CJ Maraga Lives To Expectation Delivers Detailed Mistakes By IEBC That Facilitated Election Rigging In Favour Of Uhuru Jubilee
Chief Justice David Maraga has directed IEBC to put in place a complementary system for the October vote as previous elections had “enormous illegalities and irregularities”. Maraga said the electoral agency should go back to the drawing board before NASA chief Raila Odinga and President Uhuru Kenyatta vie again. The election has been scheduled for […]Continue reading
The Supreme Court cannot accept IEBC's argument that technology failed in some areas, Deputy CJ Philomena Mwilu has said.
Mwilu said the commission's ICT officials must have known some areas had weak networks and should have provided alternatives.
On August 6, the electoral agency said 11,155 out of 40,883 polling stations lacked network coverage and that returning officers there would move to areas with internet hot-spots to relay results.
The commission said the areas were out of the 3G or 4G GSM network coverage. Kisii had the highest number of such stations (922) and was followed by Muranga (912) and Homa Bay (892).
Mwilu said: "It must have not dawned to them in two days that they could not get network and this was in violation of the law. Failure to access 3G or 4G is not a failure of technology.
"They said they were going to be unable to transmit from 11,000 polling stations but they should have done that earlier so we cannot accept the IEBC's explanation."
The judge said the electoral agency failed to electronically transmit results and that the poll was neither transparent nor verifiable.
Mwilu, who read details of their historic ruling alongside colleagues, said the commission declared results without receiving forms 34A.
"Why was IEBC unable to supply forms 34A, that were said to be 11,000 in number, four days after the election results? Why would it have been impossible to avail the copies to the petitioners?"
The judge further said responses by the electoral agency's lawyers showed "disturbing if not startling revelations"
"The first respondent used forms 34B as opposed to forms 34A in declaring the presidential results...according to the IEBC, they modified forms 34C to 34B and used these as source documents to determine winner instead of using form 34A," she said.
"Neither the first nor second respondent provided a sufficient response as to whether all forms 34As had been transmitted to the tallying centre....the forms had dubious authenticity..."
She added the IEBC did not respond adequately on how the manual Form 34Bs arrived faster than electronic versions.
On August 10, Jubilee and NASA presidential teams scrutinised forms 34A and 34B at Bomas to ascertain the integrity of the election process.
The two sides of the political divide took their rivalry to this exercise, making conflicting claims on the findings.
During the process, Jubilee Party Secretary Raphael Tuju asked if anybody could manipulate 40,883 F34As to tally with the displayed results He said no anomalies had been detected that far in the verification of form 34As and told opposition to concede.
'ELECTION A PROCESS NOT EVENT'
Mwilu further said the election is a process, not an event, whose conclusion is showed without a showcase of the steps.
"IEBC ignores that elections are not only about numbers. Even in numbers, we were taught that when you arrive at a mathematical solution, there is always computation and one has to prove the process used."
The Deputy Chief Justice said IEBC flouted the law and the constitution to the extent that they became the law themselves.
"While integrity is important in the whole electoral process, it's more important in counting and tallying of votes," she said.
"It is important to note the terms simples, secure, verifiable system are engraved in our constitution."
In her address earlier on Wednesday, Mwilu said the electoral agency's system was infiltrated and data contaminated.
Lawyer Ahmednasir Abdullahi has criticised the full verdict of the presidential election results, terming it a political act by the Supreme Court.
He said in a tweet on Wednesday: "Supreme Court is getting first year law or 101 law wrong ... distorting evidence."
"This judgment is unworthy of the Supreme Court of Kenya, a political act designed to subvert the will of the Kenyan voter...simple..." the lawyer also known as the Grandmullah tweeted.
More on ruling: Maraga details IEBC mistakes, says alternate system a must
The Court delivered its full ruling on Wednesday, giving details on why it nullified President Uhuru Kenyatta's re-election in the race against NASA candidate Raila Odinga.
