Following the State Opening of the joint sitting of the Senate and National Assembly, I encourage our legislators across the political divide to settle down to their duties as soon as possible and selflessly serve the Kenyan people. I look forward to a vibrant Legislature keen on supporting the good in the Executive while keeping in check the excesses.
At this time, I would like to empathize with the over 200 families displaced as a result of floods in Garsen and Magarini. I urge both the Central Government and the concerned County Governors to take appropriate action to alleviate the suffering of these Kenyans.
Raila Odinga
CONDOLENCES ON DEATH OF MRS MARGARET THATCHER:
It is with great sadness that I have learnt of the death of Margaret Thatcher, the former Prime Minister of Britain.
I take this opportunity to wish well her family, the Conservative Party and the people of Britain.
Mrs Thatcher will go down in history not only as Britain’s first female prime minister, but as a pioneer of many important ideas that transformed not only her country but many nations across the globe, including Kenya.
She pioneered a closer scrutiny of what the role of the state should be in the lives of citizens, a debate that rages to date, and which led to improved conditions for many people in many nations.
Many features of the modern economic governance like privatisation, deregulation, size of government, free trade, among others, owe their rise and popularity to her tenure when she tried to stem economic decline in her country.
She popularized the idea that a functioning economy is at the centre of freedom with sayings l like “there is no liberty unless there is economic liberty.”
Margaret Thatcher fired up women’s involvement in politics and public life with famous remarks like; “if you want something said, ask a man; if you want something done, ask a woman.”
She may be gone, but the ideals she bequeathed the world will inspire generations to come.
May she rest in eternal peace.
Rt. Hon. Raila A. Odinga, EGH,
PRIME MINISTER; Monday, April 8, 2013.
STATEMENT OF THE RT. HON RAILA A. ODINGA ON THE JUDGEMENT OF THE SUPREME COURT
29thMarch, 2013
Fellow Kenyans,
Members of the media,
Ladies and gentlemen,
Good afternoon,
You will recall that on 9th March 2013, I issued a statement on the conduct of the elections which had just been concluded.
I expressed my deep gratitude to all Kenyans who had turned out massively to exercise their democratic rights to vote and elect their leaders.
I however expressed my dismay that contrary to the expectations of Kenyans, we witnessed the failure of virtually every instrument the IEBC had deployed to ensure free, fair and transparent elections.
I outlined such failures, with concrete examples of the anomalies that all of us witnessed. It was clear that the constitutionally sanctioned process of electing new leaders had been thwarted again by another tainted election. Democracy was on trial in Kenya.
But that has not dented my commitment to constitutionalism and the rule of law.
Enforcing the spirit and letter of the constitution remains the only sure way to peace and prosperity for our young democracy.
My decision to file a petition in the Supreme Court to challenge the validity of the election was a testament of my faith in the independence of our judiciary.
We did so for the sake of our democracy and for the sake of all Kenyans who wanted to exercise their constitutional right to elect their leaders through free and fair election.
We were joined in this endeavour by Africog, which separately filed a petition seeking to nullify the fourth of March Presidential election.
This proves that my petition had nothing to do with personal grudge as contended by the IEBC, Hon Uhuru Kenyatta and Hon William Ruto.
In the petition, I expressed our belief that the court would uphold the letter and spirit of our constitution. I pledged to abide by the court decision.
We prosecuted the case to the best of our ability.
Our legal team, led by Senior Counsel George Oraro compiled formidable and logical evidence showing that massive malpractices occurred during the elections.
We unearthed evidence of technology failure that required a full audit, inappropriate conduct on the part of IEBC staff, irregular and unethical arrangements such as the sharing of servers by IEBC with a competitor and unmarked registers.
We regret that the court disallowed evidence on the grounds that it was either filed late or the court did not have time to inquire into these discrepancies. In the end, Kenyans lost their right to know what indeed happened.
