The hearing of the Supreme Court presidential petition challenging William Ruto’s victory and declaration as president-elect kicked off on Wednesday, August 31, with the first submission from senior counsel James Orengo.
Orengo, the lead counsel for Azimio La Umoja presidential candidate Raila Odinga, asked the seven-judge bench to nullify the 2022 presidential election arguing that Ruto did not get the required 50 per cent plus one vote.
He first argued that the Independent Electoral and Boundaries Commission (IEBC) contradicted itself when it first indicated that the total votes cast were 14,466,779 representing 65.4 per cent before it later indicated in the final votes captured in Form 34C as 14,213,037.
The Siaya Governor as well pointed out discrepancies in results and voter turnout in some areas. Further, he said that KIEMS kits and Form 34C, which was used to declare the president-elect, do not account for over 140,000 votes which have an impact on the declared results.
“If you look at the results as announced by IEBC and compare them with what is stated in Form 34C, and if you compute the number of votes cast for each of the four candidates, they do not add up completely,”
Orengo, moreover, told the apex court that his team, in subsequent presentations, will demonstrate how the number of votes cast keeps shifting as set out in Form 34C. The Senior Counsel invited the court to calculate the figures.
“Our grievances is not a conspiracy theory or any ordinary event, if you look at the evidence in totality, We invite your lordships to come to the conclusion that what happened on August 9 marks a pattern of violations against the constitution in order to undermine the sovereign will of the people," Orengo stated.
In his submission, he furthermore argued that there was a systematic deduction of votes cast for Raila in some constituencies, and the same number of votes given to Ruto.
“The way the commission was able to deal with the forms in uploading, transmission, and others deleted from the system clearly showed that this election was rigged in favour of Ruto and we urge that you nullify the election because Ruto did not attain the 50 per cent plus one vote threshold," Orengo urged.
Lawyer Julie Soweto, concurred, adding that there were discrepancies in votes cast for the President, Governor, Senator Woman Rep, MP and MCA in various polling stations. She cited Kirinyaga County where votes cast for Governor and President had a difference of 23,550 votes in favour of the latter.
"In 41 forms from the polling stations; Forms 34A received by petitioners' agents versus the Forms 34A uploaded in the IEBC portal and those brought to the tallying centre are different. Sampled forms were from Bomet, Kiambu and Kakamega counties," the attorney told the court.
Soweto additionally argued that IEBC intentionally cancelled gubernatorial elections in Kakamega and Mombasa, the perceived strongholds of Raila Odinga. The cancellation of votes, she lamented led to low voter turnout.
Senior Counsel, Philip Murgor, added that several foreigners accessed the IEBC systems as super administrators having powers to change, delete, and modify amongst other access privileges.
"The election was controlled from everywhere except the IEBC. Evidence will show that there was malicious existence of commission staff of individuals not officially gazetted. There was remote access to the system of IEBC by a stranger. We have evidence of downloading of forms, changing figures, converting them then uploading them again
"A group of about 50 people in the suburbs of Karen, had access to the IEBC ICT system. They were intercepting results before they were uploaded to the portal. The IEBC system was infiltrated, while unknown people further gained unlawful access after they were granted credentials, for the manipulation of the presidential result," Murgor, who also represents Raila added.
Lawyer Paul Mwangi further claimed that all IEBC commissioners are equal in terms of qualifications and the chair cannot treat members of the commission as subordinates. He referred to the fallout between IEBC chair Wafula Chebukati and his deputy, Juliana Cherera.
The renowned attorney argued that "The power given to IEBC chairman to declare election results doesn't amount to a power to decide on election results to declare.
"Chebukati has disrespected the constitution he has been unable to deliver a free and verifiable election. Any decision of the commission shall require the concurrence of a majority of its members," he detailed.
DP William Ruto's lawyers will defend his victory on Thursday, September 1 with the Supreme Court issuing its verdict on Monday, September 5.
