One Kenya coalition to persuade the apex court to overturn President-elect William Ruto’s win in their candidate’s favour.

The team, comprising, among others, senior counsels Pheroze Nowrojee, Phillip Murgor, James Orengo and Amos Wako, intends to table a damning audit report that warned of rogue Independent Electoral and Boundaries Commission (IEBC) employees who had unfettered login credentials to single-handedly manipulate the voters' register, including having the powers to transfer polling stations without any oversight.

The audit report by consulting firm KPMG, which was submitted to IEBC top brass less than a week to the publication of the final voter register that was used in the just concluded elections, also captured cases of hundreds of thousands of voters who were either double-registered, were registered using expired passports or fictitious ID card numbers.

In early July, IEBC chairperson Wafula Chebukati announced that the commission had suspended and reported to the Director of Public Prosecutions three of its employees who were involved in the irregular transfer of voters, but the Azimio team will seek to convince the court that no remedial action was taken to stop the illegal manipulation, leaving open a window that was used to suppress the Azimio presidential candidate’s votes.

The drafting of the petition by lawyers assembled by Azimio La Umoja-One Kenya coalition party is at an advanced stage to be filed by tomorrow’s Supreme Court-imposed 2 pm deadline.

Supporting the senior counsels that Mr Odinga has assembled will be equally seasoned legal minds, including Prof Tom Ojienda, Daniel Maanzo, Otiende Amollo and Mutula Kilonzo Jnr.

A separate legal team is undertaking research and compiling data to form part of the evidence of the alleged electoral illegalities and irregularities.

The team is led by constitutional lawyer Paul Mwangi, Mr Odinga’s long-time legal consultant.

The team’s brief is to secure a declaration that Ruto was not validly declared president-elect. 

While spoiling for an epic legal showdown, Mr Ruto’s Kenya Kwanza Alliance is said to have put together a team that will be led by President Uhuru Kenyatta’s former lawyer Fred Ngatia and Ahmednasir Abdullahi—both senior counsels.

Other lawyers in the team include Adrian Kamotho, Elias Mutuma, Collins Kiprono and Emmanuel Kibet.

The Azimio legal team petition is intended to cast the net wide and far in seeking to convince the seven-judge bench to nullify the presidential election result as happened in 2017 when the court ordered a repeat of the race that pitted President Uhuru Kenyatta against Mr Odinga as the top candidates.

They intend to table evidence showing that an irreparable split within the commission made it impossible to procedurally verify tallying and publicly announce results, which they argue would have shown a different outcome from what Mr Chebukati pronounced on Monday.

Mr Chebukati declared Mr Ruto the president-elect having garnered 7.1 million votes, while Mr Odinga’s tally added up to 6.9 million votes. 

The lawyers will cite an ‘abnormal’ turnout of voters in some parts of the country in favour of the Kenya Kwanza Alliance, suspect application of electronic devices used in voter registration and voting and irregularities and discrepancies in the final results.

They will also argue the electoral commission’s decision to grant universal access to Forms 34A, B and C in the online portal opened a window for manipulation of the documents, which they will prove by tabling an audit report.

They will seek to convince Chief Justice Martha Koome’s team that tallying was not fully completed at the time Mr Chebukati declared Mr Ruto as the winner of the polls since the results of 28 constituencies were not yet verified.

The IEBC was hit by a falling-out that pitted four commissioners against three, making it dysfunctional in the hours leading to the announcement of the poll results. 

The petition claims that the final tally announced by Mr Chebukati is invalid since the commission never sat to verify and consider spoilt votes.

A splinter group of four members, led by vice chairperson Juliana Cherera, walked out of the Bomas of Kenya to announce their disassociation with the final results at Serena Hotel. They cited “opaqueness” in the process.

Mr Chebukati was left with a minority composed of three members.

On the register, the strategy is to lay doubt on the credibility of the roll of voters based on the KPMG audit.

The report exposed major security loopholes in the 2022 voter register, revealing that there were 14 mysterious Returning Officers (ROs) who had been running the IEBC Integrated Database Management System (IDMS).

The report unearthed weak password systems and log-in details of ghost electoral officials, pointing to the possibility of hackers accessing the database and proceeding to deny voters their right to cast their ballots by either deleting their details from the roll or transferring them away from their preferred polling stations.

The report revealed the existence of 10 users named ‘Embakasi South Clerks’. There were four additional but unauthorised IT users.

Additionally, there were 11 active generic accounts on the Automated Biometric System (ABIS) application and another two ABIS users with the same login identification.

Further scrutiny of the register revealed that the RO user accounts in IDMS were not allocated to the named users.

The petition also raises issues with the suspension of IEBC officials who were allegedly involved in irregularities, but it failed to disclose how it amended the issues.

With regard to the IEBC online portal, it is alleged that the electoral commission made a legal mistake by making available the election forms 34A and B to the public.

Although the commission says making them public was intended to promote transparency based on a Supreme Court 2017 decision, the petition claims that the legal requirement was for electronic transmission of the election results but not opening of the portal to all and sundry.

It is alleged that the portal was exposed to hacking and documents were exposed to manipulation.

On the questionable voter turnout, the petition indicates data was doctored and turnout inflated in some constituencies within the Mt Kenya region to be in favour of Dr Ruto.

It is alleged that the tally of votes cast for the other elective positions such as governor, Senate and women representative was lower by hundreds of thousands of votes, compared to that of the president.

The petition will ask IEBC to disclose what was the actual data of voter turnout captured in the Kenya Integrated Electoral Management System (Kiems) kits and how many voters were identified through the manual register.

Azimio Agents were allegedly chased away from polling centres at the beginning of polling in the Mount Kenya region on claims that Azimio is not a political party.

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