Ladies and gentlemen,
The court has now spoken. Article 140 of our constitution states that “the Supreme Court shall hear and determine the petition and its decision is final.”
Although we may not agree with some of its findings, and despite all the anomalies we have pointed out, our belief in constitutionalism remains supreme.
Casting doubt on the judgment of the court could lead to higher political and economic uncertainty, and make it more difficult for our country to move forward.
We must soldier on in our resolve to reform our politics and institutions. Respect for the supremacy of the constitution in resolving disputes between fellow citizens is the surest foundation of our democratic society.
And the courts should always act within the evolving constitutional culture.
I and my brother and running mate Hon Kalonzo have no regrets for taking our case to court.
Indeed, it is our view that this court process is yet another milestone in our long road towards democracy for which we have fought so long.
Truth, justice and the faithful implementation of the constitution is our best guarantee to peace and security.
Ladies and gentlemen,
It is my hope that the incoming government will have fidelity to our constitution, and implement it to the letter for the betterment of our people. I wish president –elect Uhuru Kenyatta and deputy President elect William Ruto best of luck in this endeavour.
I also wish all the Senators, Members of Parliament, Women Representatives, Governors and others who were elected in the last election success in discharging the expectations of our people.
I want to thank Senior Counsel George Oraro and the members of his legal team for their hard work and devotion in the quest for justice. I would also like to pay special tribute to the Africog legal team led by Kethi Kilonzo for their immense contribution to the rule of law and democracy.
To the Kenyans who supported us and our petition, I want to assure you that I will continue to work for you and with you to build our county, Kenya, and to help you achieve your dreams.
My actions have always been guided by my desire to bring about a better life for all Kenyans, particularly those who are less privileged. The future of Kenya is bright. Let us not allow the elections to divide us. Let us re-unite as a Nation.
Finally, I call on all Kenyans– our supporters and opponents alike – to remember the sacred words of our National Anthem: Justice be our shield and defender;
Thank You and God Bless Kenya.
PM dismisses quit order on Ministers.
PMPS. 20th March 2013.
Prime Minister Raila Odinga has dismissed a directive to Ministers and Assistant Ministers who were elected on the 4th of march to resign before taking up new jobs.
In a press statement, the PM said that there were no provisions requiring Ministers to quit in the manner stated by Head of the Public Service through the government spokesman yesterday.
He stated that “the status and tenure of the President, the Prime Minister the Vice President, Cabinet Ministers and assistant ministers are governed by section 12 of the sixth schedule of the constitution and the National Reconciliation Act”.
Mr. Odinga said the Attorney General had rightly indicated earlier that the President ,the Prime Minister, the Vice President ,cabinet Minister’s remain in office until the assumption of office by the duly elected President and Cabinet Secretaries .
‘’The purported directive on this matter from the Head of the Public service has therefore no constitutional or legal foundation. It is misleading and inaccurate and should be disregarded’’, he said.
The PM pointed out that in line with the AGs interpretation, the President and Cabinet which includes the Prime Minister and the Vice President are in office as a caretaker government and are only exercising executive power during a temporary incumbency.
‘’It should be noted that the incumbent as caretaker President, amongst other things cannot nominate or appoint or dismiss Ministers and the State or public Officers’’ posed, Mr. Odinga.
He added that the statement of the Head of Public Service can only be relevant in respect of Cabinet Secretaries appointed after the general election.
Mr. Odinga pointed out the Grand Coalition government was still intact and in place led by the two principals; the President and Prime Minister.
‘’The coalition government at the level of the President, Prime Minister, Vice President and Ministers will stand dissolved when the duly elected President following the first general elections under the new constitution takes the oath of office’’,he explained.
SUMMARY OF THE CORD PETITION
What the Petitioner (Hon. RailaOdinga)is asking the court to do:
1. Set aside the results of the Presidential election as announced by IEBC on 9March 2013, and the declaration of Uhuru Kenyatta as President-elect and William Ruto as Deputy President-elect respectively, and declare asnull and void the whole electoral process leading to that declaration.
