REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PRESIDENTIAL ELECTION PETITION NO. 1 OF 2017
H.E RAILA ODINGA……………………………………..……..1ST PETITIONER H.E STEPHEN KALONZO MUSYOKA…………...……….....2ND PETITIONER
AND
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION……………………...... 1ST RESPONDENT
THE CHAIRPERSON OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION………..2ND RESPONDENT
H.E UHURU KENYATTA……………………………………..3RD RESPONDENT
3RD RESPONDENT'S AFFIDAVIT IN REPLY TO THE AFFIDAVITS OF 1ST PETITIONER AND DR. NYANGASI ODUWO
I WINIFRED WACEKE GUCHU, a resident of Nairobi and of Post Office Box Number 38601- 00623, Nairobi make oath and state as follows;
1. I am the Executive Director of Jubilee Party (“JP “). I was the Deputy Chief Presidential Agent for JP’s Presidential team during the recently concluded 2017 general election for purposes of Regulation 57 of the Elections (General) Elections, 2012. I am thus competent to make this affidavit. I now produce a true copy of my appointment letter which is marked “WG 1”
2. I make this affidavit on the basis of matters within my own knowledge and as regards matters of law, on the basis of advice from counsel on record which advice I verily believe to be correct.
3. In the aforesaid elections, Jubilee nominated Uhuru Kenyatta and William Ruto as its Presidential and Deputy Presidential candidates respectively. (“JP candidates”).
RESULTS
4. On 11th August 2017, the 2nd Respondent announced that the JP candidates won the Presidential election contest on the basis of the following results, which were arrived at after the 1st and the 2nd Respondent had assured themselves that the results were accurate:
1 NAME VOTES PERCENTAGE JOHN EKURU LONGOGGY 27,311 0.18% AUKOT MOHAMED ABDUBA DIDA 38,093 0.25% SHAKHALAGA KHWA 11,705 0.08% JIRONGO JAPHETH KAVINGA KALUYU 16,482 0.11% UHURU KENYATTA 8,203, 290 54.27% MICHAEL WAINAINA 13,257 0.09% MWAURA
5. JP as a party also won a majority of positions in all the other five elections conducted on the same day. The following is a summary of the results in the 5 other elections for Gubernatorial , Senate, National Assembly, Women Representative and Members of County Assembly:
Kenya 2017 Presidential Vote Distribution
Presidential Election Votes
Uhuru Kenyatta 8,203,290 Raila Odinga 6,762,224 Joseph William Nthiga Nyagah 42,259 Mohamed Abduba Dida 38,093 John Ekuru Longoggy Aukot 27,311 Japheth Kavinga Kaluyu 16,482 Michael Wainaina Mwaura 13,257 Shakhalaga Khwa Jirongo 11,705
2017 Number of Governors by Party Number of Governors per Party
Jubilee Party 25 ODM 13 WDM-K 2 Independent 2 FORD-K 2 NARC 1 MCCP 1 KANU 1 0 5 10 15 20 25 30
2 Kenya 2017 Number of Senators by Party Senators
JUBILEE PARTY 25 ODM 13 WDM-K 2 KANU 2 ANC 2 PDR 1 FORD KENYA 1 CCU 1
0 5 10 15 20 25 30
Kenya 2017 Number of Woman Representatives by Party
Woman Representatives
JUBILEE PARTY 25 ODM 11 WDM-K 3 KANU 2 PDR 1 MCCP 1 INDEPENDENT 1 FORD KENYA 1 EFP 1 ANC 1
0 5 10 15 20 25 30
3 Kenya 2017 Number of Members of National Assembly by Party Number of Members of National Assembly by Party
JP 140 ODM 61 WDM-K 19 IND 13 ANC 12 KANU 8 FK 5 FORD-KENYA 5 EFP 4 MCCP 3 PDR 3 CCM 2 KNC 2 KPP 2 PDP 2 0DM 1 CCU 1 DP 1 FAP 1 MUUNGANO 1 NAPK 1 ND 1 PNU 1 0 20 40 60 80 100 120 140 160
4 Kenya 2017 Number of Members of County Assemblies by Party
Number of MCAs per Party
Jubilee Party 582 ODM 338 IND 105 WDM-K 87 FK 51 ANC 47 Kanu 38 PNU 27 MCCP 22 EFP 15 PDR 14 CCM 12 NARC 10 MUUNGANO 10 NARC-K 9 KPP 8 PPOK 7 PDP 6 UDP 5 FAP 5 LPK 4 KADU 4 DP 4 NARC-KENYA 3 KSC 3 SDP 2 PTP 2 PICK 2 PDU 2 NVP 2 ND 2 MGPK 2 KNC 2 FPK 2 DC 2 CCU 2 SAFINA 1 RBK 1 PPK 1 NARC 1 KADU-ASILI 1 DPK 1 DDA 1 AGANO 1 0 100 200 300 400 500 600 700
6. The difference between the votes cast in favour of JP’s candidates and those cast in favour of the Petitioners, at the date the results were declared, is 1,441,066. The said difference is very significant and emphatically demonstrates the resolve of the people of Kenya to exercise their free and sovereign will.
5 7. According to observers of Kenya’s political landscape, voter registration patterns prior to the election and several polls indicated that JP enjoyed significant support in Rift Valley, Upper Eastern region, parts of Nyanza and Western Kenya, North Eastern Kenya, increased support in Coast , Nairobi and in Central Kenya accounting for a potential voter base of 7, 500, 000 while NASA had firm support in parts of Nyanza, parts of Western, parts of Coast and in lower Eastern region, accounting for a potential voter base of 6,000,000. The ultimate results are therefore not surprising.
8. The Petitioners have not presented any or any credible evidence and/or material that would invoke the jurisdiction of this honourable to disturb the sovereign will of the people of Kenya exercised so emphatically on 8th August 2017.
CONDUCT OF ELECTION IN CONTEXT OF ARTICLES 81 TO 91 of THE CONSTITUTION OF KENYA
9. I have nevertheless now read the Petition and Supporting Affidavits filed by the Petitioners to challenge the validity of the election held on 8th August 2017and indeed the entire electoral process. I make this affidavit in response and in opposition thereto and in particular the affidavit of Dr. Nyangasi Oduwo.
10. Having perused the Petition and the supporting affidavits filed with it, it is clear to me that the Petition is loosely structured around four (4) broad pillars, all erected on a foundation of quicksand. The said pillars are as follows:
i) That the results declared on 11th August 2017 are invalid on account of irregularities and numerical errors the Petitioners allege they have found in Form 34A and Form 34B;
ii) That the 2nd Respondent had no legal basis for declaring results while approximately 11,000 Form 34A’s had not been transmitted electronically which the Petitioners contend was the exclusive statutory mode of transmitting results;
iii) That the Presidential Election was marred and significantly compromised by intimidation and improper influence or corruption contrary to Articles 81(e) (ii) of the Constitution as read together with the Elections Act and Regulations 3 and 6 of the Electoral Code of Conduct;
iv) That the Presidential Election was so badly conducted, administered and managed by the 1st Respondent as to contravene and violate Articles 38, 81 and 86 of the Constitution of Kenya as read together with section 44 of the Elections Act; 11. It is immediately clear to me that the Petitioner has gone to very great lengths to exaggerate facts, peddle outright falsehoods and suppress material facts in a bid to mislead this Honourable Court and thereby obtain an unjust advantage to
6 the prejudice and subversion of the will of the Kenyan people expressed in a free, fair and credible election.
12. I have actively participated in all aspects of the electoral process either directly or through agents of JP. I can unequivocally state that in my view the 1st Respondent and its staff, including the 2nd Respondent, have conducted the entire process with remarkable diligence, efficiency and in full fidelity to the standards established in the Constitution and all the electoral laws.
13. To my knowledge, the electoral process, as with all human endeavours, does encounter problems all over the world but the elections held on 8th August 2017 exceeded the statutory threshold for a credible election.
14. For clarity, I reject all the allegations, both specific and vague, set out in the Petition and in the affidavits filed in support thereof, regarding the misconduct and irregularities attributed to the 1st and 2nd Respondents.
15. The Petitioners dedicate a considerable portion of their Petition to attempting to demonstrate how hopelessly incompetent and inefficient the 1st Respondent is. Nothing could be further from the truth and the Petitioner’s anger at the Respondents must be viewed against the following facts and circumstances;
i. In 2013, the Petitioner participated in the Presidential election and was declared the runner up. He rejected the results on the basis, inter alia, that the 1st Respondent had “stolen” the election from him.
ii. His claims were rejected by this honourable court in a decision reported as Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR
iii. The Petitioner, with the assistance of surrogates affiliated to an umbrella NGO entity known as Africog, including Mr Maina Wachira and Mr Maina Kiai, immediately thereafter embarked on a project to undermine the judicial authority of this honourable court and the confidence Kenyans were developing in their constitutional and statutory institutions by making scathing attacks in local, regional and international media on the court , the 1st Respondent and any other institution or individual who had played any role in the election.
iv. The Petitioners also alleged, without any basis, that the election was in fact a military coup. They have repeated the same baseless claims again this year both before and after the elections including filing a court case against the Kenya Defence Forces.
v. In the intervening period, the 1st Petitioner has persisted in peddling, at every opportunity and forum, the false and untenable narrative that elections can only be considered free fair and credible in Kenya if he is declared the winner. I now produce several news articles, including an editorial by the Washington Post on 18th August 2017which are in a bundle marked “ WG2”
7 vi. Indeed, on 10th August 2017, even before the 1st Respondent had concluded the exercise of collating results from the 290 constituencies as required by law, the Petitioners agents, through a letter of the same date addressed to the 2nd Respondent, asserted that he was in possession of what his agents called “the actual presidential election results contained in the IEBC database” which indicated that he had won the election having garnered 8,041, 726 votes against 7,755,428 votes for JP’s candidates.
