Aynsley Genga is a JURIST Staff Correspondent in Kenya. She reports from Nairobi.  

Earlier this week Kenya’s Supreme Court issued an order for the recounting of voting in 15 constituencies during Kenya’s recent general elections following a request made by the Azimio party. Once the recount was completed, the Registrar of the Supreme Court submitted a detailed report to the judges. The report stated that it was discovered that the second set of the election forms that the commission agreed would be sealed in tamper-proof envelopes had been used in 9 of the selected constituencies. Moreover errors were found in their tallying. The report went on to state that 6 of the polling stations failed to provide their second set of form 34As for scrutiny. The report indicated the various reasons given by the returning officers to explain the disappearance of the forms. The reasons include: a) the forms getting spoilt, b) confusion amongst the presiding officers due to lack of a good understanding of the electoral procedure or c) due to the presiding officer ruining the first set they had no choice but to use the second set of the form 34As. “Other returning officers had no explanation for the absence of form 34A book 2. They indicated that they had just learned of the anomaly together with the scrutiny. The Kiambaa constituency returning officer explained that her presiding officer used book 2 because he had spoilt book 1. They, however, did not provide the spoilt form 34A book 1 for the team’s scrutiny, and the PSD did not indicate that the form 34A book 2 had been spoilt,” the report states.

There has also been an issue regarding to the Azimio party’s request to access the server at IEBC (the Independent Electoral and Boundary Commission). Azimio lawyer Philip Murgor reported to the court on Thursday morning stating that Azimio was still being denied access to the servers. This was contradicted by Justice Leonala who said that according to a report the court had received from their registrar, the IEBC had complied with the court’s orders. “We received a full report from our technical team that was leading the exercise at IEBC and have been informed that the process of compliance was completed last night. As far as our team is concerned, the process at IEBC is finished,” he said. This caused a lot of confusion amongst Kenyans. The confusion turned to anger after Smartmatic, the technology firm that was used in the general elections, stated that they would not open the servers for Azimio agents since they believed this would infringe on their intellectual property rights. Kenyans were left in shock after seeing what Smartmatic had stated. Many were left wondering how a foreign company could deny Kenyans their democratic right to information and yet it was those same tax-paying citizens who had paid for their services. Others joked that Chebukati, the IEBC chairman, can allow foreigners to access our personal details but when it comes to his fellow Kenyans he draws the line. Citizens were angry, they could not believe what they were seeing and their anger continued to rise especially after word started spreading online that the tech firm may have been involved in the rigging of elections in the Philippines. Despite these claims being allegations, it was more than enough to discourage a good number of Kenyans.  As it stands, people are waiting to hear the Court’s thoughts on Friday in regards to the matter at hand.

As the day progressed Thursday, the US Embassy imposed movement restrictions on all US government personnel in Kisumu until after the court has made its decision on the presidential petition. This confused many especially Kisumu residents who felt they were being cast as violent people. People like the Narok Senator, Ledama, wondered if there was something that the Embassy knew that the government was not saying since they found it unfair that Kisumu was the only county to be blacklisted. The Embassy probably did not mean any harm by what they did but it definitely painted a bad picture for them amongst the Kenyan citizens.

Also Thursday we entered the second day of the presidential election hearing. The focus of the hearing was to be on the respondents in the Supreme Court challenge, in particular announced presidential election winner William Ruto and IEBC Charman Chebukati. Senior advocate Fred Ngatia pleaded with the court to not nullify the presidential results as this would be setting a bad precedent for future candidates. His reason stemmed from the fact that if the Court allowed the nullification then it would encourage a “sore loser” behavior amongst candidates. He stated there were no errors in the elections and that it was time for Kenya to move on from this. Another, lawyer, Githu Muigai, went on to attack the petitioners’ submission that said that the elections were irretrievably flawed. He wondered if the petitioners only complained when they lost. “In this court, there are no less than three Governors addressing you, elected under this election. There are no less than four Senators and Members of Parliament elected under this election” the senior counsel submitted.

We also had IEBC lawyer Mahat Somane who basically said that Azimio had no proper evidence to justify the nullification of the presidential results. He stated that Azimio candidate Raila Odinga’s claim that IEBC server was hacked is impossible since they have security features to ensure that does not happen. Mahat further added that Raila needs to get over his lose and move on. However, in the midst of his submission, confusion arose when he said that the IEBC portal had been accessed by 300 million voters, which is impossible since our population number is approximately 54 million. This was said when he was trying to demonstrate how strong the IEBC portal was. “Our system is so good because it’s based on blockchain. It actually gives resources as required. If the 50 million Kenyans logged in to our portal, it will give them, without stuttering, any form they want and it will allocate resources based on how many people. Out of those 380 million people, 300 million were Kenyans who downloaded, who looked at the result,” he said. There are those who came to his defense and said that maybe he meant the portal was accessed 300 million times, while others simply did not trust what he was saying after that.