What the petition says:
· There was no free or fair presidential elections. Consequently no government could lawfully be formed by or from the purported declaration on 9th March 2013, of Uhuru Kenyatta and William Ruto as President-elect and Deputy President-elect respectively, by the IEBC and its chairman to the dishonor of the Kenyan people.
· The voter register was severally altered as to make it difficult to tell which one was used finally. For the purposes of the 4th March elections the registration of voters was carried out between 19November 2012 to 18th December, 2012, at the end of which the IEBC announced that 14,337,399 persons had registered as voters.
· In breach of the mandatory legal requirement, the IEBC has falsely, unlawfully and illegally in flagrant disregard of the law and its declaration of the result of the presidential election held on the 4th March, 2013 reflected the total number of registered voters as 14,352,533 well above the total number of registered voters as the date of closing of registration on 18th December, 2013. Indeed, during February 2013, the IEBC announced that they had discovered approximately 20,000 persons who had double registered in the December registration, and accordingly reduced the register tally to 14,267,572 voters as displayed on its website. The illegally inflated March 2013 register exceeded this corrected figure by some 85,000 voterS
· The Petitioner avers that increasing the number of registered voters was intended to permit the IEBC to manipulate the presidential election held on 4th March, 2013 and their purported results and declaration, on 9th March, 2013 was null and void. That by abandoning the process of electronic identification at the polling stations and releasing results based not on the safeguarded, agreed, determined and credible electoral process it had promised and committed to, and by which legitimate expectations accrued, but a process that failed so significantly, substantially and endemically, IEBC effectively failed to reflect the will of the Kenyan people at the election.
· Arising from the acts and omissions of the IEBC, Hon. RailaOdinga and indeed the people of Kenya, were deprived of a free and fair election devoid of manipulation, an expectation which was denied, thereby irreparably undermining the entire process and result as declared on 9th March, 2013.
· Because of the IEBC and its chairman’s acts and omissions, the electoral process and the outcome thereof is so flawed in so fundamental and grave a sense, taken together or viewed separately, that it is difficult to tell whether the results were the true, lawful and proper expression of the Kenyan people’s will.
· The EVID and BVR system and the electronic results transmission systems adopted by the First Respondent were so poorly selected, designed and implemented that they were destined to fail from inception, to the knowledge of the IEBC; the failure and collapse, on a catastrophic scale on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place.
· The IEBC and its chairman’s purported official tally of registered voters inexplicably and mysteriously grew overnight by a large proportion on the eve of the election, notwithstanding that registration had closed some thirty days and was by law not permitted to be opened or changed.
· The results as declared and recorded by IEBC contained wide spread instances of manipulation of the returns through manipulation of Form 36 and in some instances the votes cast exceeding the numbers of registered voters, in flagrant breach of the fundamental Constitutional principles (see examples below).
· Although a common register was to be – and indeed was – compiled for all the six levels of elections in the general elections of 4th March, 2013, it turned out from the results declared by IEBC that the total number of registered voters and votes cast in respect of the presidential elections in some instances exceeded that of the registered voters and those cast for Parliamentary elections after taking due account of any spoilt or rejected or disputed votes to the detriment of RailaOdinga. The numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis other than the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying thereof by the IEBC or their officers or their condoning of or connivance in the same to the advantage of Uhuru and Ruto thereby rendering their alleged win invalid, illegal, null and void.
Anecdotal examples of widespread anomalies:
Glaring anomalies were observed in the process from voter registration, to transmission of results, to tallying.
(a) the result were declared on the basis of unsigned Form 36,
(b) multiplicity of Form 36, and variants of entries in some constituencies
(c) alterations on files and
(d) brazen disregard by the IEBC of the entries on the files of constituencies which were eventually reflected in the final tally of Presidential election results and which were announced without signed verification Form 34s.