Ahmednasir said he will publish a piece in the Daily Nation on Thursday about the "opaque jiggery-pogery of a judgment".
He was among lawyers representing Uhuru in the petition filed by the Opposition leader.
In their ruling, Chief Justice David Maraga, deputy CJ Philomena Mwilu, judges Smoking Wanjala and Isaac Lenaola found the election was marred by irregularities and illegalities as it was not conducted within the Constitution and the Elections Act.
But judges Njoki Ndung'u and Jackton Ojwang gave a nod to the election of President Uhuru Kenyatta.
Justice Smokin Wanjala did not attend the hearing as he travelled out of the country.
Kenyans should allow the besieged IEBC to manage the re-run, Kipsigis elders have said, adding Wafula Chebukati's team should not be disbanded.
The Myoot council, through national chairman Reverend Paul Leteito, said those calling for disbanding should "hold their horses".
The calls are by NASA chief Raila Odinga and his co-principals who claim people at the commission engaged in malpractices.
While giving detials of the Supreme Court's nullification of the election, CJ David Maraga talked about IEBC's mistakes and noted they must have a complementary system.
Jubilee Party and NASA supporters have camped outside the Supreme Court waiting for CJ David Maraga and his team to give details of their ruling.
Following charged protests, the council further called for peaceful elections.
Leteito asked the supporters not to stir up violence while showing support for their candidates.
He expressed concern that demonstrations could turn bloody if extremists from both side of the political divide are not cautioned by security agents.
"Let leaders from NASA and Jubilee restrain their supporters from engaging in hooliganism, destruction of properties, blocking of roads and burning tyres."
The Reverend also said they are concerned about the economy as matters will get out of hand if the situation is not contained.
"The political scenario is causing anxiety and if not arrested now, it could easily trigger chaos and disrupt elections, KCPE and KCSE examinations and kill our economy."
The elders from Kericho, Bomet, Narok and Nakuru counties met at the Kericho hall on Wednesday
They asked the Kalenjin community to turn up in large numbers to vote for Uhuru and Deputy President William Ruto in the election tentatively set for October 17.
Leteito praised the community for keeping peace during the August 8 general election and urged them to ensure this is the case when the poll is repeated.
The 14 members who addressed the press praised former Bomet Governor Isaac Rutto for accepting defeat by Joyce Laboso and declaring support for Jubilee.
Chief Justice David Maraga has directed IEBC to put in place a complementary system for the October vote as previous elections had "enormous illegalities and irregularities".
Maraga said the electoral agency should go back to the drawing board before NASA chief Raila Odinga and President Uhuru Kenyatta vie again.
The election has been scheduled for October 17 but this could change.
"In conducting the fresh election, IEBC must conform to the constitution for what is the need of having a constitution when it is not respected?" he asked.
"If anomalies remain, the same court will annul the elections regardless of the aspirants....As it is important to respect the will of the people, it is also important to maintain the purity of an election."
Maraga said irregularities by the commission were of a substantial nature so they cannot be ignored.
"Some forms did not have security features but were said to have been printed by the same printers," he said.
In her address earlier on Wednesday, Deputy Chief Justice Philomena Mwilu said the electoral agency's system was infiltrated and data contaminated.
Maraga further said IEBC's Immaculate Kassait swore an affidavit misleading the Supreme Court that all forms had security features.
"Where did the security features on the forms declared by the IEBC disappear to?" he posed.
He said no reasonable explanation was given as to why some forms lacked the features and asked how a presiding officer failed to append a signature to a document he or she prepared.
"Could the critical documents be considered genuine with no security features? We were left wondering. Form 34C that was used to declare the result was not by itself free from doubts of authenticity," he said.
"Some of the forms used were carbon copies while others were originals hence authenticity could not be guaranteed."
The top court president said that at the end of the day, the elections must reflect the true will of the people whether they are about numbers or laws.