Attorney General (AG) Paul Kihara also made a statement in court condemning Chebukati for tarnishing the image of the National Security Advisory Commission (NSAC). This is because Chebukati had stated that he had been threatened by NSAC to alter the election results. The AG clarified that the reason why NSAC reached out to Chebukati was due to security concerns that had arisen due to the long wait in relation to presidential results and the incidences of people being caught trying to rig them, which were causing tension to rise amongst Kenyans. Paul Kihara further questioned if indeed NSAC had intimidated Chebukati and his two fellow commissioners, how come the other two commissioners have remained silent on the matter? The two other commissioners have not even attempted to file a complaint and have so secluded themselves from the case that most people have even forgotten their involvement in the matter. Paul Kihara went on to ask the court to clarify whether tallying and verifying was the sole responsibility of the IEBC chairperson.

As the hearing came to an end the judges had various questions for the respondents. Justice William Ouko asked whether there were voters who despite being given 6 ballot papers for different candidate positions, only voted for the president, ignoring other ballot papers for positions such as the Governor or even the Member of Parliament. If indeed there were such cases he requested that IEBC to provide a tally of such cases per county. He was also curious to know what IEBC thought of Omtatah’s petition that stated that 1.6 million were streamed in hours after voting had closed. Justice Isaac Leonala asked Chebukati to explain why he was in such a rush to announce the presidential results while he had one more day left for the tally. He wondered why Chebukati did not even attempt to reach a consensus with his fellow commissioners or to address the issue of the 27 constituencies that were not tallied. These were questions that had bothered many Kenyans and they were glad to see their issues being raised. Justice Leonala went on to request lawyer Mahat to explain to the court at what point KIEMS kit converted the results from JPEG to pdf. This is a question that arose after it was discovered the electoral results in the IEBC portal were all in pdf format and yet they were supposed to be in JPEG format.

Justice Njoki Ndungu also asked a couple of questions. She directed two questions to Prof. Githu Muigai. The first one concerned the definition of the IEBC, since he seemed to have multiple definitions. She then asked him to explain why is it that he supports the supremacy of the IEBC chairperson and yet when he was Constitution of Kenya review commission (CKRC) as a constitution drafter he had agreed that commissioners were made independent to avoid one person having unlimited power. She was therefore wondering how was it that Kenya now had an all-powerful IEBC chairperson? Moreover, she was curious if all the power was indeed vested in the IEBC chairperson, what would happen if he declared wrong electoral results, fell ill or died during a general election. She further questioned what the role of the other commissioners were during the declaration of results.

Njoki Ndung'u: Prof. Muigai you sat on CKRC. Drafters of the constitution introduced independent commissions to deal with authoritarianism & do away with issues of one person having power. From the narrative in court, there appears to be an all powerful chair. #SupremePetition pic.twitter.com/E7qB4jD6bW

— KTN News (@KTNNewsKE) September 1, 2022

Justice Smokin Wanjala questioned the oversight roles that the commissioners were given. He wondered what their powers to oversee entailed if they could not even be allowed to tally and verify results. He wondered at what point does the chairperson disengage from being a commissioner to being a chair with all these powers. He further asked that if indeed NSAC visited Bomas [the election count center] to influence the results would it then be safe to assume that they had already been aware of the results? Wanjala went on to ask how come IEBC had stated that there was no infiltration of the server, but then later on backtracked and said that the Venezuelans had accessed the server in order to perform maintenance. Justice Smokin was curious to know what exactly that maintenance entailed.

Justice Mohamed Ibrahim wanted to know whether the respondents still wanted the court to make a determination in regards to the chaos that erupted at Bomas despite them not mentioning it in any of their submissions or providing any evidence that the agents for the Azimio party were responsible. Justice Philomena Mwilu condemned IEBC for stating certain disparities occurred due to the absence of agents. She passionately stated that the burden of ensuring free, fair, credible and verifiable elections is on the IEBC, not the agents. This statement struck a chord with many Kenyans.

The court hearing ended with Chief Justice(CJ) Martha Koome, who asked Chebukati to explain why assigned small tasks to the commissioners while leaving the core business to the CEO. This was a question that had been put earlier by Justice Njoki Ndungu who wanted an explanation as to when the CEO who is not vetted by parliament became more powerful than the commissioners. The CJ further asked why IEBC stopped live streaming the results once they were down to the infamous 27 constituencies and also asked lawyer Mahat to demonstrate how the form 34As were photoshopped.

The Supreme Court hearings are scheduled to conclude Friday.