vii. The aforesaid letter was also read out at a press conference televised to the nation and the world. The said letter and media briefing are produced at pages 180 to 184 of the bundle that contains Mr Godfrey Osotsi’s affidavit. viii. The Petitioners demand was a clear violation of the provisions of Article 2(2) of the Constitution of Kenya which states that: “No person may claim or exercise State authority except as authorised under this Constitution.”
ix. The 1st Petitioner had a day earlier, on 9th August 2017 , indicated that the results for the entire 2017 general election, including all the other positions ( namely gubernatorial , senate, national assembly , women representative and member of county assembly) had been irreversibly prejudiced by a hack into the results transmission system of the 2nd Respondent. The 1st Petitioner’s press statement to the effect has been produced at pages 172 to 178 of the bundle that contains Mr Godfrey Osotsi’s affidavit.
x. I am aware, from discussions I have held with colleagues in NASA, that the 1st Petitioner tried to coerce candidates nominated by NASA affiliate parties for the gubernatorial, senate, national assembly, women representative and member of county assembly positions to reject their elective posts in solidarity with the Petitioners and so as strengthen the false narrative that the election had been hacked but nearly all refused to do so.
xi. The Petitioners now appear to have abandoned some of the aforesaid outrageous and outlandish allegations and have in lieu thereof directed their attention to a new mutated allegation set out at Paragraph 14 of the Petition, again false, that the Presidential Election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the Presidential Election.
xii. I therefore intend, in the next section of this affidavit, to demonstrate why the 2017 election is the most efficient, accountable, accurate and credible election Kenya has conducted to date.
Complaint NO 1: Non-Compliance with Electoral Law by 1st and 2nd Respondents
16. During the 7 months or so that the 1st Respondent’s Commissioners have been in office, the 1st Respondent has outdone itself in establishing and overseeing the creation of a very solid statutory and legal framework for the conduct of free, fair and credible elections.
8 17. It is my firm observation that the 1st Respondent has scrupulously complied with all statutory requirements within the limits of human capacity. The following are some examples:
a. In early 2016, the Petitioners and their coalition partners launched an unprecedented series of sustained and incessant attacks on the 1st Respondent, its Commissioners and staff with the intention of creating and sustaining the false narrative that the 1st Respondent was either unprepared, partisan or incompetent.
b. The attacks on the 1st Respondent were accompanied by demonstrations led, coordinated and financed by the Petitioners and their coalition of political parties, at the time known as CORD, which ultimately turned extremely violent and deadly and led to several court cases including the case reported as Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others [2016] eKLR wherein the learned judge stated as follows at paragraph 52 of the judgement: “The Petitioners however stand in better stead when they urge that the 9th Respondent (INSPECTOR GENERAL OF POLICE) be ordered to ensure the security, public safety and observance of the law. There is evidence before me that the protest marches and demonstrations organized by the 5th Respondent (COALITION FOR REFORMS AND DEMOCRACY COALITION FOR REFORMS AND DEMOCRACY) always commence peacefully but later become violent and riotous: see the affidavits sworn in support of the motion by the Petitioners.”
c. As a result of the aforesaid demonstrations, political parties were forced to initiate a bipartisan effort to address the grievances put forward by CORD. On the 5th July, 2016, the senate and the National Assembly, respectively, approved a motion that established a Joint Parliamentary Select Committee on matters relating to the Independent Electoral and Boundaries Commission and the conduct of elections in Kenya.
d. The mandate of the committee was inter alia to recommend legal, policy and institutional reforms to strengthen the Independent Electoral and Boundaries Commission and improve the electoral system and processes to ensure the August 2017 elections are free and fair and are administered in an impartial, efficient, simple, accurate, verifiable, secure, accountable and transparent manner.
e. The committee produced a report which included 3 draft bills of which amendments to the Elections Act were effected by the Election Laws (Amendment) Act, 2016 which became operational on 4th October, 2016.
f. On 16th January 2017, Parliament enacted Section 44A of the Elections Act through the Election Laws (Amendment) Act, 2017.
g. Subsequent thereto, the 1st Respondent, after complying with the provisions of Section 109 of the Elections Act and the Statutory
9 Instruments Act, 2013, published the following regulations which were reviewed by the Legal affairs Committee of the National assembly and debated by the full house on 29th and 30th March 2017 and on 4th, 5th and 6th April 2017:
i. Elections (Registration of voters) Regulations; ii. Elections (Voter education) Regulations; iii. Elections (General) Regulations; iv. Elections (Parliamentary and county elections) Petitions Rules, 2017; v. Elections ( Technology ) Regulations, 2017; vi. The Elections (General) (Amendment) Regulations , 2017
h. In yet another unprecedented feature of election planning in Kenya, political parties , several citizens and NASA, either directly or through surrogates including Maina Kiai , Africog , Katiba Institute , George Kegoro , John Githongo and Gladwell Otieno filed over 40 cases, exclusive of the over 400 cases related to party primaries, in courts all over the country and at all levels seeking adjudication of disputes or declaratory orders attacking numerous sections of the Elections Act and other provisions of the various statutes that regulate the planning of elections.
i. On average, between December 2016 and July 2017, the 1st Respondent was forced to divert critical resources, time and manpower to defending at least 6 court cases per month.
18. The following are brief particulars of the said cases:
A. Petition No. 399 of 2016, Mugambi Imanyara and Another v AC & 3 others
Subject: Constitutionality of Sections 2, 6, 7, 8 and 14 of the Election Laws (Amendment) Act 2016. Vide a judgment delivered on 16th of February 2017, the petition was dismissed. The Petitioner’s sought to file a Notice of Appeal
B. Petition No. 56 of 2017, Council of Governors v Attorney General and Another
Subject: Constitutionality of Section 28 of the Election Act, 2011 as amended by Section 10 of the Election Laws (Amendment) Act, 2017. This was the law regulating and or baring party hopping. Vide a judgment delivered on 26th of April 2017, the Petition was dismissed,
C. Petition No. 179 of 2017, Maendeleo Chap Chap Party
Subject: Challenging Section 10 of the Elections (Amendment) Act, 2017 prohibiting aspirants from party hopping 120 days from the date of the General election. The Attorney General Raised a preliminary objection that the matter was res judicata. The petition was dismissed.
10 D. Petition NO 371 of 2016, Center for Rights Education and awareness & 2 others v The Speaker of the National Assembly.
Subject: Dealt with the issue of the two thirds Gender principle in parliament. The petition was allowed and parliament was given 60 days within which to enact the two third gender rule. Both the National Assembly and the Senate have filed notices of appeal.
E. Petition No. 401 of 2016, Wilbert Kipsang and the Attorney General.
Subject: Dealt with the issue of the two third gender principle in parliament. The matter was raising similar issues with Petition no. 371 of 2016. The matter was stood over generally by dint of the judgment in 371 of 2017 above. The petition is mute.
F. Petition no. 162 of 2017, Apollo Mboya versus Attorney General.
Subject: seeking a declaration that the government delivery portal violates Section 14 of the Election Offences Act which bars the Government from advertising its achievements during the election period. The matter came up on 4th of May. Jubilee Party successfully opposed the grant of the interim orders.
G. Malindi Petition NO. 12 of 2017, Angaza Empowerment v IEBC & A.G
Subject: where the Petitioners were challenging the Constitutionality of the Gazette notice issued by IEBC setting the calendar for party nominations. The petitioners obtained ex-parte orders extending the deadline for political parties. The matter was marked as settled by consent of the parties.
H. Court of Appeal NO. 105 of 2017, Maina Kiai and 2 others v IEBC and Another.
Subject: seeking a declaration that the announcement of presidential results at the constituency level is final. The Court of Appeal vide its judgment delivered on 23rd of June 2017 uphold the high court decision and declared to the extent that Section 39(2) and (3) of the Elections Act and Regulations 87(2) provides that presidential election results declared by the Constituency returning officer are provisional. It is contrary to the Constitution and therefore are null and void.
I. Petition NO. 576 of 2015 (consolidated with Petition NO. 148 of 2016) , Andrew Kiplimo Sang Muge & others v the IEBC and another.
Sought a declaration that there exists a conflict between Article 177(1) & Article 177(4) of the Constitution on the term of MCA’s. Judgment was delivered on 27th of April 2017. The Petition was allowed to the extent that the term of the MCA’s ends on 3rd of March 2018. The AG filed a notice of Appeal.
J. Kericho Petition No. 1 of 2017 as consolidated with Kericho Petition NO. 2 of 2017, Eric Cheruyiot and another.
11 Challenging the Constitutionality of the law requiring public servants to resign six months before elections. The petition was allowed. The Respondents sought to appeal the said decision.
K. Petition NO. 7 of 2017, Dr Samuel Thinguri Warwathe v Mary Mungai, Commissioner for Co-operative Development and 2 others.
Issue concerned public servants to resign six months before election. The matter was consolidated with Kericho Petition NO. 1 of 2017 (above).
L. Nairobi Petition NO. 219 of 2016, Katiba Instutute and Another V AG & Parliament.
Challenging the Constitutionality of Part IV of the Elections Act and Part IV of the County Government Act on the procedure for recalling an MP and MCA.
M. Petition NO. 60 of 2017, Shadrack Kinyanjui Wambui v IEBC & 2 others.
Issue concerned the voting rights of prisoners to be extended beyond the presidential elections to include members of the County Assembly, Members of Parliament and governors. Judgment was delivered on 31st of July 2017. The petition was dismissed. The legal notice no 73 of 2017 issued by IEBC rendered the entire petition moot.
