The main basis of the Azimio petition seeking to nullify the results of the August 9 presidential election is that none of the candidates achieved the Constitutional threshold of 50 percent plus one vote. In the court papers , Odinga avers that William Ruto’s tally fell short by at least 441.
The Azimio duo allege Mr Chebukati has bungled a second successive presidential election. They also say that he disregarded several election laws in declaring Ruto the President-elect. The Azimio team argues that the numbers Mr Chebukati relied on in his declaration do not add up when tallied against the vote transmission forms.
No candidate received at least 50% plus one vote
Dr Edgar Otumba, the statistician whose Odinga relied on in the nullified 2017 presidential election, has pointed out that based on the IEBCs documents there are discrepancies with what Chebukati announced.
The conclusion, Odinga said, was arrived at through scientific and verifiable calculations by one of their witnesses, Dr Edgar Otumba. According to their calculations, the 50 percent threshold should be 7,176,582.766 votes. But Ruto was declared the winner with 7,176,141 votes, thus creating a shortfall of 441.766 votes.
The calculations by his legal team show that Raila’s shortfall to the halfway mark was 233,652.766 votes. He garnered 6,941,930 votes which is 48.372 percent instead of 48.85% declared by Chebukati. Similarly, Ruto’s tally would be 49.997 per cent instead of the 50.4 per cent announced by the IEBC.
Further, in arguing that Dr Ruto never met the Constitutional threshold, Odinga and his running mate Martha Karua allege that IEBC kept deleting and uploading different Forms 34A, 34B and 34C even after the declaration on August 15.
Rejected and Spoilt Votes
Odinga and Karua also want the Supreme Court to give an order for the scrutiny of all rejected and spoilt votes. They say that a declaration should be made to have the rejected votes included while computing whether a candidate has achieved the 50 per cent plus one vote threshold.
In 2013, the Supreme Court ruled that only valid votes should be used during the computation of the threshold during the then petition against the election of President Uhuru Kenyatta and Ruto.
Massive swapp of Documents
In their petition, Mr Odinga and Ms Karua claim that there was a plan, which was hatched in March, to manipulate the election results in Ruto’s favour. Part of the manipulation, the hold, is seen in a sample of 42 polling stations in Kiambu and Bomet counties. In these counties, physical forms differ from what was uploaded onto IEBC’s portal. In both counties, Ruto got significantly more votes in the forms uploaded on the IEBC portal, compared to the physical documents, while Odinga’s votes were significantly reduced.
Chebukati, they say, was continuously deleting and uploading different result declaration forms i.e. forms 34A, 34B and 34C. This continued even after the declaration of the final outcome on August 15, 2022. This, the Azimio candidates say, shows that there was a massive swap of documents in Dr Ruto’s favour and is a ground for invalidation of the results. The conflicting forms, the petition states, share serial numbers but have different results, which is evidence of manipulation.
But even based on the disparities in the fraudulently manipulated numbers of the voter turn out, the petitioners state that Ruto did not meet the constitutional threshold of 50 per cent plus one of the valid votes cast.
Over 200,000 votes not accounted for
Last week, Chebukati announced, amid chaos at the National tallying Centre inside Bomas of Kenya, that Dr Ruto garnered 7.1 million votes (50.49 per cent of the total votes) against Mr Odinga’s 6.9 million (48.85 per cent). In the certificate handed to Ruto on August 15, Mr Chebukati stated the result were based on 14,213,137 votes from all over the country.
But the petitioners now argue that adding up the number of voters from all constituencies listed in the certificate leaves Mr Chebukati’s final tally short by 110 votes. They add that in total, the IEBC has not accounted for more than 140,000 voters. These are voters who were captured using identification kits at their polling stations but whose choice for presidency is not reflected in form 34C. Form 34C is the final result transmission form. The 140000 includs individuals who were identified using the printed voter register. In total the Azimio team holds that more than 250,000 votes have not been accounted for in Mr Chebukati’s final tally.
Usurping powers of the commission by the chairman
Article 138 of the constitution gives power to the IEBC as a commission to tally and rely results. But Mr Chebukati usurped the role of the institution in declaring incomplete and unverified results.
