Sprm Cort Js inspct t rtllyin of vots t KICC, ystry.
[PHO-TO: EVANS HABIL/STANDARD]
Lawyers disagree on core issues
By WAHOME THUKU
Even as the Supreme Court con-cluded the house keeping agenda,lawyers were yet to agree on whatissues the judges should decide on,last evening.The more than ten active lawyersin the three election petitions couldnot agree on which issues were con-tested, and which ones were uncon-tested. They also could not agree with the list prepared by the courtcontaining 12 o what the judge’sthought were the key issues.The lawyers were required to in-dicate against each o the items whether they considered it contest-ed. One outstanding issue is whetherthe rejected votes should be used intallying o votes cast.The other was whether the presi-dential votes had been properly tal-lied leading to the declaration o Uhuru Kenyatta as president-elect. Another issue was whether the elec-tion was ree and air, credible, ac-countable and transparent.On Monday, the lawyers weregiven a three-hour break to discussand agree on the issues they thought were contested and those that werenot. Later in the day, they inormedthe court they had drated six issues,but had not agreed on them.The court allowed them moretime, but by yesterday aternoon,they still had not agreed. LawyerFred Ngatia said some parties hadfled their own lists o what they con-sidered contested and uncontestedissues and asked or time to allow allthe parties to fle their drats.The court will address the materas the frst item this morning beoreembarking on hearing the merits anddemerits o the petitions. Once theparties have submitted their drats o issues, the court would only enter-tain submissions on what is con-tested.
Page 2 / NATIONAL
Wednesday, March 27, 2013 / The Standard
B Ally JAmAha WAhome Thuku
Judicial sta kicked o rigorousscrutiny o crucial orms submitted by electoral ofcials countrywide at theKenyatta International ConerenceCentre as Prime Minister Raila Odingalost key applications at SupremeCourt.Raila and his Coalition or Reormsand Democracy ailed to clinch thecourt’s orders or orensic audit o Independent Electoral and Boundar-ies Commission (IEBC) IT system in abid to unearth i there were electronicmanipulation o the March 4 electionresults.The PM also suered another set-back when the court rejected an 839-page afdavit fled in his petition,raising new allegations o electoralirregularities. The court ruled that theafdavit had irregularly been fled without permission o the court andcontrary to the rules o engagement.Supreme Court Judge JusticePhilip Tunoi, who read the ruling onthe afdavits on behal o his col-leagues, dismissed the ‘late’ afdavits with costs during the pre-trial coner-ence. In total the court rejected seveno Raila’s afdavits over technicalitiesrelated to the time o fling and how they were fled.Tunoi said parties have a duty toensure they comply with respectivetimelines and not waste time or thecourt and other parties to the peti-tions. Also beore the same court a bidby a civil society group Katiba Watchled by Pro Yash pal Ghai had its ap-plication seeking to be enjoined in thecase thrown out.But even as the Supreme Court was ruling on the applications by thePM, judicial clerks were still re-tallying votes rom 22 polling stations. Also at the same venue other judi-cial sta were engaged in scrutinising Forms 34 and 36 rom all the 290 con-stituencies as well as rom the Diaspo-ra as ordered by the court. Form 34bears the results rom polling stations while Form 36 is an aggregate o Form34s at the constituency level.The painstaking eort aims atveriying i there were any inconsis-tencies between the number o regis-tered voters per polling area and thetallies signed and orwarded to theNational Tallying Centre by respectiveReturning Ofcers countrywide.
The scrutiny involving records re-turned by the presiding ofcers in allthe 33,400 polling stations went onsimultaneously with that o resh tal-lying o votes in the 22 constituenciesCORD suspects the number o peopleIEBC reported to have voted may haveexceeded the registered voters in thatparticular station.Last evening, the President o theSupreme Court, Justice Willy Mutun-ga, who is leading the six-judge-bench, toured KICC to assess the reshverifcation process the judges or-dered on Monday.The judges, who have been engag-ing lawyers on preliminary arguments, will begin the serious business o ad- judicating the issues touching on thepresidential elections this morning.They will hear the main petitionfled by Raila challenging the IEBC’sdeclaration o Mr Uhuru Kenyatta asPresident-elect on March 9, or thenext two days ater which they areexpected to deliver their historic rul-ing latest Saturday.The PM had applied to have a o-rensic audit o all the InormationTechnology (IT) equipment and elec-tronic acilities used by the commis-sion. He had applied or an order tohave IEBC compelled to produce allthe equipment and inormation on itsequipment, including computer serv-ers, to have the court conduct theaudit.But in a ruling read out by JusticeIbrahim Mohammed, the bench saidthat owing to the strict time limits thecourt has to hear and dispose o thecase, it would not be possible to havea thorough audit o the IT system. Theapplication was fled on March 19,our days ater the fling o the peti-tion.“What the applicant seeks at thistime in the day is the production o what amounts to the complete IT in-rastructure o IEBC. We are not per-suaded that such an order as is soughtby the applicant can be ully complied with beore the hearing o petition setto commence on 27th o March,” hesaidHe added: “Indeed, i the peti-tioner had fled the application at thetime o fling the petition and pro-ceeded to serve the same upon thesame respondents, it would have beenpossible or the court to issue appro-priate orders during the frst mentiono the petitions. The time or service,fling, hearing and determination o the petition is indeed limited.”
