From: Judy Miriga

Good People,

IEBC is accused to be opaque and it seems they are applying the same on the flow of the Court. They seem to be blocking supportive affidavit of the same petition. The affidavit of petitioners given is understood to be explaining in answer to questions that arose on the flow where the petitioner is forced to provide more information to be understood. Additional information of facts arising therefore is also not a crime Oraro explains to Ngatia and that does not mean that the affidavit is a new case petition. Oraro contributions does not seem to have contradicted Rules for engagement, it is observed.

Ms. Kilonzo offers determination that IEBC contravened constitution and law but is being obstracted by Ahmednasir to be opening a floodgate, and interjects that if one wants to open a floodgate then let it be open wide…….and a Judge on the bench with a statement that time-frame is of essence dismissing the matter to be discussed by the Counsel Although all top representatives were served with Ms. Kilonzos notice………….Wow…..!!! CJ Justice politely demands that Ms. Kilonzo present her case tomorrow.

This case is a public matter, CJ Mutunga keeps reminding the Counsel…..

Ruling will be delivered tomorrow on this matter.

Judy Miriga
Diaspora Spokesperson
Executive Director
Confederation Council Foundation for Africa Inc.,
USA
http://socioeconomicforum50.blogspot.com

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— On Mon, 3/25/13, Eric W. Mburi wrote:
Summary

The Cord response can be summarized into the following:

a) Inaccurate transfer and inflating of votes from Form 34 to Form 36:

CORD provides numerous examples of how the number of votes entered in IEBC Form 34 was changed when entered into Form 36. For example, in Mogongo Primary School polling station in North Mugirango Constituency the original Form 34 figure of 3 votes for Uhuru was entered as 236, an additional difference of 233 votes; Lemelepo Water Project polling station in Kajiado North Constituency shows that while Form 34 originally indicated 2740 for Mr Kenyatta, this figure increased by 264 votes to a total of 3004 in Form 36.

CORD also cites similar examples from Garsen, Igembe Central, Chuka Igambang’ombe, Manyatta, Ol Jorok, Mukurweini, Kabete, Kapseret, Tinderet, Tiaty, Kajiado North, Chepalungu, Konoin, Luanda, Funyula among others.

b) Inflating of votes for Uhuru Kenyatta in form 36 in the Final Tally:

An affidavit sworn by ODM executive officer Janet Ongera also presents cases where the Form 36 entries were further altered to inflate Uhuru Kenyatta’s votes in the final national tally announced by IEBC at Bomas of Kenya.

Quoting examples from Kisauni, Tigania East, South Imenti, Runyenjes, Mavoko, Othaya Nyeri Town, Kiharu, Lari, Kajiado West, Lurambi, Hamisi, Mr Elgon

Webuye West, Seme, North Mugirango among others, CORD exposes a “scheme of inflation” of Uhuru’s votes in the figures announced in Bomas.

Among quoted examples is Lari Constituency where results entered at the Constituency tallying centre and the ones announced in Bomas show an increase of 1,367 for Uhuru Kenyatta. South Imenti is shown to have announced 62,481 at the Constituency’s Form 36 and 63,271 at Bomas National tally giving Uhuru Kenyatta 790 additional votes.

In Kisauni, Uhuru Kenyatta gained an additional 528 votes. While Form 36 indicates 10,366, IEBC’s final tally at Bomas indicates 10,894. In Mt Elgon, Uhuru gained an extra 500 votes (Form 36 shows 28,786 while the Final Tally shows 29,286).

c) Reduction of Raila Odinga’s Votes

Raila Odinga’s votes were also reduced in Form 36 logs (Constituency results) in spite of Form 34 (Polling Station Results) indicating he had a higher number of Votes. Examples are attached from 38 constituencies where Raila Odinga’s results at the polling stations (Form 34) were tampered with and reduced when the final constituency results were lodged into Form 36.

The 38 constituencies include Kisauni, Bura, Matayos, Tigania West, South Imenti, Manyatta, Runyenjes, Kitui, Makueni, Mathira, Juja, Nyeri Town, Turkana Central, Samburu, Aldai, Tiati, Baringo Central, Laikipia West, Laikipia East, Kajiado North, Chepalungu, Mumias East, Shinyalu, Luanda, Emuhaya, Sirisia, Webuye West, Tongaren, North Mugirango, Othaya, Roysambu among others.

d) Use of Electronic Voting

In his reply, Odinga also states that

i. the use of technology in the elections was intended to act as a check and control system and its failure affected the results fundamentally.

ii. that the explanations given by the IEBC downplaying the failure of the system and its effect on the elections “takes the common intellect of the people of Kenya for granted”

iii. that the IEBC explanations about the failure of the system are not factual

Mr Odinga also has attached a sworn affidavit from an ICT expert whose testimony shows that the Kencall Relationship with IEBC and TNA compromised data management.

