Supreme Court to rule on hacking allegations, votes disparity in Ruto, Odinga disputeWednesday August 31 2022
The Supreme Court on Tuesday framed eight questions it will answer when it decides on this month’s disputed presidential election result, including whether the electoral commission’s website was hacked.
The apex court will also determine if the polling station returns were interfered with and whether the postponement of gubernatorial, parliamentary and ward elections in some areas disadvantaged any candidate.
Opposition leader Raila Odinga has challenged President-elect William Ruto’s narrow victory at the Supreme Court, adding to uncertainty in the aftermath of a poll to decide the successor to Uhuru Kenyatta.
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Should the Supreme Court nullify the result and order the disbandment of the split Independent Electoral and Boundaries Commission (IEBC), it will take months before a new president takes office.
Tuesday, the judges allowed scrutiny and recount of ballot boxes from 15 polling stations from different parts of the country.
“That IEBC be compelled to give the applicants supervised access to any server(s) at the National Tallying Centre for storing and transmitting voting information and which are forensically imaged to capture a copy of the Form 34C which is the total votes cast,” the seven-judge bench of the Supreme Court said.
This is a deviation from the 2017 election petition where read-only access to the servers were granted.
Mr Odinga’s legal team lodged a case alleging that a team working for Dr Ruto hacked into the election system and replaced genuine pictures of polling station result forms with fake ones, thus increasing the President-elect’s share.
Dr Ruto has denied the allegations.
The electoral commission has filed competing responses, with three commissioners supporting the process and four questioning it.
The seven judges said the court will determine whether the technology used by the electoral body during the election met the standards of integrity, verifiability, security and transparency to guarantee accurate and verifiable results.
The court will also determine whether there was interference with the uploading and transmission of Forms 34A from the polling stations to the electoral body’s portal and whether there was a difference between Forms 34A uploaded on the portal and the forms that were presented at the national tallying centre at the Bomas of Kenya.
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Forms 34A are used to record results at polling stations.
The court, whose decision on presidential election petitions is final, will also consider if there were unexplained disparities in votes cast for the presidential and down ballot races like for Members of Parliament.
It will also decide if the tallying of presidential votes met the constitutional standards if Dr Ruto attained the constitutional threshold of 50 percent plus one of the votes cast, and whether any irregularities were substantial enough to nullify the poll.
The court will issue its verdict on those questions on Monday, September 5.
The infighting among commissioners also played out in court as advocates representing the two factions insisted on arguing the case on behalf of the electoral body.
Senior counsel Githu Muigai told the court that a team of lawyers representing the IEBC, including Kamau Karori and Eric Gumbo, and that any other documents filed by other advocates should be struck from the court records.
However, Senior counsel Paul Muite and Issa Mansur maintained that they were given instructions by the IEBC faction of Juliana Cherera (vice-chairperson), Justus Nyang’aya, Irene Masit and Francis Wanderi.
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The IEBC chairperson, Wafula Chebukati, had the last laugh after the court allowed Prof Githu’s application and struck out the documents filed on behalf of the polls body by the dissenting commissioners.
Deputy Chief Justice Philomena Mwilu said that the four commissioners are, however, free to retain the services of their lawyers, Mr Muite and Mr Mansur, for the duration of the presidential petition.