Among the constituencies Azimio holds had not transmitted results were Mvita , Matunga, Kilifi North, Bura, Fafi, Wajir North, Eldas, Mandera West, Tigania East, Mbeere North, Ndaragua. Kapenguria and Kacheliba. 0thers are Narok North, Narok South, Narok West, Kaiiado East, Kanduyi, Nyakach, Rangwe, Ndhiwa, Suba North, Kuria East, Bomachoge, Borabu, Kitutu Chache North and West Mugirango.
Acrimony Between commissioners
A series of internal conflicts pitting Mr Chebukati against past and present IEBC staffers has also led the Azimio candidates to call his removal and invalidation of the August 15 declaration. The latest fallout has seen commissioners Juliana Cherera, Justus Nyangaya, Francis Wanderi and Irene tvkessit disown the resuits Mr Chebukati announced.
Raila Odinga has listed all seven commissioners and Mr Chebukati as respondents alongside Ruto. Their listing as respondents is likely to make matters bad for IEBC as they could submit conflicting positions in court. In arguing that Chebukati should not preside over the next election, the petitioner say “Throughout his tenure as the chairperson of the IEBC, Mr Chebukati has had acrimonious public disagreements with critical members of the commission, including Commissioner Roselyn Akombe who resigned in 2017 in the middle of an election; Commissioners Connie Maina, Mauvaret Mwachanya and Paul KulV1t who resigned in 2018; Ezra Chiloba the CEO/Secretary; and now Juliana Chetera, Justus Nyangaya, Francis Wanderi and Irene”
The petitioners have dragged the Directorate of Criminal lnvestigations (DCI) into the dispute. They want evidence gathered in the arrest of four individuals over the past month presented in court. Detectives arrested three Venezuelans — Salvador Javier Sosa Suzuez, Jose Grecorio Camarigo Castellanos and Joel Gustavo Rodriguez Galt’ia — on July 21. 2022. The DCI said it found the three with sensitive election materials. This, the DCI feared, implied that the trio was likely hired to interfere with election results as one of the laptops confiscated had remote access to IEBC’s systems.
Hacking of servers
The detectives also found that Mr Castellanos had super access to IEBC systems. He also had a hard drive containing sensitive IEBC data. In total, 19 foreigners and two Kenyans had access to IEBC’s systems, the DCI found. The Azim0 candidates have asked that all evidence confiscated by the DCI alongside forensic reports be filed in court for scrutiny. “The arrest of the said foreign nationals travelling with sensitive IEBC election-related materials under self evidently questionable circumstances shows incredible, inexcusable and unacceptable violation of the integrity and security of the electoral process and system.” Mr Odinga and Ms Karua state.
Laptops at the tallying centre
On August 12, the DCI confiscated a black Lenovo laptop owned by a UDA agent at the National Tallying Centre. Parties had agreed that no agent would be allowed to use laptops at the verification auditorium. A forensic analysis, Azimio states, found that the laptop had tallying forms that were somehow being uploaded to IEBC’s portal. Mr Odinga and Ms Karua argue that the laptop was temporarily storing forms for hackers who were waiting to replace genuine documents in the forms portal.
Delay in transmission of results
The Azimio candidates also claim that more than 7,500 identification kits were yet to transmit any data a day after the election. Yet all devices used by the IEBC had been closed successfuly. The kits should have transmitted their data to the National tallying Centre. IEBC’s ICJ support coordinator Paul Wachanga Mugo revealed the information in an email, they say.
Delay in closing kits
Another 687 kits were still transmitting data a day after being closed. One of the witnesses in the petition, John Mark Githong claims to have evidence from a hacker contracted by one of Ruto’s ally The ally, Dennis ltumbi, was to manipulate forms being uploaded to portal. The hackers would allegedly intercept and manipulate the forms like in 2017.
Discrepancy between Presidential votes and other positions
Mr Odinga is also questioning how thousands of voters only voted for the presidential candidates but ignored other positions. Azimio sampled eight counties and found 33, 208 voters who purportedly made only a Presidential pick. The coalition also claims that IEBC staff intentionally failed identification kits in Kakamega and Makueni counties, which are Odinga’s strongholds, to frustrate voters and suppress the former Prime Minister’s votes.
Postponement of Elections
Odinga and Ms Karua further state that the postponement of the gubernatorial and National Assembly members elections in some parts of the country like Mombasa, Kakamega and Nakuru’s Rongai Constituency, was part of a voter suppression strategy to discourage Odinga’s supporters from turning up.