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Scrutinising Of Election Results: What Didn't Reach The Supreme Court Judges - The Star, April 13, 2013

admin — Mon, 15 Apr 2013 07:00:22 +0000

After observing the Supreme Court’s scrutiny of election results from the polling stations and the constituencies, I was surprised that the report presented to the judges barely scratched the surface of what we found.

On the first day of the pre-trial conference, before the hearings even began, the Supreme Court judges ordered judiciary staff to conduct a scrutiny of Forms 34 and Forms 36.

The court also ordered a re-tallying of 22 contested polling stations, alleged to have had serious problems. The order was a welcome one, as it affirmed hope in the independence of the court and seemed to indicate the judges’ commitment to fully understanding the myriad problems alleged by petitioners.

Soon after the process began, however, it became clear that it was fraught with problems. Security during the scrutiny was severely lacking. Judiciary employees, as well as agents for the petitioners and respondents, were initially divided into eight stations.

Each group was tasked with scrutinising all submitted Forms 34, which consisted of manually entering all the numerical data from Form 34 into a spreadsheet. All data from the eight scrutiny stations would then be transferred onto one central computer using flash drives.

It is unclear when these flash drives were issued and what the protocols were to secure them overnight. There was also little security around the central computer, which was intermittently surrounded by one group of people or another.

After these issues were brought to the attention of the judicial staff, armed guards were brought in. While that helped secure the room overnight, it did little to secure the main computer receiving all the data.

Omitted from the report

Our observation notes covering just one day of scrutiny showed 64 missing forms 34 from 14 different constituencies. The report to the judges, on the other hand, showed that Forms 34 from only 10 constituencies could not be found.

Notably, our notes show several instances in which the number of votes cast exceeded the number of registered voters. Those were not the only omissions.

On many forms, the numbers did not add up. For instance, the number of votes cast, as recorded, was not always the sum of valid and rejected votes. There were also differences between the aggregate number of valid votes as written out in numerals and in words. Which result was announced, the one in words or the one in numerals?

We also noted multiple copies of the same form, some of which contained identical figures and others of which included non-identical figures. Some forms were missing results for certain candidates, including instances where all candidates were not listed, or were listed with no corresponding result.

Often, figures were missing from the documents, and the numbers were illegible or had been changed without an authorising counter-signature. How did the judges end up receiving a partial report of the scrutiny?

Flawed methodology

The methodology for scrutinising the Form 36 – the document used to collate results at the constituency level -- was also flawed and failed to show important discrepancies.

Our analysis showed that in some cases, the numbers for a particular polling station, as recorded on Form 36, were different from what was recorded on the corresponding Form 34.

There was no way to identify the problematic polling stations without using a polling-station level scrutiny of Form 36. Moreover, the methodology failed capture problems like missing polling stations on Form 36.

Based on our observation, the judiciary review also failed to highlight important differences between Forms 34 and Forms 36. It did not show, for instance, that in Isiolo North, the total number of votes calculated for Uhuru Kenyatta from all Forms 34 was 17,675.

On Form 36, Kenyatta is reported to have won 18,489. Where did 814 extra votes come from? In Turkana North, the Form 34 total for Kenyatta was 3,567, but Form 36 showed Kenyatta to have won 3,507 votes, which is 60 less votes than what was on the primary document.

Such discrepancies can be found for almost all the candidates’ results.It is also worth noting that it was impossible to fully observe the scrutiny process, because each station simultaneously reviewed multiple constituencies.

This meant that observers had to somehow keep an eye on all the different constituencies at the same time. Since there were only 10 observers from each side, it is not hard to see how being able to keep up with all the forms was difficult.

Also, each station was equipped with a large screen, which was meant to enhance transparency by showing the data being entered by judicial staff. Since more than one constituency was being entered at each station, though, not all data entry was transmitted to the screen.

Turnout beyond 100 per cent

It is now clear that the judiciary staff never carried out a re-tallying of the 22 contested polling stations as ordered. Instead, they simply reviewed and entered the data from the contested stations’ Forms 34 and Forms 36 into its spreadsheet.

