The lawyers representing Azimio la Umoja presidential candidate Raila Odinga made their submissions before the Supreme Court on the first day of the presidential election petition hearing.
Raila's lawyers go after Chebukati in Supreme Court petition
Summary of key issues Raila Odinga's lawyers brought out on the first day of the presidential election petition hearing
According to the rules of engagement set by the court, the five lawyers had an opportunity to argue their case for three hours.
First to address the court was Senior Counsel James Orengo who prosecuted the division within the Independent Electoral and Boundaries Commission.
“We have a commission that is divided right in the middle, that speaks to a dysfunctional constitutional body that is not capable of presiding over an election,” Orengo said.
He added that, unlike many elections, the August 9, 2022 election featured deceit, and manipulation, arguing that the results announced were premeditated, and made possible by the attack on the IT structure and system of the electoral commission.
He also pointed out the differences between the voter turnout announced by IEBC Chair Wafula Chebukati immediately after the elections and the number recorded in the final results.
He also held that the announcement of the presidential election result was based on a wrong computation of the total number of votes cast.
On her part, Julie Soweto told the court that in some copies of Forms 34A sampled, figures in Forms 34A were tampered with, and votes were deducted from Odinga and added to William Ruto.
She prosecuted that copies of 41 Forms 34A from Bomet, Kiambu and Kakamega given to agents differ from what is in the IEBC portal and those submitted at the National Tallying Centre at Bomas of Kenya.
She also accused the IEBC of vote suppression by postponing elections in areas perceived as Odinga’s strongholds and issuing faulty KIEMS kits to certain areas.
“Irene Massit in her affidavit says the IEBC CEO and chairman failed to ensure that due diligence was done on the procurement, proofreading and printing of ballot papers,” Julie Soweto said.
Lawyer Paul Mwangi argued that the requirement to declare the presidential election results does not give IEBC chairman Wafula Chebukati the power to tally, verify or even reach a decision of what to declare
He accused the chair of sidelining the other commissioners and treating them as subordinates.
“The power given to the IEBC Chairman to declare the results of an election does not give him any power to decide what that result will be,” the advocate said.
He also told the court that Chebukati had not made complaints against the four IEBC commissioners since they joined in September 2021, but there are complaints by other commissioners against him dating back to 2017.
Senior Counsel Philip Murgor told the court that IEBC's portal was hacked in order to manipulate the results of the presidential elections.
He claimed that there was a group of about 50 people in Karen who had access to IEBC ICT systems where they were intercepting results before uploading to the public portal.
“There were several generations of Form 34C yet it was only supposed to be generated once toward the end of the tallying. There is also evidence of backward tallying.
“A result for Ruto was being arrived at before the tally was in and each time work was being done to fit 34A and 34B in that result. Through confusion and error, the result was forced on Kenyans through a defective 34C where the commissioners failed to agree,” he said.
Senior Counsel Pheroze Nowrojee said Chebukati lied about the Elections Act giving him the power to postpone elections as a result of procurement issues such as errors in the printing of ballot papers.
He prosecuted the character and leadership of the IEBC chair whom he accused of mismanaging the elections.
"Ballot boxes are being stuffed with a highly sophisticated other writing form. It's not about political ambition, this is what happens when this chairman is left to do what he has carefully managed to do," the lawyer told the court.
"Chebukati lies with impunity and did not bother to seek consensus with fellow commissioners in the management of elections. We can’t rely on a single thing in his affidavit," the lawyer added.
"This is a practiced artist of the destruction of our institutions. He did it in 2017, he was caught. When the court ordered him (Chebukati) to disclose more, he disobeyed the order. Same person, same tricks. He has done this for two election cycles," he further stated.
He asked the court to direct that the person with the most vote to be declared President-elect and dismiss Wafula Chebukati as IEBC chair.
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