Votes cast exceeded the number of registered voters, including Tiaty, Laisamis, Igembe Central, Buri, Chuka, IburiIgambaNgombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai.
Results in Form 36 disclosed by the First Respondent were materially different from the results that were posted in the final tally of the presidential results published by the First Respondent. This included in Webuye East, Webuye West and Igembe Constituencies.
Registered voter numbers in polling stations were inflated in Form 34 contrary to what was contained in Form 36. These included Kaproi Nursery School, Metipso Primary School, Maina Primary School, asaibul Primary School, Sewerwa Nursery School, Liter Secondary School, Chesongoch Catholic Church, Mungiwa Primary School, Chawich Primary School and Lemeuywo Primary School. In most of those circumstances, more votes were cast than the total number of registered voters.
More than two Form 36 reflecting different returns. These included Kikuyu Constituency, Juja Constituency, Chuka Constituency, Thika Constituency.
Alterations in Form 36 without acknowledgment including Kiambaa and Limuru Constituencies.
More valid votes cast in some constituencies reflected in Forms 36 than in Form 34 including in Chesumei, Emngwen and Ainamoi.
Different entries in two Forms 36 submitted in respect of the same constituency for example in Mathira Constituency.
Published results materially different from the results reflected in the County tallying, for example in Nakuru, not to mention the material variation between the verbal declaration made by the various Commissioners of IEBC at the national tallying centre allegedly after verification of results and the fiinal figures which are set out by the IEBC including those of South Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Boment East and Sigor.
***
Highlights/Quotes from the affidavit
” I believe that First and Second Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.”
” In the final tally, the total number of votes cast in the Presidential Elections differed materially from those declared by the First and Second Respondents for purposes of the Gubernatorial and Parliamentary elections which took place on the same date clearly attesting to my belief that massive electoral fraud and malpractice occurred or permitted to occur by the First and Second Respondents in contravention of the requirements of the Constitution and the legislative framework in place as regards the 4th March, 2013 presidential election.”
Highlights/quotes from the petition/re electronic system:
“its failure and collapse, on a catastrophic scale on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place; “
“Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.”
“the numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis other than the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying”
“A curious and very concerning feature of the First Respondent’s conduct was that it allowed Kencall to co-host both its server and that of the TNA, which of course may compromise the integrity of the electoral process but at very least gives the very real impression that the TNA has access to sort of information which is at the very least initially confidential to the First Respondent.”
SUMMARY OF THE CORD PETITION
What the Petitioner (Hon. RailaOdinga)is asking the court to do:
1. Set aside the results of the Presidential election as announced by IEBC on 9March 2013, and the declaration of Uhuru Kenyatta as President-elect and William Ruto as Deputy President-elect respectively, and declare asnull and void the whole electoral process leading to that declaration.
What the petition says:
· There was no free or fair presidential elections. Consequently no government could lawfully be formed by or from the purported declaration on 9th March 2013, of Uhuru Kenyatta and William Ruto as President-elect and Deputy President-elect respectively, by the IEBC and its chairman to the dishonor of the Kenyan people.
· The voter register was severally altered as to make it difficult to tell which one was used finally. For the purposes of the 4th March elections the registration of voters was carried out between 19November 2012 to 18th December, 2012, at the end of which the IEBC announced that 14,337,399 persons had registered as voters.
· In breach of the mandatory legal requirement, the IEBC has falsely, unlawfully and illegally in flagrant disregard of the law and its declaration of the result of the presidential election held on the 4th March, 2013 reflected the total number of registered voters as 14,352,533 well above the total number of registered voters as the date of closing of registration on 18th December, 2013. Indeed, during February 2013, the IEBC announced that they had discovered approximately 20,000 persons who had double registered in the December registration, and accordingly reduced the register tally to 14,267,572 voters as displayed on its website. The illegally inflated March 2013 register exceeded this corrected figure by some 85,000 voterS
· The Petitioner avers that increasing the number of registered voters was intended to permit the IEBC to manipulate the presidential election held on 4th March, 2013 and their purported results and declaration, on 9th March, 2013 was null and void. That by abandoning the process of electronic identification at the polling stations and releasing results based not on the safeguarded, agreed, determined and credible electoral process it had promised and committed to, and by which legitimate expectations accrued, but a process that failed so significantly, substantially and endemically, IEBC effectively failed to reflect the will of the Kenyan people at the election.