N. Petition No. 142 of 2017, Okiya Omtata v Attorney General.
Challenging the constitutionality of Chapter Six working group on election preparedness. The matter is still pending in Court. O. Petition No. 68 of 2017, Okiya Omtata v Jubilee Party & 2 others
Challenging the requirement of clearance documentation of political candidates. The matter is still pending in court.
P. Petition No. 47 of 2015, Okiya Omtata v IEBC and 2 others
Dealt with the registration of voters. Constitutionality of Section 3 of the Election Laws (Amendment) Act 2016 on the voter registration documents and voter registration deadlines.
Q. Civil Appeal no 105 of 2017, IEBC versus CORD & another.
On the issue of the tender in respect of the supply and delivery of IEBC Ballot papers. The judgment was delivered in favour of the the ex-parte applicant at the High Court. The Court of Appeal upheld the decision of the High Court nullifying the award of the tender to Al Ghurair in a decision delivered on 9th of June 2017.
12 R. Petition NO. 489 of 2016, Jared Juma v IEBC and another
Criteria on the mode used for shortlisting of Applicants for the IEBC Commission. Judgment was delivered on 9th December 2016 in favour of the Petitioner.
S. Petition No. 71 of 2017, Kenya Diaspora Alliance.
Seeking a declaration that Respondents have violated the rights of Kenyan Citizens in the diaspora by failing to register them as voters.
T. Petition NO. 47 of 2017,
Seeks a declaration that birth certificates and expired passports are valid documents for registration. Section 3 of the Election Laws (amendment) Act no 36 of 2016 is unconstitutional and also sought a declaration that a s singe database of all citizens should be used to transact all affairs of citizens.
U. Petition NO. 161 of 2016, Okiya Omtata
Challenges the Constitutionality of Section 22(1)(b) of the Elections Act introducing the education eligibility requirement for elective posts.
V. Petition No. 16 of 2017, Bado Mapambano Trust
Seeks a mandatory order to quash election laws (amendment) act of public participation in the National assembly. Declarations that Section 44A of the Elections Act violates Article 86 of the Constitution, Section provides for complementary mechanism for voter identification.
W. Judicial Review No. 378 of 2017, National Super Alliance Seeking an order of certiorari to quash the decision of IEBC made on 29th of May 2017 awarding the tender for the printing of election materials for the presidential elections. Judgment delivered on 7th of July 2017. Application allowed.
X. Judicial Review Case no. 648 of 2017, CORD versus IEBC
Challenging the award of the tender to Al Ghurair for printing of the ballot papers.
Y. Petition no168 of 2017, Maina Kiai and others V IEBC
Challenging the importation of the electronic voter identification evids and alleged breach of Section 44(1) (2) & (4) of the Elections Act & Legal notice No. 78 of 15th of July 20015 on public participation. Judgment delivered on 14th of July 2017. Petition dismissed for reasons that IEBC satisfied the requirement for public participation.
Z. Judicial Review Case no 447 of 2017, Gladwell Otieno v IEBC
13 Seeking orders of mandamus to compel the IEBC to release the register of voters for public inspection and gazette the final register of voters. IEBC directed to avail the register of voters of all polling stations for inspection by the public in the web portal or by any other means pursuant to Section 6(1) and (2) of the Elections Act and regulations. Judgment delivered on 3rd of August 2017. Order made directed to IEBC to publish in the media a confirmation that the register of voters is open for inspection.
AA. Judicial Review Case no 153 of 2017, Japheth Muroko v IEBC and KPMG
BB. Judicial Review No. 647 of 2016, CORD v AG & National Assembly,
Proceedings seeking to halt debate in parliament regarding Section 44A of the Elections Act. Petition dismissed.
CC. Civil Appeal No. 224 of 2017, IEBC versus NASA
Judgment of the High Court set aside to the extent that public participation is not a mandatory requirement in public procurement. Judgment delivered on 20th of July 2017.
DD. Civil Appeal No 63 of 2017, AL Ghurair Printing & Publishing v CORD Challenging the execution of the contract as executed by the CEO of IEBC in the absence of the Chairman and commissioners which decision was quashed by the High Court. Appeal dismissed vide a judgment delivered on 26th of April 2017. Judgment of the High Court upheld.
EE. Petition no 241 of 2017, Cecil James Oyugi v IEBC & another,
Proceedings seeking to challenge the review of the tendering process, the subject of adjudication of JR 637 of 2016. Petition dismissed vide a judgment delivered on 13th of May 2017.
FF. Petition no 9 of 2017, Tutus Alila & 2 others v IEBC
Petition sought for orders compelling the IEBC to declare presidential results within 7 hours of closure of polling stations. The petition was dismissed.
GG. Petition No. 373 of 2017, NASA v Defence Forces
Challenging the possible deployment of the Kenya Defence Forces (KDF) in conjunction with other national security agencies before or during the 8th August 2017, General Elections. Mention on 22nd September 2017.
HH. Petition NO. 388 of 2017, Africog v IEBC & others
14 Proceedings challenging the alleged failure by IEBC to respond to the Petitioner’s request dated 31st of July 2017 for information in accordance to Article 35 of the Constitution seeking members of the public to be allowed within 400 meters radius within the polling stations. Petition dismissed vide judgment delivered on 7th August 2017.
19. Articles 10, 38, 81 and 86 of the Constitution enjoin the 1st Respondent to conduct elections that are free, fair, secure, and transparent, devoid of discrimination, with full participation of the public and other stakeholders and in a manner that is simple, verifiable and accountable.
20. The said principles have all been adhered to by the 1st Respondent, in that the 1st Respondent did the following:
a. Oversaw the successful increase of polling stations from approximately 31,000 in 2013 to 40, 883 in 2017. This represents a 32% increase in polling stations. This led to better access to polling stations by voters and reduced congestion in polling stations.
b. Counting , tallying and announcements of results in polling stations was therefore more efficient and accurate.
c. Updated the voter register, in electronic form, and led a voter registration exercise that pushed the number of registered voters from 14,352,545 voters in 2013 to 19,611,423 in 2017. This represents a 36.6% increase in the number of voters.
d. Approximately 15.3 million Kenyans turned out to exercise their sovereign right to vote on 8th August 2017 representing an 80% turnout rate.
e. Procured the services of a professional audit firm, KPMG, which successfully undertook, for the first time in Kenya’s electoral history, a thorough audit of the voters register which established that the voters register did not contain the names 2 million voters as the Petitioners had claimed following the 2013 elections.
f. Following the said voter register audit, the 1st Respondent made the entire voters register available for public scrutiny on its website. As a result, accuracy of the voters register was exceptional. Consequently, unlike in 2013, there were no allegations of multiple voter registers made against the 1st Respondent.
g. In an unprecedented transparency initiative and following 5 separate protracted cases regarding procurement of ballot papers at the Public Procurement Administrative Board, the High Court and at the Court of Appeal, the 1st Respondent made arrangements for representatives of the presidential candidates, members of the local and international
15 media and observers to travel to Dubai to assure themselves of the integrity of the process. h. Successfully procured and implemented the integrated electronic electoral system (known as KIEMS) that was used in the following aspects of the electoral process:
i. biometric voter registration, ii. biometric voter identification and iii. Electronic result transmission system. i. The use of KIEMS was largely successful due to early procurement, deployment and training of staff on its use. To avoid the failure of the system as happened in 2013, the 1st Respondent ensured the batteries for the devises were adequately charged well in advance. j. Presided over the procurement and distribution of election materials for the largest number of candidates in Kenya’s history including 45,000 KIEMS kits. k. Recruited and trained 362, 858 election officials drawn from all corners of Kenya and in accordance with the values and principles of civil service set out at Article 232(1) (i) of the Constitution of Kenya. , from a pool of 982, 381 applications, to conduct the elections. l. Successfully processed the nomination of 14,552 political party and independent candidates, the highest number of candidates to contest in any election in Kenya. Jubilee presented the largest number of candidates followed by ODM and Maendeleo Chap Chap which was supporting Jubilees Presidential candidates. The number of candidates presented by the 3 parties is as follows:
i. Jubilee - 1801 ii. ODM - 1289 iii. Chap Chap - 911
m. The introduction of the KIEMS system enhanced the integrity of the electoral process as the configuration of the KIEMS kit eliminated opportunities for electoral fraud. n. Held three separate sessions at Safari Park Hotel, Lillian Towers and at KICC for political parties, the media, election observers and the public to demonstrate how the KIEMS kits were expected to work on Election Day regarding voter identification and results transmission. o. For example, the kits were configured to reject any recording of votes in excess of the number of registered voters, and ballot stuffing by extension, in any polling station.
