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Nairobi, Kenya | THE STAR KENYA | Supreme Court judges on Wednesday bombarded the Azimio la Umoja legal team with tough questions on some of the issues they raised during their oral submissions in the presidential petition.
The judges shot the questions to specific lawyers who made certain claims on the electoral process which the Azimio team says wasn’t credible.
Justice William Ouko asked lawyer James Orengo to explain to the court the relevance of rejected votes in the tallying of final presidential results.
“What is the relevance of rejected votes when computing the outcome of presidential votes?” Ouko asked.
The judge also asked the senior counsel to explain how the postponement of the August 9 polls in Kakamega, Mombasa and six other electoral areas including four MP elections affected the outcome of the presidential election.
“You say that the postponement of elections resulted in voter suppression…that people wake up one morning to go and vote for particular candidates…do we have any scientific nexus on this or is it just an assumption that this happens,” Ouko posed.
Justice Njoki Ndung’u wanted answers on how the alleged voter repression only affected the presidential election and not any of the other five elective seats.
“When a voter goes to vote they get six ballots….what we have then is six different elections but on the same day. So if your argument is voter repression is voter repression then is it voter repression only in the presidential election or is that an argument that can be used by an MCA in Kakamega county?”
The court also asked the Azimio legal team to demonstrate how Forms 34A were tampered with at polling stations.
This follows claims by the Azimio presidential candidate Raila Odinga in his petition that some Forms 34A were falsified at tallying centres.
“The staging and tampering…explain to us how that can happen in real time…how was Kagera Primary school interfered with form 34A,” Justice Issac Lenaola asked.
They wondered how forms filled using a pen can be altered once they are uploaded on the public elections portal.
“What I want to understand is how forms written in handwriting can be changed. How does that happen?” Justice Njoki Ndung’u asked.
In the event that the forms uploaded on the portal are captured and changed, Justice Smokin Wanjala asked, “Can the hackers change the physical Forms 34A being delivered by road to Bomas?”
The court also wanted an explanation on why it should believe the evidence by the four dissenting IEBC commissioners that the presidential results were not accurate.
The commissioners led by vice chair Juliana Cherera, Irene Masit, Francis Wanderi and Justus Nyanga’aya rejected the presidential results saying they were opaque.
“We saw your clients reading out results…what evidence do we have that this was not an after thought ?..why don’t we have anything that for the last two three months which show that they documented about this things? Justice Lenaola asked.
“My own sense of things is that when you come only at the point of final declaration, how then do we trust that in fact there were issues before?”
“Tied to that,” he went on, “what role did violence play at Bomas? We have the evidence of the chairman that I couldn’t do this because I was attacked, Guliye was attacked we couldn’t announce 27 constituency results,” he said.
The judges also wanted to know why the four commissioners did not protest at the beginning of the tallying exercise that they were being secluded in the verification exercise of the results until the very last minute.
“Is this chairperson we are dealing with such a terror that nobody can face him and tell him you can’t do this? Because what we are hearing are serious disclosures,” Justice Smokin Wanjala said.
“When did this commission become this dysfunctional,” deputy Chief Justice Philomena Mwilu asked, terming the allegations leveled against it as ‘kama vindio kama ndrama’ (Dramatic).
Justice Njoki Ndung’u wanted to know where voters in the prisons and in the diaspora should have been categorised after the Azimio team said Chebukati illegally added an additional constituency onto the 290.
Other questions include the role of voter turnout in determining acquisition of 50 per cent plus one votes by candidates in an election.
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