· Arising from the acts and omissions of the IEBC, Hon. RailaOdinga and indeed the people of Kenya, were deprived of a free and fair election devoid of manipulation, an expectation which was denied, thereby irreparably undermining the entire process and result as declared on 9th March, 2013.
· Because of the IEBC and its chairman’s acts and omissions, the electoral process and the outcome thereof is so flawed in so fundamental and grave a sense, taken together or viewed separately, that it is difficult to tell whether the results were the true, lawful and proper expression of the Kenyan people’s will.
· The EVID and BVR system and the electronic results transmission systems adopted by the First Respondent were so poorly selected, designed and implemented that they were destined to fail from inception, to the knowledge of the IEBC; the failure and collapse, on a catastrophic scale on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place.
· The IEBC and its chairman’s purported official tally of registered voters inexplicably and mysteriously grew overnight by a large proportion on the eve of the election, notwithstanding that registration had closed some thirty days and was by law not permitted to be opened or changed.
· The results as declared and recorded by IEBC contained wide spread instances of manipulation of the returns through manipulation of Form 36 and in some instances the votes cast exceeding the numbers of registered voters, in flagrant breach of the fundamental Constitutional principles (see examples below).
· Although a common register was to be – and indeed was – compiled for all the six levels of elections in the general elections of 4th March, 2013, it turned out from the results declared by IEBC that the total number of registered voters and votes cast in respect of the presidential elections in some instances exceeded that of the registered voters and those cast for Parliamentary elections after taking due account of any spoilt or rejected or disputed votes to the detriment of RailaOdinga. The numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis other than the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying thereof by the IEBC or their officers or their condoning of or connivance in the same to the advantage of Uhuru and Ruto thereby rendering their alleged win invalid, illegal, null and void.
Anecdotal examples of widespread anomalies:
Glaring anomalies were observed in the process from voter registration, to transmission of results, to tallying.
(a) the result were declared on the basis of unsigned Form 36,
(b) multiplicity of Form 36, and variants of entries in some constituencies
(c) alterations on files and
(d) brazen disregard by the IEBC of the entries on the files of constituencies which were eventually reflected in the final tally of Presidential election results and which were announced without signed verification Form 34s.
Votes cast exceeded the number of registered voters, including Tiaty, Laisamis, Igembe Central, Buri, Chuka, IburiIgambaNgombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai.
Results in Form 36 disclosed by the First Respondent were materially different from the results that were posted in the final tally of the presidential results published by the First Respondent. This included in Webuye East, Webuye West and Igembe Constituencies.
Registered voter numbers in polling stations were inflated in Form 34 contrary to what was contained in Form 36. These included Kaproi Nursery School, Metipso Primary School, Maina Primary School, asaibul Primary School, Sewerwa Nursery School, Liter Secondary School, Chesongoch Catholic Church, Mungiwa Primary School, Chawich Primary School and Lemeuywo Primary School. In most of those circumstances, more votes were cast than the total number of registered voters.
More than two Form 36 reflecting different returns. These included Kikuyu Constituency, Juja Constituency, Chuka Constituency, Thika Constituency.
Alterations in Form 36 without acknowledgment including Kiambaa and Limuru Constituencies.
More valid votes cast in some constituencies reflected in Forms 36 than in Form 34 including in Chesumei, Emngwen and Ainamoi.
Different entries in two Forms 36 submitted in respect of the same constituency for example in Mathira Constituency.