16 p. In addition, due to some of the amendments made to the electoral laws, the maximum number of voters per stream was standardized at 700 which led to a very significant improvement in the voting process, vote counting and announcement of results. q. Engaged in meetings and other initiatives with Kenyan security personnel to ensure there is adequate security during the entire electoral process including the election date itself. r. Convened a National Elections Conference for over 1000 stakeholders, including the Petitioners representatives, between 12th and 14th June 2017 at the Kenyatta International Conference Centre to discuss preparations for the elections. s. Conducted extensive voter education programmes through all forms of media including seminars, village meetings, posters, newspaper advertisements, digital campaigns on Facebook, Twitter and the Internet, television and radio advertisements, mobile phones and through other fora. Some of the aforesaid material is still readily available at the 1st Respondent’s website, www.iebc.or.ke , its Facebook book page and its twitter handle. t. Released an Elections Agent manual to assist political parties and independent agents to train their agents. u. Prior to its disbandment by the High Court, convened the Elections Technology Advisory Committee whose role was to advise the 1st Respondent on the adoption and implementation of election technology. v. Among the technological innovations introduced by the 1st Respondent pursuant to the provisions of Article 83(3) of the Constitution of Kenya was a Short Message Service (SMS) application that allowed voters to verify their registration status and particulars. w. Published and supervised the execution of an electoral code of conduct as required by section 110 of the Elections Act. The said code has been extremely helpful, at least until the election was held, in ensuring the elections were held in a civil and pacific environment. x. Held proceedings to enforce the electoral code of conduct. Several candidates were censured which helped keep the campaign period generally peaceful in most areas. y. The 1st Respondent provided adequate and well organized facilities at the County and, Constituency and National Tallying centres for political party and independent candidates. z. Kept the public and other stakeholders fully updated and informed regarding all aspects of preparation for the General Election. I now produce a bundle of some of the many notices published by the 1st
17 Respondent on its website and in the daily print media which is, marked “WG3 “ aa. Indeed, the Petitioners concede that the 1st Respondent was very forthcoming with information, assurances and whatever clarification their respective political parties sought over a wide range of issues that covered practically every aspect of the elections. bb. Some of the extensive correspondence exchanged between the 1st Respondent and NASA is produced at pages 1 to 87, inclusive, of the bundle of documents bound together with the affidavit of Godfrey Osotsi and again at pages 180 to 202 of the same bundle of documents. cc. Accredited numerous local and international observers, agents and media representation as required by section 42 of the Elections Act. dd. Published guidelines and a Code of Ethics for election observers. ee. Convened a tribunal with guidelines for dispute resolution mechanisms to deal with settlement of disputes arising out of political party nominations as required by Article 88(4) (e) of the Constitution, Section 74 of the Elections Act. ff. The said tribunal and the Political Parties Tribunal handled well over 370 cases within a span of one month and sat to hear disputes late into the night and on weekends. gg. Caused printing of ballot papers and procured election materials for over 40,883 polling stations despite the short period left to the 1st Respondent following amendments to electoral laws early this year, and numerous court cases which disrupted the electoral process preparation calendar. hh. For the first time in Kenya’s history, ballot papers for all six elections were printed with pictures of all candidates which enhanced the exercise of voters rights under Articles 38, 81, 83 and 86 of the Constitution of Kenya. ii. Improved an extremely useful and resourceful website, Facebook page and twitter handle which contain all the information required to satisfy the transparency requirements under Articles 10, 81 and 86 of the Constitution. jj. Facilitated the Political Parties Liaison Committee which was a forum established to give voice to political parties and their candidates, during the electoral processes so as to minimise unnecessary misunderstanding. kk. As a tool of transparency and accountability, the 1st Respondent, put up a call centre facility to receive and respond to any concerns raised by voters and other stakeholders. The call centre, at the National Elections
18 Center at Bomas of Kenya, had 70 attendants working in shifts round the clock. Over 10,000 calls were received during before, during and after the General Election. The following are some of the enquiries the call centre dealt with:
Before Elections Confirmation of registration status Arrival of election materials Questions about the voting process Questions about required documents for identification Incident reporting During Elections Reports of delays in opening of polling stations Reports of KIEMS technology failures Reports of slow queues and unruly conduct
After Elections Questions about results on TV and via the public portal Questions about the tallying process Why presidential results are given preference over other results
21. The 1st Respondent’s conduct of the election held on 8th August 2017 must also be assessed in the context of the following facts:
a. As with the 2013 elections, the fact that 6 elections were held on one day required double the material, including ballot boxes and ballot papers, compared to the material required for previous elections.
b. For only the second time in Kenya’s history, portions of the electoral process were conducted through electronic means including voter registration, which was carried out entirely by the Biometric Voter Registration System (BVR).
c. This was the second election conducted under the Constitution of Kenya, 2010.
d. Significant delays in the enactment of electoral laws by parliament, which was compounded by several late stage amendments to such laws with the attendant consequence that the 1st Respondents schedule of executing the efficient conduct of the elections was disrupted.
22. I have always been and remain a firm and passionate believer in Kenyan institutions, some imperfections notwithstanding, and in the sovereign right of the Kenyan people to reform and improve such institutions without disparaging them in the manner the Petitioners perennially do.
23. The 1st Respondent has, in my view, acquitted itself very well under very difficult circumstances and is to be commended and not vilified.
19
Electronic Results Transmission System
24. The Petitioners and the various deponents of affidavits place great emphasis, albeit mistakenly, on the results that were being transmitted and being streamed in at a public electronic display in Bomas of Kenya and on an online public portal: https://public.rts.iebc.or.ke/enr/index.html#/Kenya_Elections_Presidential/1.
25. It bears repeating that the Constitution of Kenya does not impose any duty on the 1st Respondent to exclusively use electronic systems to transmit results. The requirement is for the 1st Respondent to ensure that at every election, whatever method is used, the system is simple, accurate, verifiable, accountable and transparent.
26. Further, Section 44A of the Elections Act grants the 1st Respondent a statutory discretion to the use of a complementary mechanism where technology either fails entirely, fails to work properly or does not meet the aforesaid Constitutional threshold of a system that is simple, accurate, verifiable, accountable and transparent.
27. I now proceed to set out the manner in which the law contemplated the electoral process should be conducted and that the said statutory requirements were indeed complied with.
28. Voting in Kenya is done by casting a paper ballot. All 15.3 million Kenyans who voted cast a paper ballot for each of the 6 elections held that day.
29. Upon conclusion of voting, the ballots were counted in the room where voting took place pursuant to the provisions of Regulation 76 of the Election (General) Regulations.
30. The counting, which was undertaken manually, took place in the presence of all agents , observers, police officers and other people duly authorized pursuant to the provisions of Regulation 74 of the Elections (General) Regulations and because this happened quite early after close of the polls, in most cases all agents were available.
31. The Petitioners had an added advantage as the NASA coalition comprises of 5 political parties who were competing among themselves and were entitled to extra agents for the other elective positions.
32. Indeed, according to ELOG, an observer group which deployed one of the largest observer delegates during the recently concluded elections, the Petitioners had very good representation of agents. A report prepared by the aforesaid ELOG, a true copy of which is annexed hereto and marked “ WG 4” states as follows at the relevant passage of the report:
20
“On the closing and counting process, our findings indicated as follows: . An ODM, WIPER, ANC or Ford Kenya party agent (representing the NASA coalition) were present in 84% of all the polling stations. In stations where they were present, the NASA agent signed the declaration of results for the presidential elections in 93.8% of these polling stations (as compared to 94.9% in 2013).
. For the closing and counting process, a Jubilee party agent was present in 92.3% of all the polling stations. In stations where they were present, the Jubilee agent signed the declaration of results for the presidential elections in 95.8% of these polling stations as compared to 95.6% in 2013).
. Agents for independent candidates were present in 78.7% of all the polling stations. In stations where they were present, the agent signed the declaration of results for the presidential elections in 88.7% of these polling stations.
. In 86.5% of the polling stations, a copy of the Presidential Results Form (From 34 A) was publicly affixed outside (as compared to 89% in 2013).”
33. Nevertheless, Regulations 62(3) and 79(6) of the Elections (General) Regulations make it clear that the non-attendance or refusal by an agent to sign Form 34A does not in itself invalidate the results announced. The said regulations state as follows:
“Regulation 62(3) The absence of agents shall not invalidate the proceedings at a polling station.
Regulation 79 (6) The refusal or failure of a candidate or an agent to sign a declaration form under sub-regulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under sub-regulation (2)(a).
Regulation 79(7) The absence of a candidate or an agent at the signing of a declaration form or the announcement of results under sub-regulation (2) shall not by itself invalidate the results announced.”
34. Once the counting was completed for each position, the presiding officer announced the result, and the agents present and the presiding officer signed the statutory Form and gave a copy to all agents present. For the Presidential poll, this was Form 34A.
35. As an added measure of transparency and by virtue of the provisions of Regulation 79(2A)(a) of the Elections( General ) Regulations , a copy of form 34 was affixed at the public entrance to the polling station or at any place that
21 was convenient and accessible to the public at the polling station. I note that Dr Oduwo has not complained in any of his affidavits that this requirement was not fulfilled nor have any of the observers or media houses.
Streamed results
36. By virtue of the provisions of Section 39(1C) of the Elections Act and Regulation 82 of the Elections (General) Regulations, once the process of counting at the polling station was concluded, the results were simultaneously sent electronically to the constituency tallying centre and to the national tallying centre.
37. The aforesaid Regulation 82 states as follows:
“Provisional results to be transmitted electronically (1) The presiding officer shall, before ferrying the actual results of the election to the returning officer at the tallying venue, submit to the returning officer the results in electronic form, in such manner as the Commission may direct. (2) The results submitted under sub-regulation (1) shall be provisional and subject to confirmation after the procedure described in regulation 76.”
38. These were the results streaming into the public portal at the Bomas of Kenya and whose streaming the Petitioners attempted to stop on 9th and 10th August 2017 at various press conferences, meetings with the 1st Respondent and through the correspondence attached at pages 172 to 184 of the bundle of documents attached to the affidavit of Godfrey Osotsi.
39. As the 2nd Respondent kept emphasizing during the regular press updates he gave between 9th and 11th August 2017, the streamed results were not the ones used to declare the winner of the election, which by virtue of the decision of the court of appeal reported at Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] eKLR had been conclusively tallied, collated and announced at all 290 constituencies.
