The Supreme Court of Kenya is today delivering its highly-anticipated detailed judgement on the September 1st ruling that nullified President Uhuru Kenyatta's re-election.
Deputy Chief Justice Philomena Mwilu has stated: "Kenyans endured long hours and cast votes then after that the system became opaque. We can't prove that Uhuru got majority votes."
The judges ruled that the Independent Electoral and Boundaries Commission (IEBC) did not meet the constitutional threshold of a simple, accurate, transparent and verifiable election system.
While levelling serious questions on the electoral body's handling of the election, the Supreme Court ruled that the IEBC had dug its own grave by failing the accountability and verifiability test.
The judges declared that the polling station is the true locus of the will of the people, therefore, the declaration of Uhuru Kenyatta as the winner with 11,883 Forms 34A (representing 3.5 Million votes) being unavailable for scrutiny, was a clear contravention of the elections act.
"The petitioners discharged the legal proof that IEBC declared the results of August 8 based on dubious Forms 34B," Mwilu Stated.
The IEBC's position that at the time of declaring the winner they had all 290 Forms 34B was dismissed, with Justice Mwilu noting that the electoral body disregarded Forms 34A which are used to develop Forms 34B.
The judgement stated that the Court of Appeal ruling in Maina Kiai's case made it clear that the simultaneous transmission of results from the polling station to the Constituency Tallying Centre and the National Tallying Centre was intended to ensure there was no human intervention in altering the results. This was not adhered to, with scanned images of Forms 34A unavailable up to 10 days after the election.
Justice Mwilu stated that days before the election, the body had listed areas with poor network coverage and assured Kenyans that they had complementary systems in case of any eventuality with results transmission. They categorically stated that the technology would not fail.
She went on to add that presiding officers in areas with low network coverage were supposed to move to vantage points and transmit results. She noted that the listed areas had fairly good road networks, therefore there was no explanation as to why they could not have physically delivered the forms to Constituency Tallying Centres within a few hours at most.
Also, the Court ruled that the IEBC failed to comply with a court order that compelled them to give read-only access to their servers. Court-appointed IT experts confirmed that IEBC had failed to comply with the order.
They stated that the commission acted like they had something to hide by denying access to their servers and issuing pre-downloaded logs on a hard disk. The logs cannot therefore be confirmed as having been retrieved from the electoral body's servers.
Justice Mwilu noted with finality: "Our order of scrutiny was a golden opportunity for IEBC to discredit petitioner’s claims but they disobeyed the court order.”
EDITOR's NOTE: The Judges are still reading out their verdicts, therefore, more reasons on why the August 8th presidential election was nullified are set to be revealed.