a) Kencall EPZ used a single IP address 196.1.26.40 for both the IEBC and Uhuru’s Kenyatta’s TNA. In its evidence CORD says Nicholas Alexander Nissbit (A Kencall Director) does not deny the fact that both the IEBC and TNA were hosted and operated on a single IP address as has been claimed by CORD. They also will provide proof that Kencall EPZ Limited, in reality was a call centre that was used as a gateway that linked the First Respondent’s database titled African Focus and accessed through the following web address or URL https://www.intranet.kencall/apps/iebc and The National Alliance (TNA) database known as Market Race CRM and accessed through the web address or URL https://www.intranet.kencall/apps/tna.

b) The IEBC by agreeing to this arrangement compromised the elections on the basis of requirements for a an impartial, neutral, transparent, efficient, accurate, accountable and verifiable manner.

e. IEBC System Failure Explanation – NOT FACTUAL

a) Claims made by the IEBC have no basis whatsoever as regards to alleged failure of the technology according to CORD’s expert witness affidavits. One expert describes the IEBC claim that the server failed as “entirely preposterous”.

b) CORD’s Spanish expert’s affidavit describes as either “pure fiction” or “entirely inconceivable” IEBC’s claim that the batteries of the hand held devises used at the polling stations for bio metric identification of voters either failed or were not charged or could not hold charge for a sufficient period of time

c) The CORD experts’ affidavits will also present evidence to show that IEBC claims that the transmission system failed due to data overload has no basis in technology terms in this day and age.

d) CORD also questions IEBC claims that their officers has forgotten passwords does not make sense as there exist mechanism in place for password reminder which standard technology industry practice as seen worldwide on social network websites like Facebook.

e) CORD will also present a sworn affidavit by an International Technology expert who states “This system in my personal knowledge, has the capability to deliver up the election result within a period of around 4 hours with very negligible error”.

f. Voter Registrar:

The Petitioner also contends that:

i. IEBC has failed to present a closed register for the March 4th Elections.

ii. IEBC resolve that “a special register is to be generated and will be used to allow the voters to vote” but never presented any proof or minutes of a meeting where this special register was finally approved and when it was gazette.

iii. A questionable voters register cannot be a foundation of a free and fair election conducted in accordance with the law.

iv. IEBC own staff and figures show incidents where IEBC allowed votes that exceeded the number of registered. This latter category of incidents include; Lomerimeri polling station in Tiaty Constituency where the form 36 itself shows 68 registered voters against 163 valid votes cast; King’atua Primary School in Lari Constituency where the form 36 itself shows 319 registered voters against 762 valid votes cast; Boroon Primary School in Marakwet West Constituency where the form 36 itself shows 218 registered voters against 228 valid votes cast.

CORD petition through various documents finally seeks to show that President Elect Uhuru Kenyatta did not meet the 50 + 1 threshold, and the declaration by IEBC was the result of inaccurate tallying and unwarranted additional votes

Ja’kamburi
2013/3/25 Maurice Oduor
Salaaaaaale !!!! Mtume !!!!

Huyo Mkuu wa Sheria ingefaa asuhusishwe humo kabsa !!! The Attorney-General Githu Muigai is Uhuru Kenyatta’s cousin. He is only there to help Uhuru and not to be objective in the process.

Courage

Supreme Court orders retallying of presidential poll results in 22 polling stations

The Supreme Court on Monday ordered re-tallying of the presidential results in 22 polling stations using Forms 34 and 36 so as to determine the numbers of votes cast over number of registered voters.

The exercise will commence on Tuesday from 8am.

In the ruling, Justice Smokin Wanjala said the retallying would aim to show if the number over votes cast exceeds the number of registered voters.

Justice Wanjala also ordered that the results from the 22 polling stations be filed at the Supreme Court registry by Wednesday 4pm after re-tallying.

The court also ordered that all the representatives and agents from the petitioners and respondents in the recount process to take an oath.

The court also approved the application by the Attorney General to act as ‘a friend of the court’ in presidential petitions but dropped the Law Society of Kenya (LSK) application.

The judges also consolidated three petitions and allowed the Cord petition to take lead.

Early in the day in his opening remarks, Chief Justice Willy Mutunga said the judges will be objective in its ruling on the petition.

“We as judges are servants of the law. We shall be objective,” he said.

“Supreme court to remain objective. Public should trust us to do our job. Justice should manifest to be done,” he added.

Dr Mutunga also urged Kenyans to accept the final decision that will be arrived at by the Supreme Court and move on.

“Whatever decision emerges from this petition, we must march forward,” he said.

While addressing the court, Attorney General Githu Muigai sought to be enjoined in the petition as amicus curiae or a friend of the court.

“We can only be enjoined in the case on the discretion of the Court,” said AG Muigai.

However, Mr Odinga has filed an objection to the Attorney General joining the presidential petition.

AG Muigai also argues that his appearance in petition is not to support any party but to lay down law as it is with authorities from across the globe.