40. There was therefore no legal requirement in the law obliging the 1st Respondent to avail Form 34A to any of the presidential candidates for verification which was the basis of the streamed result to be on the electronic portal. The reasons are fairly straight forward as follows:
a. The role of the 2nd Respondent at the National Tallying Centre was limited to collating the results recorded in the 290 Form 34B’s.
b. The role of the 2nd Respondent , according to the Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] eKLR was proscribed in terms that , and I quote: “It cannot be denied that the Chairperson of the appellant has
22 a significant constitutional role under Sub-Article (10) of Article 138 as the authority with the ultimate mandate of making the declaration that brings to finality the presidential election process. Of course before he makes that declaration his role is to accurately tally all the results exactly as received from the 290 returning officers country-wide, without adding, subtracting, multiplying or dividing any number contained in the two forms from the constituency tallying center. If any verification or confirmation is anticipated, it has to relate only to confirmation and verification that the candidate to be declared elected president has met the threshold set under Article 138(4), by receiving more than half of all the votes cast in that election; and at least twenty- five per cent of the votes cast in each of more than half of the counties.”
41. I have however noted that several of the 1st Petitioner’s supporting affidavits , in particular the 2nd Affidavit of Godfrey Osotsi, and the 1st Petitioner’s supporting affidavit , at paragraph 13 , takes the position, erroneously as I will demonstrate shortly, that :
a. The 1st Respondent was under a mandatory statutory duty to transmit results exclusively by electronic means.
b. By the time the results were declared, the 1st Respondent had only received 29, 000 form 34A’s electronically, leaving a balance of 11,883.
c. On account of (ii) above, the 2nd Respondent had no legal basis for declaring the results even if he received the remaining 11, 883 form 34A’s manually on account of the legal interpretation regarding exclusive electronic transmission of results favored by the 1st Petitioner.
42. The 1st Petitioner’s insistence on this position is a deliberately deceitful. The facts are as follows.
43. The 1st Respondent does not have telecommunication network facilities of its own, as yet. The 1st Respondent must therefore rely on duly licensed telecommunication service providers to provide the service.
44. By virtue of the provisions of Regulation 20 of the Elections (Technology) Regulations, 2017, telecommunication network service providers are under an obligation to provide and deliver services as may be requested by the 1st Respondent.
45. As technology is susceptible to failure, sabotage or human error , Regulation 24 of the Elections (Technology) Regulations, 2017 states as follows:
“Operations continuity plan and testing
(1) The Commission shall establish an operations continuity plan, deleting both operational and technical processes, procedures and tools. (2) The operations continuity plan established under sub regulation (1) shall provide mitigation and contingency measures, including
23 preparedness, prevention, response and recovery measures for potential failures of technology.”
46. The term “potential failures in technology”, for purposes of the transmission of results, includes lack of or poor network coverage. In light of the key, albeit non - exclusive, role technology was to play in the 2017 general elections, the 1st Respondent , in consultation with telecommunication service providers, was required by the provisions of Regulation 21 of the Election ( Technology) Regulations , 2017 to identify and communicate, in a timely manner, to all stakeholders the network service available at different polling stations and in areas where there is no telecommunication network, inform the stakeholders and publish this information.
47. As an added measure of necessary pre-caution, on 16th January 2017 parliament enacted Section 44A of the Elections Act through the Election Laws (Amendment) Act, 2017. The said section states as follows:
“Notwithstanding the provisions of section 39 and section 44, the Commission shall put in place a complementary mechanism for identification of voters and transmission of election results that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.”
48. Pursuant thereto, on 21st April 2017, the 1st Respondent issued The Elections (General) (Amendment) Regulations, 2017 by which it put in place the complimentary system contemplated by Section 44A. The said regulations were published vide Legal Notice Number 72 contained in a special issue of Supplement Number 65 of the Kenya Gazette.
49. The Coalition for Reform and Democracy (CORD), the Coalition that nominated the Petitioners to contest the presidency in 2013 and which has now morphed into NASA, strenuously objected to the said enactment and indeed filed several suits including Judicial Review Miscellaneous Application no 657 of 2016 to stop parliament from debating the said enactment.
50. On 30th June 2017, NASA filed Constitutional Petition no. 328 of 2017 wherein it sought the following orders:
i) Firstly, for a declaration that the respondent should have developed the complementary mechanism within 60 days before the 2017 general elections.
ii) Secondly, for a declaration that the respondent has failed to do so within the prescribed period as envisaged by section 44A of the Act.
iii) Thirdly, the petitioner craves for a declaration that the identification of voters and transmission of results for the election to be held on 8th August 2017 be exclusively electronic.
24 51. At the said hearing, Jubilee presented the court with compelling reports from all over world to demonstrate the absolute necessity for a paper backed electronic system including the following:
i) A true copy of a report titled Case Study Report on Electronic Voting in the Netherlands by Ben Goldsmith and Holly Ruthrauff. The report is marked ‘’ WG 5’’.
ii) A true copy of a report titled Federal Efforts to Improve Security and Reliability of Electronic Voting Systems Are Under Way, but Key Activities need to be completed, published by United States Government Accountability Office on September, 2005. The report is marked ‘’ WG 6’’.
iii) A true copy of a report entitled “Why machines are bad at counting votes” published on 30th April, 2009 by the Guardian Newspaper of the United Kingdom. The report is marked ‘’ WG 7’’. In one particularly blunt passage to be found at page 180 of the report, the author of the report states as follows:
“It's commonly said that insanity is doing the same thing over and over again while expecting different results. Yet this is what we keep doing with electronic voting machines - find flaws and try again. It should therefore have been no surprise when, at the end of March, California's secretary of state's office of voting system technology assessment decertified older voting systems from Diebold's Premier Election Solutions division. The reason: a security flaw that erased 197 votes in the Humboldt county precinct in last November's presidential election.”
iv) A true copy of a report entitled Hagai Bar-EL on Security, why secure e- voting is so hard to get, published on 22nd July, 2015 by Hagai Bar-EL marked ‘’WG 8.’’. In the following passage at page 5 of the report, the authors state that:
“The main concern with electronic voting as a concept is not the security of the system, as it is the verifiability of the system. The vote collection and counting process is so critical to democracy that it cannot depend on the goodwill and skills of the DRE voting machines vendor employees. If the public cannot ascertain that the logic of vote collection and counting indeed works as advertised, then there is absolutely no reason for the public to agree to cast the fate of democracy on this opaque device. The paper ballot system we use today is dumb and simple, but this mechanical simplicity is what allows visibility to anyone who cares to inspect the process.”
v) A true copy of a report entitled Ex-MI6 boss warns over electronic voting risk, published by the British Broadcasting Corporation (BBC) on 3rd January, 2017. The report is marked “WG 9”. The former head of the British Intelligence Agency, Sir John Sawyers, is reported to have stated as
25 follows: "Bizarrely the stubby pencil and piece of paper that you put your cross on in the ballot box is actually much more secure than anything which is electronic."
vi) A true copy of a report entitled “Voting, Vote Capture & Vote counting: Electronic Voting Best Practices” prepared following a Symposium convened by the Kennedy School of Government at Harvard University published in June 2004. The report is marked ‘’ WG 10’’. The report states as follows:
“A Hybrid Of Paper And Electronic Systems Provides An Effective Voting System.
No technology can solve every problem and mitigate every risk. Neither electronic nor paper ballots are a panacea. A hybrid of paper ballots and electronic systems can capture the benefits of each while avoiding the pitfalls inherent in relying on one or the other. The ideal system depends on the best attributes of each, and uses modular construction that allows for simple integration of the two parts. Of course, if badly implemented the combination of electronic systems and paper ballots can offer the problems of both, instead of benefits. An example of a hybrid is the Massachusetts optical scan system, which has paper ballots with electronic system to tabulate. Another alternative is paper ballots with electronic marking systems.”
52. In a judgment delivered on 21st July 2017 , a three judge bench of the High Court dismissed the said Petition and found, inter alia, that:
“54. It is clear from this judgment that when the electronic system fails there should be a fallback system to avoid the entire election falling into shambles. The complementary mechanism in Ghana closely mirrors our Regulations 69 and 83. This Ghanaian position is contained in the Manual on Election Adjudication in Ghana 3rd Edition (DPI Print Ltd, Accra, 2016). Chapter 10(c) and (d) of that manual deals with failure of the biometric system in presidential and parliamentary elections. 55. The German Federal Constitutional Court (Bundesverfassungsgericht) has had occasion to pronounce itself on electronic voting. In Judgment of the Second Senate of 3rd March 2009 [BVerfG] 2 BvC 3/07; 2 BvC 4/07, the Court found that even where electronic voting systems are deployed, the citizen should still be able to check and ascertain the results reliably without expert knowledge; and, that it was not possible for a voter to independently verify the integrity of the elections using the electronic system only………………………………………………………………… …….. 101. In view of the foregoing, we find that Regulations 69 and 83 of the Elections (General) Regulations 2012 have the full force of
26 law as they were approved by the Parliament which represents Kenyans.
102. The petitioner contended that in the absence of a credible complementary mechanism, the general elections should be postponed as provided in section 55B of the Elections Act. We disagree. We take judicial notice that Parliament has been dissolved. Secondly section 55B applies where an election date has been appointed but there is (a) likelihood of a serious breach of peace; (b) a natural disaster; or, (c) occurrence of an electoral malpractice of such nature and gravity as to make it impossible to proceed with the election. Thirdly and most importantly, the date for the general elections provided by Articles 101 and 136 of the Constitution is cast in stone.
103. The petitioner had also prayed for a declaration that the identification of voters and transmission of results for the election to be held on 8th August 2017 be exclusively electronic. We wish to emphasize again that every citizen has a right under articles 38(3), 81, 83(3) to be registered as a voter, to vote and to have every vote counted. The electronic system failed during the 2013 general election. We have already dealt with the question of reliability of technology from other jurisdictions. Technology can be susceptible to hackers, software bugs, badly trained frost workers or power outages which could intentionally or accidentally erase or alter voting data captured by the machines leading to failure.
