Aynsley Genga is a JURIST Staff Correspondent in Kenya. She reports from Nairobi.
Friday was the final hearing day for the presidential election petition before the Supreme Court of Kenya. The Supreme Court’s agenda for the day was listening to the answers given by both the respondents and petitioners to outstanding questions judges had asked both sides.
The court began by listening to the submissions given by the respondents, including William Ruto and IEBC chairman Wafula Chebukati, supporting the validity of the recently completed election process during which Chebukati declared Ruto the winner of the presidential contest. The respondents’ lawyers attempted to answer the court’s questions, but to be completely honest I found the whole session a waste of time. The lawyers just went round in circles but never actually answered the questions. Considering this was done quite early in the morning it was even more frustrating to watch them not answering the questions that they themselves had said were easier to answer than the questions directed at the petitioners, including Aziomo party leader Raila Odinga.
One of the lawyers representing the respondents was George Murugu. He discussed the issue of whether the IEBC chairperson can tally and verify the results alone. The lawyer referred to article 138(3c) of the Kenya Constitution which states that the commission shall tally and verify the results after the votes have been counted. When he said this, many people were perplexed, since it seemed he was contradicting other members of his legal team who had stated the chairperson alone had authority to tally and verify. Murugu then went on to state that all the commissioners had been involved in the tally and verification process and therefore IEBC chairman Chebukati did nothing wrong. This confused people even further, since people were wondering how he could make such a claim even after the four of the commissioners had come out to disavow the results even before Chebukati announced them.
Once Murugu had finished his submission he handed over the mantle to his fellow legal counsel, Mahat Somane. Advocate Mahat dealt with two questions: a) Are there voters who just walked in and voted for the president only and left even though a voter is meant to vote for 6 positions in total? and (b) what was the turnout and what was the relevance in determining the 50+1% of the required to declare a presidential winner? In regards to the first question, he did not even try answering it, but simply said that it was impossible for a voter to leave with ballot papers from the polling stations. A good number of the public who had tuned in to watch wondered what his response had to do with the question. After all, he neither denied or confirmed that such an event occurred. When it came to the second question, Mahat was bold enough to ask, ” Is turnout really important in the declaration of results?” When I first heard his question, I could not believe he had asked it; for a second, I even thought I had misheard him. I honestly could not understand how a man representing the electoral commission, a commission that is meant to be for the benefit of the people, could actually ask whether the turnout even matters. It was like he was spitting in the face of everyone who went out to vote, the citizens who believed that their vote mattered and would contribute to making Kenya a better place. After all, the turnout rate shows the number of people who actually voted. Without it, is it even possible to announce a winner? How do you announce a winner when you do not even know the number of people who came out to vote? Mahat’s question disappointed not only me, but other Kenyans as well.
The other lawyers for the respondents kept their submissions brief and barely answered any of their questions. By the time the petitioners’ lawyers took the stage, a good number of TV viewers of the proceedings had already lost interest. However, once the petitioners’ lawyers started making their submissions, peoples’ interest in the hearing slowly began to rise until it finally peaked when lawyer Julie Soweto dropped one of the biggest bombshells we had seen during the case. All was calm until Julie asked the court to access the IEBC portal through their website. She stated that she would be doing a live demonstration to show the court that the election forms had been interfered with. She started by clicking on Gacharaigu Primary School located in Muranga, She went through a form the 34A collected in stream 2 of the said school. She pointed out the issues with the IEBC stamp that was on the form and the fact that total votes cast were 316 and yet when one goes to the final tally it indicates that the votes cast were 321. This does not make sense especially if you consider that there were 4 rejected votes. She then directed the court’s attention towards the top left of the form where everyone could see the name of Jose Camargo, one of the Venezuelans who had been arrested with election material. Julie Soweto reminded the court that Mr. Gumbo, one of the IEBC lawyers had clearly stated that there were no foreigners who had accessed the IEBC portal since they had already left by 8th August 2022. She therefore wanted to know why Jose’s name was on our electoral forms. The appearance of one of the three Venezuelan names on the form spread like wildfire online, on platforms like Twitter and Facebook that’s what the majority of Kenyans were discussing.
Lawyer Julie did not stop there. She also looked at a form 34As collected at Psongoywa Primary School, Bungoma and compared it one from Thunguma Primary School, Nyeri. She quickly pointed out that both areas had the same serial number, which should be impossible since all KIEMS validating kits are unique to one another and should not share serial numbers. Moreover, she pointed out that the results for the school in Nyeri came out after the results of the school in Bungoma. This was to prove that someone was altering the results in accordance with the results tallied in certain areas. Additionally, Julie questioned why the electoral forms that were meant to be colored were all black and white, despite the fact that they were originally in JPEG format. Julie Soweto’s performance pleased many people and got people finally interested in the petition again.