Published results materially different from the results reflected in the County tallying, for example in Nakuru, not to mention the material variation between the verbal declaration made by the various Commissioners of IEBC at the national tallying centre allegedly after verification of results and the fiinal figures which are set out by the IEBC including those of South Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Boment East and Sigor.
***
Highlights/Quotes from the affidavit
” I believe that First and Second Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.”
” In the final tally, the total number of votes cast in the Presidential Elections differed materially from those declared by the First and Second Respondents for purposes of the Gubernatorial and Parliamentary elections which took place on the same date clearly attesting to my belief that massive electoral fraud and malpractice occurred or permitted to occur by the First and Second Respondents in contravention of the requirements of the Constitution and the legislative framework in place as regards the 4th March, 2013 presidential election.”
Highlights/quotes from the petition/re electronic system:
“its failure and collapse, on a catastrophic scale on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place; “
“Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.”
“the numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis other than the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying”
“A curious and very concerning feature of the First Respondent’s conduct was that it allowed Kencall to co-host both its server and that of the TNA, which of course may compromise the integrity of the electoral process but at very least gives the very real impression that the TNA has access to sort of information which is at the very least initially confidential to the First Respondent.”
SUMMARY OF THE CORD PETITION
What the Petitioner (Hon. RailaOdinga)is asking the court to do:
1. Set aside the results of the Presidential election as announced by IEBC on 9March 2013, and the declaration of Uhuru Kenyatta as President-elect and William Ruto as Deputy President-elect respectively, and declare asnull and void the whole electoral process leading to that declaration.
What the petition says:
· There was no free or fair presidential elections. Consequently no government could lawfully be formed by or from the purported declaration on 9th March 2013, of Uhuru Kenyatta and William Ruto as President-elect and Deputy President-elect respectively, by the IEBC and its chairman to the dishonor of the Kenyan people.
· The voter register was severally altered as to make it difficult to tell which one was used finally. For the purposes of the 4th March elections the registration of voters was carried out between 19November 2012 to 18th December, 2012, at the end of which the IEBC announced that 14,337,399 persons had registered as voters.
· In breach of the mandatory legal requirement, the IEBC has falsely, unlawfully and illegally in flagrant disregard of the law and its declaration of the result of the presidential election held on the 4th March, 2013 reflected the total number of registered voters as 14,352,533 well above the total number of registered voters as the date of closing of registration on 18th December, 2013. Indeed, during February 2013, the IEBC announced that they had discovered approximately 20,000 persons who had double registered in the December registration, and accordingly reduced the register tally to 14,267,572 voters as displayed on its website. The illegally inflated March 2013 register exceeded this corrected figure by some 85,000 voterS
· The Petitioner avers that increasing the number of registered voters was intended to permit the IEBC to manipulate the presidential election held on 4th March, 2013 and their purported results and declaration, on 9th March, 2013 was null and void. That by abandoning the process of electronic identification at the polling stations and releasing results based not on the safeguarded, agreed, determined and credible electoral process it had promised and committed to, and by which legitimate expectations accrued, but a process that failed so significantly, substantially and endemically, IEBC effectively failed to reflect the will of the Kenyan people at the election.
· Arising from the acts and omissions of the IEBC, Hon. RailaOdinga and indeed the people of Kenya, were deprived of a free and fair election devoid of manipulation, an expectation which was denied, thereby irreparably undermining the entire process and result as declared on 9th March, 2013.
· Because of the IEBC and its chairman’s acts and omissions, the electoral process and the outcome thereof is so flawed in so fundamental and grave a sense, taken together or viewed separately, that it is difficult to tell whether the results were the true, lawful and proper expression of the Kenyan people’s will.
· The EVID and BVR system and the electronic results transmission systems adopted by the First Respondent were so poorly selected, designed and implemented that they were destined to fail from inception, to the knowledge of the IEBC; the failure and collapse, on a catastrophic scale on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place.