104. Finally this Court has to consider the impact or consequences if the exclusive electronic system fails. It would throw the entire election into jeopardy and imperil our democracy. We therefore find that it would not be feasible to declare that the elections to be held on 8th August 2017 be exclusively electronic. 105. The upshot is that the entire petition is devoid of merit. It is hereby dismissed with costs to the respondent and the interested parties.”
I now produce a true copy of the said decision which is annexed hereto and marked “WG 11”
53. NASA was aggrieved by the said decision and immediately filed Civil Appeal No 258 of 2017 which was heard on 3rd August 2017, barely 5 days before the general election.
54. During the hearing of the said appeal, it emerged, from documents submitted by the 1st Respondent and admitted in evidence by consent of all parties, that though NASA had claimed it was not aware of any complementary system put in place by the 1st Respondent within the contemplation of Section 44A of the Elections Act, NASA’s leaders, including the Petitioners , had in fact written to the 1st Respondent in February 2017 enquiring what form the complementary system envisaged by Section 44A of the Elections Act would take.
27 55. A copy of the said Memorandum is attached at pages 190 to 211 of the documents bound together with Godfrey Osotsi’s 2nd Affidavit. NASA’s enquiry regarding the 1st Respondent’s interpretation of the words “complementary system “is at page 196.
56. In a response dated 28th February 2017 addressed to NASA’s leaders, again including the Petitioners, the 2nd Respondent , who had just been appointed through a rigorous bi-partisan process, informed NASA and its leaders that the complementary system contemplated by Section 44A of the Elections Act would be implemented through , inter alia, an amendment to Regulation 69 of draft Elections ( General) Regulations that the 1st Respondent was developing in consultation with stakeholders including NASA. A copy of the said letter is attached at pages 26 to 38 of the documents bound together with Godfrey Osotsi’s 2nd Affidavit.
57. On 4th August 2017, the Court of Appeal dismissed the said Appeal and reserved the delivery of reasons for its decision to 22nd September 2017. I now produce a true copy of the said judgment which is marked” WG 12”
58. The effect of the said decisions by the High Court and the Court of Appeal was that when the general election was held on 8th August 2017, Regulation 83 of the Elections (General) Regulations was the complementary system applicable in respect of transmission of results in the event technology failed or experienced difficulties that threatened to violate the provisions of chapter 7 of the Constitution of Kenya.
59. In the aforesaid cases, NASA was represented by the same advocates who now represent the Petitioners and their knowledge of the decisions of the High Court and the Court of Appeal must be imputed on the Petitioners. At any length, the two decisions received considerable coverage in the print and electronic media. The Petitioners cannot therefore feign ignorance of the fact, as they now purport to do rather deceitfully, that transmission of results was to be effected exclusively through electronic means.
60. This Petition is thus an abominable abuse of the process of this Honorable court, an attack and affront to the rule of law as contemplated by Article 10 of the Constitution of Kenya to the extent that the Petitioners seek to present a feigned issue for adjudication of this Honorable Court in a matter of such critical public importance.
61. On 6th August 2017, pursuant to the provisions of Regulation 21 of the Elections (Technology) Regulations, the 1st Respondent posted a list of approximately 11,000 polling stations without 3G coverage. Electronic transmission of results in this polling stations published in this list would be generally very poor and difficult at best and impossible in most areas.
62. Consequently, the complementary mechanism set out in Regulation 83 of the Elections (General) Regulations as confirmed by the High Court and the Court of Appeal. In essence, the said regulation provides a mechanism by which form 34A’s are physically delivered from polling stations to returning officers at
28 constituency level and by which constituency officers deliver form 34B’s to the National Tallying Centre in Nairobi.
63. The self-evident wisdom of this course of action is itself the product of the decision of this Honorable court in the decision of this court in the case of RAILA ODINGA & 5 OTHERS V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 OTHERS [2013] eKLR, wherein the Court at paragraph 233 of its judgment stated that –
“We take judicial notice that, as with technologies, so it is with electoral technology: it is rarely perfect, and those employing it must remain open to the coming of new and improved technologies. Analogy may be drawn with the traditional refereeing methods in football which, as their defects became apparent, were not altogether abandoned, but were complemented with television-monitoring, which enabled watchers to detect errors in the pitch which had occurred too fast for the referees and linesmen and linewomen to notice….
“But as regards the integrity of the election itself, what lawful course could IEBC have taken after the transmission technology failed" There was no option, in our opinion, but to revert to the manual electoral system, as was done…
“From case law, and from Kenyan’s electoral history, it is apparent that electronic technology has not provided perfect solution. Such technology has been inherently undependable, and its adoption and application has been only incremental, over time. It is not surprising that the applicable law has entrusted discretion to IEBC, on the application of such technology as may be found appropriate. Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process. This negates the Petitioner’s contention that, in the instant case, injustice, or illegality in the conduct of election would result, if IEBC did not consistently employ electronic technology. It follows that the Petitioner’s case, insofar as it attributes nullity to the Presidential election on grounds of failed technology devices, is not sustainable…”
64. In light of the aforesaid compelling facts and decisions of our courts, I am mystified and baffled beyond comprehension why the Petitioners, who falsely allege that the Respondents systems were hacked on 8th August 2017, still doggedly persist in arguing that electronic transmission of results is the only mode of transmitting results acceptable to them.
65. In essence, the orders now sought are an attempt by the Petitioners, post-facto, to procure through the back door what they Appellant failed to do in parliament, in the High court and in the Court of Appeal.
66. The Petitioners are cynically trying to retrospectively legislate NASA’s electoral agenda through this Honourable court and retrospectively apply that interpretation of the law to an election conducted under a very different regulatory and legal regime. They should not be allowed to do so.
29
Recording, Tallying and Declaration of results
67. As far as I am aware the process of recording votes, tallying and declaration of results was conducted and done in full and/or substantial compliance with the provisions of the Constitution and all electoral laws.
68. Further, to the best of my knowledge, based on reports by Jubilee party agents, observers and monitors and the 1st Respondent, the results announced on 11th August 2017 were indeed accurate and verifiable in accordance with the standards established by law and were announced in a transparent and lawful manner as contemplated by Article 86 of the Constitution, the Elections Act and the Elections (General) Regulations, 2012.
69. Nearly all local and international observers and monitors who were accredited by the 1st Respondent have issued preliminary reports stating that the election was free, fair and credible notwithstanding the minor irregularities and other logistical problems experienced during the election process.
70. The 1st Respondent has posted on its website and on a portal available to the public scanned copies of each and every Form 34A and B received at Bomas of Kenya by the 2nd Respondent which upon collation, demonstrates that the election results announced on 9th August 2017 were accurate, verifiable, transparent and lawful.
71. I nevertheless wish to state as follows in light of the numerous false and baseless allegations set out in the Affidavits sworn by Dr Nyangasi Oduwo alleging that Form 34a’s contain staggering and fatal irregularities. He has classified the alleged irregularities as follows:
a. Form 34A’s that allegedly do not bear the 2nd Respondents official stamp;
b. Forms 34As that allegedly have not been signed by the Presiding Officer and Deputy Presiding Officers
c. Results which allegedly do not tally mathematically;
d. Forms 34As that allegedly do not have names or the signature of the party agents, and without reasons therefor from the Presiding Officers;
e. Forms where the Presiding Officer allegedly signed for more than one polling station;
f. Forms 34As that were allegedly signed by ungazetted Presiding Officers;
g. Forms 34As that allegedly emanate from ungazetted Polling Stations;
h. Forms downloaded from the 1st Respondent’s portal that are allegedly unclear or illegible ,
30
72. My analysis, conducted with the help of a team of JP’s electoral tallying experts, has confirmed that in an overwhelming number of the cases cited by Dr Oduwo, the forms do not manifest the alleged irregularities he cites.
73. Though I have caused detailed reports to be compiled in response to each and every allegation made in Dr Oduwo’s affidavit regarding the aforesaid issues, I would nevertheless like to make the following observations:
a. Neither the Elections Act nor the Election (General) Regulations require that Form 34 A should bear the 1st Respondents stamp.
b. The failure of an agent to sign forms or attend his/her duties at the counting hall does not invalidate the results. Regulations 79(3), (4), (5) and (7) state as follows:
“(3) Where any candidate or agent refuses or otherwise fails to sign the declaration form, the candidate or agents shall be required to record the reasons for the refusal or failure to sign.
(4) Where a candidate or an agent refuses or fails to record the reasons for refusal or failure to sign the declaration form, the presiding officer shall record the fact of their refusal or failure to sign the declaration form.
(5) Where any candidate or agent of a candidate is absent, the presiding officer shall record the fact of their absence.
(6) The refusal or failure of a candidate or an agent to sign a declaration form under sub regulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under sub regulation (2)(a).
(7) The absence of a candidate or an agent at the signing of a declaration form or the announcement of results under sub regulation (2) shall not by itself invalidate the results announced.”
c. Dr Oduwo purports to make expert opinions on handwriting though he is not a forensic document examiner and prefaces his assertions on alleged similar handwriting with words phrases like “ the handwriting seems” or “ the handwriting appears to be the same”.
d. I am informed by the 3rd Respondent’s advocate on record, and I believe such advice to be correct, that Section 50 of the Evidence Act states as follows:
“Opinion as to handwriting
31
(1) When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is admissible.