Lawyer Zehrabanu Janmohamed also presented her final submissions. She was very displeased with how the respondents had handled their questions. She even stated that IEBC lawyers did not resolve the issue regarding the role of IEBC commissioners, and also did not explain to the court why they stopped live streaming the results for the final 27 constituencies. Senior Counsel went on to express her dismay in how Chebukati has been handling the situation so far. She could not understand how a man who was supposed to be neutral could tell people to just get over their loss and move on despite knowing that peoples’ constitutional rights were breached. “Are we supposed to move on even if there has been a breach of the constitution?”, she asked. Janmohamed then went on to quote Orwell’s infamous Animal Farm when she was discussing on the powers of the IEBC chairperson. ” All men are equal but are some are more equal than others. Does it mean that the chairman is more equal than anybody else? Are the other commissioners just flower girls and page boys while the chairperson is the groom/bride?”, she asked. She raised questions that many Kenyans were thinking, especially since some were feeling like their vote did not even matter if – in the end – an election can be determined by one person.
We also heard from lawyer James Orengo, who asked the court about the independence of the commission. He reminded the court that the main reason that the commission was made independent was to ensure elections are free, fair, accountable and transparent. He stated that if IEBC believed they were innocent, then why were they denying the petitioners access to the IEBC server? Mr. Orengo could not understand how it was easier to acquire election information back in the 1990s as compared to now when the law is better developed. He reminded the court to consider chapter 6 of the Constitution that focused on leadership and integrity when making their determination.
Senior Counsel Pherozee Nowrojee also made his final submissions. The man is a living legend in the law arena, having been a practicing lawyer since 1965, and was there when Kenya needed lawyers to stand up and demand multi-partyism in the 1990s. In his submission he addressed the issue of chaos in Bomas during the announcement of the presidential results. He argued that Chebukati claimed that his life was in danger, and yet 20 minutes later he was seen announcing the results and shaking hands with his client, William Ruto. Pherozee further noted that he seemed quite fine at the moment, no injury or any sign of discomfort could be seen. He said that Chebukati had ruined Kenyan elections for the second time and must not be allowed to get away scot-free this time round. “Power to announce does not give you the power to decide what to announce,” he had said of Chebukati earlier in the week.
Honestly after the respondents’ fiasco in the morning, there was no other dull moment in the rest of the hearing. Lawyer Mahat Somane made another appearance to address the issue raised by Advocate Julie Soweto. He said that issue of the serial number was due to an error in serialization. This turned heads since Mahat was the same lawyer who had stated on Thursday that the IEBC portal was perfect and that it had no system errors yet here he was backtracking what he said. Lawyer Mahat then moved on to the issue of the Venezuelan’s name appearing on the electoral form. He explained that the name came from the QR register that is distributed to every polling station. Citizens then questioned if what Advocate Mahat said was indeed true then how come Jose Camargo’s name did not appear on all electoral forms and yet Mahat claimed that the QR register had been distributed to all polling stations? Many were left in doubt after his explanations while his supporters were left trying to defend him online which seemed futile at that point in time.
We also had new and upcoming lawyers like Njoki Mboce who did a splendid job considering this was probably her first big case. Her main focus was on the issue of accessing the IEBC server. She informed the court her and her colleagues had been denied access despite the Court’s order since Smartmatic, the technolonogy firm that provided our electronic voting technology, claimed that granting access would infringe on their intellectual property rights. Lawyer Njoki passionately called on the court to do something about the matter.
The submissions do not end there. Okiya Omtatah, one of the petitioners came in and turned the courtroom into a mathematics class. Nobody could believe it when Omtatah said he would be doing a presentation showing how the results were cooked. I honestly do not think people fully understood how serious he was about showing the court how the final results were calculated until that moment. Omtatah presented his screen and began explaining to the court step by step how the math was done, by the time he was done Kenyans were left speechless cause there was nothing to refute. His math was logical, nobody could say it was fictitious.
More submissions were made before Chief Justice Koome finally ended the hearing and announced that judgment would be ready on 5th September 2022. The Judges therefore have the weekend to make their final determination in a hidden location. While the Judges do their jobs, Kenyans are left to continue wondering how the judgment will go. People online are already declaring their preferred candidate the winner, some are even at the tailor’s getting their celebration outfits ready. There are also those who have gone back to the Lord to pray for the Monday judgment. One way or another, everyone is waiting to see how the verdict will go.