Maraga noted the court cannot nullify elections when errors are minimal, and that no election is perfect, but reiterated irregularities cannot be ignored when they are "enormous".
"Where do all those irregularities leave this election? It is true that where the quantitative difference is manageable, we should not disturb the election. What if the numbers [raise] many unanswered questions? The quality is as important as the quantity."
Maraga said "the greatness of a nation lies not in the might of its army or its economy but its fidelity to its constitution".
"It is our finding, irregularities by IEBC would, in any court applying its right mind, be found unconstitutional."
The CJ has been criticised by many following the September 1 nullification of Uhuru's victory.
He talked tough on Tuesday saying if leaders are tired of a strong and independent Judiciary, they can call a referendum and abolish it all together.
Tanzania's government has closed a critical newspaper for the second time in three months, banning the weekly MwanaHalisi for two years after accusing it of inciting violence.
Another newspaper - Mawio - was banned in June over articles it published linking two former presidents to alleged improprieties in mining deals signed in the 1990s and early 2000s.
The moves appear to cement President John Magufuli's pledge in January that the days of newspapers his government viewed as unethical "were numbered" - a statement that triggered concerns about censorship.
"The government has suspended publication and circulation of the weekly MwanaHalisi newspaper for 24 months...due to repeated unethical reporting, publishing fabricated and inciting articles and endangering national security," the state-run Tanzania Information Services said in a statement.
The body said MwanaHalisi published a series of inciteful articles about Magafuli and that its editors had refused to apologise for their reporting.
Magufuli, nicknamed "the bulldozer", has won some praise from Western donors for an anti-corruption drive and cutting wasteful public spending.
But opponents accuse him of increasingly undermining democracy by curbing dissent and stifling free speech.
Tanzania has one of the most highly diverse media industries in Africa, with over 450 registered newspapers and journals, as well as 180 radio and television stations.
In November, Magufuli signed into law a bill that journalists said was aimed at muzzling freedom of the press.
The Media Services Act of 2016 gives officials powers to shut down media organisations that violate their licenses and requires newspapers to apply for an annual license.
NASA did not provide sufficient evidence to show President Uhuru Kenyatta broke the law by using state resources during his re-election campaign.
Chief Justice David Maraga said this at the Supreme Court on Wednesday while reading the full ruling on Opposition chief Raila Odinga's petition.
More on details: IEBC's system was infiltrated, restricted access suspicious - Mwilu
Maraga, who is Supreme Court president, said the evidence they have is inconclusive.
"In response to those allegations, we are unable to deal with that in the absence of any evidence. The petitioners have not proved their case in the required standard."
The CJ also addressed the petitioner's claims that Cabinet Secretaries publicly asked Kenyans to vote for Jubilee.
NASA claimed ICT CS Joe Mucheru told an interview he was at liberty to campaign for Jubilee. Water minister Eugene Wamalwa, who is on record saying this, and Tourism's Najib Balala were also mentioned.
"We cannot afford to lock our eyes to the President who had no benefit to bring his thoughts into this. Let the matter be addressed in the right proceedings," Maraga said.
"We note that in rendering advisory opinions, this court stated that the High Court has been given the powers to interpret the constitution."
In June, NASA gave DPP Keriako Tobiko seven days to prosecute seven CSs, a principal secretary and a KRA boss for allegedly using state resources to campaign for Jubilee.
Education Cabinet Secretary Fred Matiang'i, Wamalwa, Devolution's Mwangi Kiunjuri and the late Joseph Nkaissery of the Interior ministry were among leaders targeted by NASA.
The others were James Macharia (Transport), Balala, Cleopa Mailu (Health), Energy PS Joseph Njoroge and KRA boss John Njiraini.
On April 13, the IEBC warned public servants against using state resources in their campaigns ahead of the August 8 polls.
The commission said such practices are against provisions of Section 14 of the Election Offences Act, 2016.
Chairman Wafula Chebukati in a statement said those who violate the law will be fined Sh2 million or jailed six years.