Justice Ibrahim indicated that thecourt could not grant the orderssought without seriously jeopardising the hearing o the main petition.He reminded the legal teams thatall the petitions were to be heard andconcluded within a strict and rigidtime rame decreed by the Constitu-tion, saying the timelines were consti-tutional and not negotiable. Although the applicant said that what was sought would be producedin a very short time, the body o thepetition indicates a dierent thing.“The intention o the ramers o theConstitution must have been to has-ten the determination o the presi-dential petition given the high stakesinvolved and the great public interestthat would ensure rom such peti-tion,’’ the judge went on.“The law obliges the court o law to administer justice without undueregard to procedural technicalities atthe expense o substantive justice. Butin this matter, our insistence on theconstitutionally-decreed timelines donot amount to undue regard to proce-dural technicalities,” he added.Justice Ibrahim urther went on:“Ideally, an intending petitioner mustutilise the seven-day window aordedby the Constitution ollowing the dec-laration o results to ully prepare hisor her pleadings. Likewise, the re-spondent must utilise the three daysaorded by the rules to mount a com-prehensive response to all the allega-tions made in the petition,”But other lawyers who opposedRaila’s application argued the ordersought would require the productiono the entire IT inrastructure o IEBC, which they termed a “monumentalundertaking impossible to eected within 24 hours” and that it was just afshing exercise or inormationthrough the backdoor.They also argued that it had cometoo late during the Pre-trial coner-ence, which is essentially meant toprepare or the actual hearing o thepetition. They added that i the order were granted, it would derail the airhearing o the trial.
But the PM’s lawyers led by GeorgeOraro insisted the application was anintegral part o the petition since itsought inormation that was criticalto the case since it would providecritical answers as to why the IT sys-tem ailed on election day. They alsoargued that the inormation wouldhave provided proo that the system was “designed to ail rom the start”They added that the inormationrequested was not as monumental asimplied by the opponents. They ar-gued that the inormation was easily available rom the central servers.
AUdiT rEpOrT OnTAllying rEAdy
• The results of scrutiny and re-tallying of votes ordered by Su-preme Court on Monday will bepresented to the court today• The judges will receive the re-port of the re-tallying of votesfrom 22 polling stations• The report will also give detailson audit of Forms 36 used byIEBC in aggregating tallies fromForms 34• The court ordered the scrutinyof Forms 34 from all the 33,400polling stations and all Forms 36used in the tallying of presiden-tial votes• The Registrar of the SupremeCourt, Ms Esther Onchana willgive the court the report
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Poll books and BVRsystems and theelectronic resultstransmission systemsadopted by IEBC wereso poorly selected,designed andimplemented thatthey were destined toail rom inception,with the knowledge oIssack Hassan and thecommission.
Collps of tqipmntfnmntllycn t systmof pollin n tnmbr of vots csts t iscritmnl systm sttnnt risks nprsnts opportni-tis for bs nmnipltion, wicin fct took plc.
Ofcial list oregistered votersinexplicably andmysteriously grewovernight by a largeproportion on theeve o the election,notwithstanding thatregistration hadclosed some 30 daysand was by law notpermitted to beopened or changed.
Rsltscontin wispr instncs ofmnipltion of trtrns troltrtion of Form36 n in sominstncs t votscst xcin tnmbrs ofristr votrs.
Total number ovotes orPresidentialcandidates in someinstances exceededthose cast or thegubernatorial andparliamentaryelections atertaking due accounto any spoilt orrejected or disputedvotes.
SuPReMe COuRT JudgeSISSueS RaISed IN The PeTTITION
The law obliges thecourt of law to administerjustice without undueregard to proceduraltechnicalities at the expenseof substantive justice
Court rejectskey applicationsfrom Raila team
Judges dismiss the‘late’ afdavits fromPrime Minister’slawyers with costs