(2) For the purposes of subsection (1) of this section, and without prejudice to any other means of determining the question, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him.” e. Dr Oduwo’s bare statements are thus of absolutely no probative value and are informed by confirmation bias rather than reality. f. I am also alive to the findings of this court in the case of RAILA ODINGA & 5 OTHERS V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 OTHERS [2013] eKLR to the effect that: “It is rightly argued by the Respondents, in our opinion, that the Court must be alive to the fact that most polling stations are in the rural areas, where the primary-school polling stations are dilapidated, and the supply of electricity, to-date, is a distant dream. Yet voters still go to such polling stations to exercise their right to vote, and to discharge their civic duty. Of this fact, the Court will take judicial notice, in deciding whether Presidential elections can be invalidated due to non-compliance with regulations requiring electronic transmission.” g. There are no significant numerical discrepancies between Form 34A and Form 34B. I now produce a report that demonstrates that after reconciling discrepancies in the forms attached to Dr Oduwo’s affidavit, the net effect is that the Petitioners tally improves by 595 votes while that of JP’s candidates decreases by 1199 votes. In the context of the margin of votes cast for the 3rd Respondent and those cast for the I now produce a true copy of detailed report, in both hard and soft copy, which is marked “WG 13.” h. An analysis of all 290 form 34B’s has revealed that, contrary to Dr Oduwo’s assertions in his affidavit, NASA agents signed the vast majority of the said forms which they were supplied with at Bomas of Kenya in my presence. I now produce a true copy of detailed report, in both hard and soft copy, which is marked “WG14 ” i. An overwhelming majority of the allegations set out at paragraphs 11 to 230 of Dr Oduwo’s are false and predicated on fictitious documents, erroneous and extravagantly creative interpretation of regulations, jaundiced opinions which Dr Oduwo is not competent to issue, outright
32 lies and a fixation with the role of electronic transmission of forms. I now produce a true copy of detailed report, in both hard and soft copy, which is marked “WG 15”
Rejected Votes
74. The Elections ( General ) Regulations define the terms “spoilt votes” and “ rejected votes” as follows:
Spoilt ballot paper A voter who has inadvertently dealt with his or her ballot paper in such a manner that it cannot be conveniently used as a ballot paper may, on delivering it to the presiding officer and providing to the satisfaction of such officer the fact of the inadvertence, obtain another ballot paper in the place of the ballot paper so delivered and the spoilt ballot paper shall be immediately cancelled and the counterfoil thereof marked accordingly.
Rejected ballot papers
(1) Every rejected ballot paper shall be marked with the word “rejected” by the presiding officer, and, if an objection is made by a candidate or an agent to the rejection, the presiding officer shall add the words “rejection objected to” and shall be treated as rejected for the purpose of the declaration of election results at the polling station.
(2) The presiding officer shall mark every ballot paper counted but whose validity has been disputed or questioned by a candidate or an agent with the word “disputed” but such ballot paper shall be treated as valid for the purpose of the declaration of election results at the polling station.
(2A) The presiding officer shall make a decision on the validity of the disputed ballot paper under sub regulation (2) and award it to a candidate and such decision shall be final.
(3) After the counting of votes is concluded, the presiding officer shall draw up a statement in Form 41 set out in the Schedule showing the number of rejected ballot papers under such of the following heads of rejection as may be applicable—
(a) want of security feature; (b) voting for more than one candidate; (c) writing or mark by which the voter might be identified; or (d) unmarked or void for uncertainty,
and any candidate, counting agent or observer shall, if he or she so desires, be allowed to copy that statement.
33 75. 34C, which is the statutory basis upon which the Presidential results were announced indicates that there were 81,685 rejected votes. I now produce a true copy of Form 34C obtained from the 1st Respondents website which is marked “WG 16 ”
76. The public portal on which the electronic results were posted however indicates that there were 403,495 rejected votes.
77. In light of this self-evident discrepancy i have undertaken a thorough analysis which helped me and my party explain where the discrepancy arose from.
78. My analysis has revealed that in 688 polling stations, accounting for 229, 869 out of 294,271 registered voters in the affected stations, the number of reported rejected votes is equal to the number of registered voters in those polling stations. I now produce a listing of the said polling stations which is marked “ WG 17”
79. The said stations are spread out all over the country, and it is clear that electoral officers , in what are obviously honest and/or genuine instances of mis-posting, inserted the registered number of voters in their respective polling stations in the field reserved for rejected votes in the KIEMS results transmission kits since the field or slot for registered voters was already pre-filled and incapable of manipulation as one of the fraud / ballot stuffing prevention innovations implemented in electoral planning this year.
80. The error was quite easy to make since the manual/paper form 34A has the number of registered voters in a polling station as the first slot an electoral officer fills into form 34A. The aforesaid 688 electoral officers, under pressure and some under less than ideal lighting conditions, clearly inserted the number of registered votes set out in the manual form 34A into the KIEMS kit slot reserved for rejected votes when transferring the results from the manual form into electronic an electronic document.
81. The official results were nevertheless declared on the basis of results collated from 290 form 34B’s which were themselves compiled from manual form34A’s which did not have this error having been transmitted as scanned copies of a manual document or delivered to the returning Officer’s at Constituency level physically. Thus, no prejudice was suffered by any candidate.
Nyando Constituency Results
82. Form 34C , which is the basis upon which the results were declared by the 2nd Respondent pursuant to the provisions of Regulation 87(3)(e) of Elections (General ) Regulations , does not include the results for Nyando constituency where the Petitioner had 60,715 votes against the 3rd Respondents 214 votes.
83. Dr Oduwo cites this as a fatal irregularity and an attempt to suppress the Petitioners final vote count. This is neither true nor founded in statute. Indeed, the opposite is true.
34 84. The proviso to Regulation 87 (3) states that: “Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner on the basis of Article 138(4) (a) (b) of the Constitution.”
85. As stated above, there were 15 180 819 valid votes cast in the presidential election. 60,715 votes , which the Petitioners received from Nyando, work out at 0.39% of the valid votes cast for the presidential election and would not have made a material difference within the contemplation of the proviso to Regulation 87(3) reproduced above in full. The 2nd Respondent was therefore within the four corners of the law when he declared the final result on 11th August 2017.
Alleged disparity between presidential votes and the other 5 elections
86. Dr Oduwo alleges, in his affidavit, that there is a large and suspicious disparity between the votes recorded for the presidential election and those of other elections and the gubernatorial election in particular.
87. Again, Dr Oduwo deliberately embellishes the facts in an attempt to secure an unjustified advantage for the 1st Petitioner. I now produce a report indicating areas where votes cast for the presidential election were less than other elections. The report is marked “WG 18”
88. A basic analysis of the results indicates that in 94 constituencies, scattered all over the country, voters cast more votes in one or more of the other 5 elections held on 8th August 2017 than in the presidential election. Details of the said constituencies and the election in which the presidential vote was not the highest are as follows:
Constituency Name Position
1 NYALI Governor 2 LIKONI Senator 3 MVITA Senator 4 MSAMBWENI Parliament 5 LUNGALUNGA Parliament 6 KINANGO Parliament 7 GANZE Parliament 8 BURA Parliament 9 LAMU EAST Parliament 10 LAMU WEST Parliament 11 WUNDANYI Parliament 12 VOI Senator 13 BALAMBALA Governor 14 FAFI Women Rep 15 WAJIR WEST Parliament 16 ELDAS Women Rep
35 17 MANDERA NORTH Senator 18 LAFEY Senator 19 NORTH HORR Women Rep 20 LAISAMIS Governor 21 IGEMBE SOUTH Senator 22 NORTH IMENTI Women Rep 23 KITUI EAST Parliament 24 KANGUNDO Parliament 25 MATUNGULU Women Rep 26 MBOONI Parliament 27 KILOME Parliament 28 MAKUENI Senator 29 KIBWEZI WEST Parliament 30 KIBWEZI EAST Senator 31 KINANGOP Parliament 32 OL KALOU Senator 33 TETU Women Rep 34 MATHIRA Parliament 35 OTHAYA Governor 36 MUKURWEINI Parliament 37 NYERI TOWN Parliament 38 KANGEMA Women Rep 39 KIHARU Governor 40 MARAGWA Parliament 41 JUJA Parliament 42 RUIRU Senator 43 KIAMBAA Governor 44 TURKANA CENTRAL Parliament 45 TURKANA SOUTH Parliament 46 TURKANA EAST Parliament 47 POKOT SOUTH Parliament 48 SAMBURU WEST Parliament 49 SAMBURU NORTH Parliament 50 SOY Parliament 51 MOIBEN Senator 52 AINABKOI Parliament 53 KESSES Parliament 54 LAIKIPIA NORTH Parliament 55 MOLO Parliament 56 GILGIL Senator 57 KURESOI NORTH Women Rep 58 NAKURU TOWN EAST Women Rep 59 KAJIADO NORTH Parliament 60 AINAMOI Governor 61 BELGUT Governor 62 SOTIK Parliament 63 LUGARI Parliament 64 LIKUYANI Senator 65 LURAMBI Parliament 66 MUMIAS WEST Parliament 67 BUTERE Parliament
36 68 SHINYALU Senator 69 IKOLOMANI Senator 70 EMUHAYA Parliament 71 WEBUYE EAST Governor 72 KIMILILI Women Rep 73 UGENYA Parliament 74 UGUNJA Parliament 75 GEM Parliament 76 KISUMU WEST Governor 77 SEME Parliament 78 RANGWE Parliament 79 SUBA SOUTH Parliament 80 RONGO Governor 81 AWENDO Senator 82 KURIA WEST Women Rep 83 KURIA EAST Parliament 84 BONCHARI Governor 85 SOUTH MUGIRANGO Parliament 86 BOBASI Parliament 87 NORTH MUGIRANGO Senator 88 BORABU Women Rep 89 DAGORETTI NORTH Parliament 90 RUARAKA Senator 91 EMBAKASI SOUTH Women Rep 92 EMBAKASI CENTRAL Parliament 93 EMBAKASI EAST Parliament 94 STAREHE Women Rep
11% STATIC MARGIN ALLEGATION
89. The 1st Petitioner and Dr Oduwo allege as soon the results starting streaming on the screen at Bomas of Kenya and on the public online portal referred to in paragraph…..above, the margin of votes between JP’s candidates and the Petitioners became static at 11% and remained thereat until the results were declared which he surmises to be evidence of a hacked system to which a mysterious algorithm was added to fraudulently deny the 1st Petitioner victory.