“The AG’s role is to elucidate on legal issues, not to support any side,” he said.

However, IEBC boss Issack Hassan’s lawyer Ahmednassir Abdullahi said his client had no objection with the appearance of AG in the petition.

However, IEBC boss Issack Hassan’s lawyer Ahmednassir Abdullahi said his client had no objection with the appearance of AG in the petition.

Lawyers Katwa Kigen and Fred Ngatia also have no objection to AG being enjoined in the petition.

Notably, lawyer Kethi Kilonzo for Africog argued that issues before court do not require an interpretation of the law to warrant inclusion of the AG.

However, Cord’s lawyer George Oraro argued that the AG has applied to be enjoined without request from the court or any party.

“The AG has misinterpreted circumstances under which he can apply to be enjoined in cases before court,” he said.

“An election petition is not a civil proceeding. The government is not defined in the Constitution but state is defined,” he added.

Mr Oraro argued that in relation to this petition the AG can be enjoined by the Constitution to to assist the IEBC.

However, AG Muigai disagreed with Mr Oraro and argued that the petition was a civil matter.

AG Muigai argued that as amicus curiae, his office will not impose views on the court hearing Cord’s petition against President-elect Uhuru Kenyatta.

“I have not advised the president-elect, contrary to claims by lawyer George Oraro,” he said.

Lawyer A.B Shah also lodged an application for the Law Society of Kenya (LSK) to be enjoined in the petitions before the Supreme Court as amicus curiae.

However, LSK faced opposition on its application to be enjoined as amicus curiae in presidential petitions by parties before Supreme Court.

Mr Oraro opposed the inclusion of the LSK in petition arguing that the society is partisan.

Lawyer Fred Ngatia representing Jubilee Coalition also opposed inclusion of LSK as amicus curiae the society was an observer in the General Election.

Mr Ngatia also argued that LSK is on record ‘supporting a petitioner.’

During the submission, political activist Nazlin Umar disrupted court proceedings for several minutes at the Supreme Court as she attempted to address judges over an application she had filed.

Ms Umar said as the “Wanjiku’s” lawyer, she was disappointed that her application has been ignored.

However, Dr Mutunga said that the Supreme Court will not hear or deal with any petitions, requests or submissions that were done past the allowed time.

Petition consolidation

During the submissions, Jubilee’s lawyer Mr Ngatia argued that a couple of preliminary issues had to be addressed before the hearing of the petition.

Also, AG Muigai advised the court to give the parties involved time to come up with a conclusive mechanism of what may be required for progress.

Mr Ngatia argued that the petition by Cord only raised one issue.

“The court should consolidate all the petitions and marry all the related issues raised by petitioners and respondents,” he said.

Lawyer Njoroge Regeru argued that the petitions consolidation were sensible and will lead to arguable case and speedy resolution.

Africog’s Counsel Keth Kilonzo also argued that matters of fact and matters of law should be consolidated to allow a reasonable suit.

However, Mr Oraro said the consolidation of the cases including respondent number three may not hold.

Mr Ngatia noted that petitions 4 and 5 had similar issues, contest and engagement and thus could be consolidated.

Lawyer Ahmednassir Abdullahi also argued that petition number 5 bore more weight than 3 and 4 and should be given preference.

Petition mutations

Mr Ahmednasir also asked the court to give directions on the type of petitions to be followed.

Mr Ahmednasir argued that his client, Mr Issack Hassan was concerned with continued mutation of the presidential petitions, hence, affecting its expediency.

Mr Ngatia also requested the court to give guidance on the petitions to avoid the mutations.

“There’s new evidence being introduced and this means the defence teams must be given time to respondents to all affidavits,” he said.

“There are 122 new electoral areas that are being introduced by the petitioner which bears grave consequences on time,” he added.

However, Mr Oraro argued that it is within the provisions of law to file new evidence as the hearing continues.

On his side, lawyer Harun Ndubi argued that the introduction of affidavits is important at any point.

The judges, led by Dr Mutunga, could either dismiss the petition, order a re-count of the presidential votes, settle on a re-run, or rule that the whole process begins afresh with the registration of voters.

The actual hearings of the petition are expected to start on Thursday and could continue un-interrupted until concluded.

Apart from the petition filed by Cord’s presidential candidate Mr Raila Odinga challenging the declaration of Jubilee’s candidate Mr Uhuru Kenyatta as winner of the presidential election, there is another filed by a civil society group, the African Centre for Open Governance (Africog).

Also before the court is a petition filed by some members of Mr Kenyatta’s campaign team, social media activists Dennis Itumbi and Moses Kuria and a third person, challenging the inclusion of spoilt ballots in the calculation of votes attained by each candidate.

The objections raised by Mr Kenyatta and Deputy President-elect Mr William Ruto, the Independent Electoral and Boundaries Commission (IEBC) and its chairman Issack Hassan, will also be narrowed down to what will be argued verbally in court.