· The IEBC and its chairman’s purported official tally of registered voters inexplicably and mysteriously grew overnight by a large proportion on the eve of the election, notwithstanding that registration had closed some thirty days and was by law not permitted to be opened or changed.
· The results as declared and recorded by IEBC contained wide spread instances of manipulation of the returns through manipulation of Form 36 and in some instances the votes cast exceeding the numbers of registered voters, in flagrant breach of the fundamental Constitutional principles (see examples below).
· Although a common register was to be – and indeed was – compiled for all the six levels of elections in the general elections of 4th March, 2013, it turned out from the results declared by IEBC that the total number of registered voters and votes cast in respect of the presidential elections in some instances exceeded that of the registered voters and those cast for Parliamentary elections after taking due account of any spoilt or rejected or disputed votes to the detriment of RailaOdinga. The numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis other than the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying thereof by the IEBC or their officers or their condoning of or connivance in the same to the advantage of Uhuru and Ruto thereby rendering their alleged win invalid, illegal, null and void.
Anecdotal examples of widespread anomalies:
Glaring anomalies were observed in the process from voter registration, to transmission of results, to tallying.
(a) the result were declared on the basis of unsigned Form 36,
(b) multiplicity of Form 36, and variants of entries in some constituencies
(c) alterations on files and
(d) brazen disregard by the IEBC of the entries on the files of constituencies which were eventually reflected in the final tally of Presidential election results and which were announced without signed verification Form 34s.
Votes cast exceeded the number of registered voters, including Tiaty, Laisamis, Igembe Central, Buri, Chuka, IburiIgambaNgombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai.
Results in Form 36 disclosed by the First Respondent were materially different from the results that were posted in the final tally of the presidential results published by the First Respondent. This included in Webuye East, Webuye West and Igembe Constituencies.
Registered voter numbers in polling stations were inflated in Form 34 contrary to what was contained in Form 36. These included Kaproi Nursery School, Metipso Primary School, Maina Primary School, asaibul Primary School, Sewerwa Nursery School, Liter Secondary School, Chesongoch Catholic Church, Mungiwa Primary School, Chawich Primary School and Lemeuywo Primary School. In most of those circumstances, more votes were cast than the total number of registered voters.
More than two Form 36 reflecting different returns. These included Kikuyu Constituency, Juja Constituency, Chuka Constituency, Thika Constituency.
Alterations in Form 36 without acknowledgment including Kiambaa and Limuru Constituencies.
More valid votes cast in some constituencies reflected in Forms 36 than in Form 34 including in Chesumei, Emngwen and Ainamoi.
Different entries in two Forms 36 submitted in respect of the same constituency for example in Mathira Constituency.
Published results materially different from the results reflected in the County tallying, for example in Nakuru, not to mention the material variation between the verbal declaration made by the various Commissioners of IEBC at the national tallying centre allegedly after verification of results and the fiinal figures which are set out by the IEBC including those of South Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Boment East and Sigor.
***
Highlights/Quotes from the affidavit
” I believe that First and Second Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.”
” In the final tally, the total number of votes cast in the Presidential Elections differed materially from those declared by the First and Second Respondents for purposes of the Gubernatorial and Parliamentary elections which took place on the same date clearly attesting to my belief that massive electoral fraud and malpractice occurred or permitted to occur by the First and Second Respondents in contravention of the requirements of the Constitution and the legislative framework in place as regards the 4th March, 2013 presidential election.”
Highlights/quotes from the petition/re electronic system:
“its failure and collapse, on a catastrophic scale on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place; “
“Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.”
“the numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis other than the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying”
“A curious and very concerning feature of the First Respondent’s conduct was that it allowed Kencall to co-host both its server and that of the TNA, which of course may compromise the integrity of the electoral process but at very least gives the very real impression that the TNA has access to sort of information which is at the very least initially confidential to the First Respondent.”