90. This allegation is false and evidence of either deceitful or sloppy and slovenly data analysis by Dr Oduwo. A basic analysis of results as they streamed in indicates that the gap between the two candidates in percentage terms varied widely from the beginning to the end. At 9.00 pm on 8th August, for example, the margin was 10.45%which moved to 11.25% at 4.00am on 9th August and 9.49% at 9:30 pm on 9th August. I now produce a report analysing the said margin which is marked “WG 19”
Undue Influence and intimidation allegation
91. It is untrue that the 3rd Respondent violated section 14 of the Election Offences Act through sponsoring or causing sponsorship of advertisement in printed
37 electronic media, business and billboards of the government achievements during the election period.
92. The allegations at paragraphs 233 to 240, inclusive, of Dr. Nyangasi Aduwo's affidavit are baseless and unfounded from the perspective of the Constitutional values that now guide our nation.
93. I believe that the allegations in the paragraphs set out above are addressed at the work of the President’s Delivery Unit (“PDU”). It is important that the role and operations of the PDU are properly understood.
94. I am advised by the 3rd Respondent's advocates on record which I verily believe to be true that there is no provision of the Constitution that requires ongoing government programs to be suspended during the election period.
95. The government exists to serve the people at all times and irrespective of whether a general election is imminent or not and Citizens are entitled to hold their government to account at all times.
96. The accountability of governments to their people is widely expected and the idea of setting up a delivery unit is one that is rapidly gaining ground across the world.
97. There are delivery units in mature democracies such as the United Kingdom and India as well as in developing countries such as Rwanda, Ethiopia and Liberia.
98. The rationale of a delivery unit is predicated on the Constitutional value and imperative of enhancing the accountability of a government to its citizens by making information relating to ongoing projects available to the public.
99. During the month of May, 2017 the Kenya PDU hosted the Africa Delivery Exchange and Tony Blair Institute for Global change where a delegation of six PDUs from across the region attended the event which was basically a learning forum for sharing experiences among the distinctive PDUs. A copy of the brochure is annexed to the affidavit sworn and filed herewith by Andrew Wakahiu.
100. The 3rd Respondent was first elected the President of Kenya in 2013.He was the candidate of the Jubilee Coalition made up of The National Alliance (TNA), the United Republican Party (URP), National Alliance Rainbow Coalition (NARC) and Republican Congress (RC).
101. The Shared Manifesto of the Jubilee Coalition had as one of its major objectives the transformation of Kenya.
102. The transformation was to be achieved through 3 pillars namely unity, growth of the economy and openness.
103. The Shared Manifesto stated as follows at page 63:
38 “The Coalition believes in a new brand of politics: one where the national interest is placed above personal gain or tribal advantage. We are committed to fostering an open, tolerant, forward looking Kenya with modern institutions that serve the people rather than narrow sectional interests. We are dedicated to implementing the new constitution quickly and effectively, as it is the paramount guarantor of the people's rights and freedoms. Besides, power must be decentralized from Nairobi to the 47 new counties, bringing it closer to the people so that they can hold those who take decisions about their day-to-day lives to account." 104. Accountability to the people of Kenya was therefore at the heart of the pledges made to the people of Kenya by the Jubilee Coalition.
105. By Executive Order number 11 of 9th March 2016, the Office of the Deputy Chief of Staff within the Executive Office of the President was created and several functional offices under that office namely:
(a) Secretary, President's Delivery Unit (b) Secretary, Office of Budget Management (c) Secretary, Office of Performance Management and Co-ordination (d) Secretary, State Corporation Oversight Office. A copy of the executive order is annexed to Andrew Wakahiu’s Affidavit filed herewith and marked "AW3".
106. One of the easiest ways of making information on government projects available is to have it on a web portal.
107. The portal is one of the tools the PDU uses to enhance accountability. The PDU in Kenya as in many other countries is an operation of the government irrespective of the party or coalition of parties in power.
108. The citizens are able to check the status of projects and to raise any issues they have and any person who accesses the information availed is able to challenge the government on any aspects of the project.
109. I am aware that prior to the setting up of the web portal members of the general public and the media made numerous efforts to acquire information from the various state departments of the Government of Kenya especially on all ongoing projects undertaken from April, 2013 onwards after the launch of the Jubilee Coalition manifesto which outlined the coalition's vision, pledges and agenda from 2013 to 2017.
110. Once PDU set up the web portal, it was necessary to sensitize Kenyans on its existence and the PDU did this by way of, inter alia, advertisements through the electronic and print media.
39 111. The purpose of setting up the president's delivery unit and specifically the delivery portal was to ensure that the members of the general public are informed and are able to track projects undertaken by the government and which is an obligation under Article 35 of the Constitution of Kenya.
112. Since the web portal was set up, there have been over 6 million impressions (visits) which shows it is a very useful tool for monitoring government projects and receiving feedback from members of the public.
113. I am informed by the 3rd Respondent's counsel on record and verily believe it to be true that.
i. Article 35 of the Constitution and the Access to Information Act guarantee the right to information ii. Article 201 of the Constitution requires that there be openness and accountability including public participation in financial matters.
iii. Article 10(2) (c) of the Constitution of Kenya cites transparency and accountability as some of the national values and principles of governance.
iv. Article 43(1) (c) guarantees every Kenyan the right to be free from hunger and to have food of acceptable quality even when the country is going through its worst drought since 1945 as is currently the case.
v. Article 210 (a) of the Constitution of Kenya that there shall be openness and accountability, including public participation in financial matters.
vi. Article 232(1) cites Lists the following as some of the values and principles of public service that apply, at all times, to all State organs in both levels of government and all State corporations.
i. efficient, effective and economic use of resources; ii. responsive, prompt, effective, impartial and equitable provision of services; iii. involvement of the people in the process of policy making; iv. accountability for administrative acts; v. transparency and provision to the public of timely, accurate information;
vii. Article 20 (5) of the Constitution states that:
“In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles— (a) it is the responsibility of the State to show that the resources are not available;
40 (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and (c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion
114. Any provision of the law that curtails a right guaranteed by the Constitution is I am advised by the 3rd Respondent's counsel unconstitutional
115. I am aware that there is litigation before the High Court on, inter alia, the constitutionality of section 14 of the Elections Act. The cases are: a. Constitutional Petition 162 of 2017 : Apollo Mboya vs Attorney General and 3 others and b. Constitutional Petition 182 of 2017: Jack Munialo & 12 others -vs- Attorney General.
116. The High Court will determine the question of the constitutionality of section 14 of the Election Offences Act on 13th October and 19th October, 2017 respectively;
117. I am informed by the advocate on record and which I verily believe to be true that a bill was introduced to the National Assembly seeking to repeal section 14 of the Elections Offences Act to ensure that the section conforms to Article 35 of the Constitution. Unfortunately, the National Assembly was prorogued before the bill was passed.
Improper Motives and Electoral Misconduct
118. The Petitioner has, subsequent to the announcement of the results, repeatedly stated that the election was a fraud and that the 3rd Respondent is a “computer generated” leader and that it does not matter who won this election. I refer this honourable court to paragraphs 14 and 16 of the Petition.
119. In a repeat of their conduct in 2013, the Petitioners and their surrogates , particularly Africog and its members including Mr Maina Kiai and Mr David Ndii, have repeatedly engaged in hate speech and incitement in violation of the provisions of Article 33(2), the Electoral Code of Conduct and the National Cohesion and Integration Act so as to:
a. Undermine the electoral process b. Compromise the fair adjudication of this petition; and c. Subvert the free and sovereign will of the people of Kenya expressed on 8th August 2017.
41 120. I now produce a summary of news reports marked “WG 20” which identify instances of show the Petitioner inflaming and inciting public passions before and after the elections.
121. The public utterances by the Petitioner since the election when seen against the orders sought in the Petition are so broad and ungovernable that it appears to me that the Petitioner seems intent on provoking a constitutional leadership crisis that would enable him to negotiate his way to government.
122. The utterances by the 1st Petitioner demonstrate beyond peradventure that he would only consider an election free, fair and democratic if he were declared the winner.
123. I urge this Honourable Court to protect this nation by rejecting this irresponsible and unlawful attempt to secure power notwithstanding the resounding loss suffered at the General Elections.
124. I also urge this Honourable Court to protect our constitutional democracy and reject the Petitioner’s attempt to sacrifice the people’s will at the altar of political expediency and to determine that JP’s candidates were duly elected at a free, fair, credible and valid election conducted on 8th August 2017.
125. That what is deponed above is true and within my knowledge save where otherwise stated and the source clearly identified.
SWORN at NAIROBI ) By WINIFRED WACEKE GUCHU, ) This day of 2017 ) ) ) ) BEFORE ME ) ) ) ) ) ) COMMISSIONER FOR OATHS )
Drawn and filed by:
OGETO OTACH & CO ADVOCATES SIFA TOWERS, 7TH FLOOR LENANA/RING ROAD KILIMANI JUNCTION P.O.BOX 79428-00200 NAIROBI TEL- 0722531118
42 Email: [email protected]
TO BE SERVED UPON:
MURUMBA & AWELE ADVOCATES MIRAGE PLAZA, MEZZANINE 1, UNIT 7 WESTLANDS, CHIROMO ROAD P.O. BOX 222505-00200 NAIROBI Cell- 020-2004420 Email: [email protected]
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