Raila gives 23 reasons against Chebukati tally

Azimio-One Kenya flagbearer Raila Odinga and running-mate Martha Karua yesterday officially filed a petition seeking to invalidate Wafula Chebukati’s declaration of William Ruto’s as President-Elect.

In their 72-page petition, the two are seeking 23 prayers, including an order for inspection of IEBC servers. They also want rejected and spoilt votes used in calculating whether any of the four candidates crossed the 50 per cent plus one vote threshold.

Raila and Karua also want the seven judges of the Supreme Court — led by Chief Justice Martha Koome — to order for a forensic audit of the machines used in the elections, as well as the electoral commission’s website and portal. They have also asked the judges to re-tally the presidential election results, including but not limited to Forms 34A, 34B and 34C that were used in the August 9 election.

In addition, they are seeking an order for the declaration of Ruto as president-elect to be invalidated and the IEBC be compelled to organise a fresh election in strict conformity with the Constitution and the Elections Act.

However, the fresh election should not be presided over by Chebukati, who they have alleged committed a raft of election illegalities and irregularities.

The two are also seeking an order to summon the Director of Criminal Investigations, George Kinoti, to produce statements, photographs, reports, equipment, laptops, phones and other gadgets, and any other material related to the conduct of the elections and found in possession of three Venezuelan citizens arrested at JKIA last month.

The three had been suspected of carrying election material. They were released after Chebukati said they were worked for one of IEBC’s suppliers.

In the wide-ranging petition, Raila and Karua further want Kinoti summoned and directed to produce laptop(s) allegedly retrieved and seized from one Koech Geofrey Kipngosos, an agent of UDA party. The DCI should also file a report on the forensic analysis and examination of the laptop(s) and the content there-in, they say.

Further, they seek to have the court overturn the election results declaring Ruto winner of the presidential election, arguing that IEBC and its chairman made the decision without tallying and verifying results from 27 constituencies. “That in complete and deliberate disregard of the separate and discrete role and functions of the IEBC and its chair, and in violation of Article 10(2)(a) and (c) of the Constitution, Chebukati proceeded to unilaterally declare the final results of the presidential election without tallying and verification by the IEBC of the results from 27 constituencies; and whose outcome or count has an effect on the final results and outcome of the presidential election,” the two Azimio leaders say in the papers they filed at the Supreme Court’s sub-registry at the Milimani Courts in Nairobi yesterday.

They further argue that the results declared by Chebukati were fraudulent and therefore invalid, null and void because Ruto did not meet the threshold of 50 per cent plus one of all votes cast.

“Most significantly, there was an elaborate and fraudulent premeditated scheme to interfere with and undermine and defeat the integrity, credibility and security of the presidential election in violation and or contravention of Article 86(a) and (e) and other provisions of the Constitution,” the petitioners say in the court documents.

Raila states that the final results declared by Chebukati were not complete, accurate, verifiable or accountable and this cannot be the basis for a valid and legitimate declaration of Ruto as winner of the State House race.

Chebukati had declared that Ruto garnered 7.1 million votes against Raila’s 6.9 million, a result that Raila has disputed, prompting him to go to court to reverse Ruto’s gazettement and stop his swearing in as president.

“At the time of declaring the final results of the presidential election, IEBC had not received, uploaded and made publicly available for scrutiny on the public IEBC portal, forms 34A in the 27 constituencies,” say the Azimio leaders in one of nine petitions filed to challenge the presidential election.

Azimio also argues that Chebukati, before declaring the final results, failed to state or claim that the results were provisional, thus contravening Section 39 of the Elections Act.

The duo also accuse the IEBC chairman of willfully refusing to share the final presidential results with the presidential candidates’ chief agents, observers, media and even fellow members of the commission before declaration of the final results.

“The final ‘results’ declared by Chebukati did not comply with the Constitution and the law and were, therefore illegal, invalid, null and void,” the Azimio leaders state in their court documents — which were delivered to the registry in a white truck.

A supporting affidavit filed by Karua said Azimio sought the court’s intervention on the grounds that, in the just concluded elections, Chebukati willfully subverted the sovereign will of the people of Kenya and overthrew the constitutional order by declaring Ruto the winner of the polls.

“An attempt to overthrow the Constitutional order and the sovereign will of the people of Kenya must be called out for what it is — treason. This is the import of Article 3(2) of the Constitution which states that an attempt to establish a government otherwise than in compliance with the Constitution is unlawful,” Karua stated.

In the petition, the two leaders have also enjoined four ‘rebel’ electoral commissioners as interested parties in the case. Commissioners Juliana Cherera, Francis Mathenge Wanderi, Justus Nyang’aya and Irene Cherono are named as interested parties, but not as respondents.

Having been enjoined as parties, it is wait-and-see on whether they will file affidavits in support of the Azimio petition. Yesterday, as Azimio was in court, all four commissioners attended a meeting the IEBC held at Bomas with candidates from areas where local polls were postponed due to a mix-up in ballot papers.

Raila and Karua arrived in court at 12:30pm, an hour and a half before the deadline for filing petitions. They were in the company of other Azimio leaders, including former vice president Kalonzo Musyoka, Agriculture CS Peter Munya and a host of lawyers, including former Director of Public Prosecution Philip Murgor.

They filed voluminous documentary documents as evidence to support their claims against Chebukati and the electoral commission.

By 1.40pm, registrar Bernard Kasavuli had verified and declared that the petition had officially been filed.

Lawyer James Orengo, while addressing the media outside the law courts termed the petition “a bombshell”. He said: “We’ve got so many smoking guns” .

He expressed confidence that based on the over 53 boxes of evidence and affidavits they had filed, the determination of the dispute will favour Raila because the circumstantial evidence could result in a re-run or re-tally of the votes.

“I think we have circumstances in which the court can actually re-tally,” Orengo said.