By Daniel Kazungu & Agencies
Kenya Supreme Court judges are in a secluded Nairobi hotel, prescription just a day after receiving a judiciary-commissioned audit indicating anomalies in at least 121 Forms 34B used to declare constituency presidential results.
After a gruelling three-day petition showdown in which Opposition chief Raila Odinga is seeking to overturn President Uhuru Kenyatta’s reelection, this the seven Supreme Court judges will tomorrow deliver a historic ruling that is likely to shape Kenya’s political terrain.
Their decision will either allow Uhuru’s swearing in for a second term or a rerun of the election within 60 days.
Lawyers for the President and the IEBC, however, contend that court should not entertain grievances about trivial problems during voting and tallying.
According to the audit tabled before the court, at least 121 forms out of 291 scrutinised contained various anomalies.
Reports indicate that a total of 291 forms 34B — representing the 290 constituencies and the diaspora — were scrutinised by NASA experts.
Out of these, some 56 forms did not have watermarks, a security feature that was part of the contract between the IEBC and Dubai printer Al Ghurair.
Another 31 forms had no serial numbers, while five forms were not signed by returning officers.
Raila’s lawyer James Orengo has termed the judiciary report “the smoking gun” and argued nearly five million votes were at stake in constituencies with “irregular” forms.
“Our case has been proved that forgery, alternation of documents and deception have been used in various ways, including one in which the server was used,” Orengo told the court on Tuesday night.
The report also indicates that there were 3,395 failed login attempts to the IEBC servers and 3,851 successful log in attempts. Raila has built his case that Uhuru was declared without requisite statutory forms and then IEBC fraudulently procured fake forms to justify the win, a claim that lawyers for the IEBC and Kenyatta have rubbished.
The judiciary audit indicates, however, that of the 291 forms, 236 forms bore watermarks, while another 261 had serial numbers. At least 281 were signed by returning officers, 225 were signed and stamped by the ROs and two were only stamped. Some 260 forms were signed by agents, and 32 not signed, according to the report.
Besides the audit of forms, there was a separate audit by the court on the ICT system, including the IEBC computer servers.The report prepared by Prof. Elijah Omwenga, Joseph Sevilla and Janet Kadenyi observed that IEBC allowed only partial read-only access to its servers, with no copy capability or access to database logs.
The report also indicates IEBC only provided logs in trail into the KIEMS database management system in a hard disk. This was rejected by the NASA team, insisting on accessing the logs directly from the server.
“The first respondent (IEBC) should demonstrate the logs came from the IEBC server by allowing all parties to have read-only access and copy logs: alternatively, the first respondent could access the information in the presence of the petitioner as and when requested,” the experts said.
It was also noted the IEBC indicated they had technical challenges in complying with the server read-only access order, including set up of the VPN tunnel to the server, connectivity challenges when accessing the cloud and security protection measures that need to be upheld as the election period is not over. Raila has previously claimed the system was hacked.
The former Prime Minister initially claimed results captured in IEBC data showed he was leading by 8.04 million votes against Uhuru’s 7.7 million.
“What the IEBC has posted is a complete fraud…to give Uhuru Kenyatta votes that were not cast…We have uncovered the fraud. Uhuru must go home and IEBC must be fully accountable,” Raila said later.
In scrutinising the forms, NASA’s team asked the registrar to allow them to distinguish the fake forms from genuine ones, as per court order.
This meant they had to check presence of watermarks using the UV reader, color of the form, serialisation, micro text, format of forms, anti-copy features and column for comments on the form.
Kenyatta’s agents did not oppose the proposal but requested they be allowed to look at the exact forms checked by NASA and make their own comments.
After scrutiny of forms 34C, NASA noted the security features of watermark and serialisation were noted and the form looked like a photocopy.
The President’s team noted the form was a copy of the original duly certified by an advocate. They further noted the form contained declaration of results signed by IEBC chief Wafula Chebukati and other agents, except for ODM where there is a comment that the agent declined to sign.
A total of 4,120 forms were sampled across five counties and some of the issues raised were that some forms were carbon copies, original form 34As did not bear the IEBC stamp, some forms were scanned copies and some forms not signed.
One of the volumes was labeled as illegible forms, which contained 10 copies of scanned form 34As. IEBC indicated the originals of those polling stations were locked up in the ballot boxes
The report also faulted IEBC over failure to provide firewall rules. A fire wall controls access or traffic in and out of a server with restricted server. The audit shows that on August 8, there was no traffic on the firewall. Traffic started flowing from August 12.
The Supreme Court earlier in the week granted NASA restricted access to select IEBC data and equipment used to conduct August 8 general election.
In a unanimous decision, the seven judges of the highest court in Kenya said they had granted the petitioner orders of access because understanding how the systems work will help the court come to a fair decision.
The orders were limited to only aspects that will not compromise the commission’s electoral management systems.
The court further ordered the commission to grant the Nasa team reading devices to distinguish the authenticity of the all documents offered.
Opposition leader Raila Odinga believes he has been cheated for the third time in a row.
Following the disputed 2007 election – which Odinga lost to Mwai Kibaki – politically motivated tribal violence resulted in 1,100 deaths.
When Odinga was declared the loser to Kenyatta in 2013, he took his complaints to the Supreme Court and lost.
Following the August 8 poll, Odinga rejected the electoral commission’s results which gave Kenyatta a 54% vote lead.
Odinga claims, without providing proof, that hackers used the identity of a slain election official to manipulate the result in Kenyatta’s favour.
The commission said there was a hacking attempt but it failed, and election observers say they saw no signs of interference with the vote.
At first, the NASA principal said court challenge was not an option, only for him to change his mind saying, “This is just the beginning. We will not accept and move on.”