In this way, then, it was no different from the general scrutiny of the forms. Inexplicably, its report on these stations highlighted only five as problematic. This was surprising, given that a simple calculation using the recorded figures showed four important anomalies.

First, in 16 polling stations, voter turnout as calculated using Form 34 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 301 per cent.

Second, in 18 polling stations, voter turnout as calculated using Form 36 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 450 per cent.

Third, and even more striking, was that there were two polling stations with voter turnout in excess of 100 per cent when using the green book, which the IEBC argued was the actual, complete register. One polling station in this category showed a 238 per cent turnout.

Lastly, it is only in one polling station that the sum of registered voters in the principal register and the special register equaled the number recorded in the green book.

Since the Respondents explained that the principal and special registers (as well as 12 trainees) together totaled the green book, the observed discrepancies are highly problematic and clearly undermine the Respondents’ claim. It will be interesting to see how the Supreme Court judges explain this when they release their judgment in less than 10 days’ time.

Dr Seema Shah was an observer for the Africa Centre for Open Governance during the scrutiny of results documents ordered by the Supreme Court

Numbers In The Voter Registration Just Won't Add Up - The Star, April 13, 2013

admin — Mon, 15 Apr 2013 06:57:54 +0000

Numbers do not lie. One lawyer said as much as he stood before the Supreme Court last week. “You can’t argue with the arithmetic.” It is unclear whether or not he realised the import of his words, for a look at the numbers referred to (but never explained) in court is quite revealing.

As the bedrock of a free and fair election, the voter registry is a crucial part of any electoral process. A legally verified and finalized list of eligible voters is vital, not only because it provides a check on fraud but because it provides a necessary constant for societal self-reflection.

The constant the voter registry provides allows for an analysis of voter turnout, overall and geographically distinct voting patterns and trends over time. A sound and reliable voter registry can help a society understand its own political behaviors, track these trends over time and space, and plan for the future.

It is thus not hard to see why the voter register was at the heart of the Kenyan Supreme Court case. Indeed, simple mathematics can help us to determine the validity of the claims the Independent Electoral and Boundaries Commission (IEBC) made with regard to the voter register.

First, the IEBC’s provisional register, which was compiled after the close of the voter registration process on December 18, 2010, contained 14,337,399 voters.

In court last week, the Commission claimed that there is also a special register, made up of 36,236 Kenyans who were eligible to vote but whose biometrics could not be captured because of physical disabilities.

In addition, the IEBC explained that there were 12 trainees, who also were not initially registered. Together, the provisional register, the special register and the 12 trainees total 14,373,647 voters.

After the closure of the register on December 18, 2012, there was no legal way to add any more voters. Only a subtraction could have been countenanced to address instances of double registration or the identification of other ineligible Kenyans. Indeed, the IEBC claimed that it had deleted some 20,000 names from the provisional register, because those constituted cases of people who had registered more than once.

So, the provisional register less the 20,000 should equal 14,317,399. On top of this, the IEBC said that it had to add the special register and the 12 trainees, which should come to a total of 14,353,647.

Why, then, is the total number of registered voters as announced on March 9, 2013 by the IEBC actually 14,352,536? Actually, the figure announced by IEBC on March 9, 2013 and the 12 trainees together is equal to the principal register.

The “special” register does not seem to fit in at all. This final number, announced on March 9, is still 1,111 voters less than what the total should be, according to the IEBC’s own explanation.

What is more important, however, is that this explanation still does not clarify why ALL these voters were not gazetted in the principal register in February.

If it is true that the IEBC wrote down the names of everyone who registered in the “green book,” including those with and without biometrics, shouldn’t ALL the names have been included in the legally gazetted register?

Also, even if the IEBC can explain the 1,111 unaccounted for voters, what explains the fact that at the level of the polling station, the sum of the principal and special registers do not equal the green book number?

Out of the 22 contested stations, there was only one station in which the numbers added up. Second, what explains the political parties register, which was issued shortly before the election?

That list included 14,336,842 voters, which is completely out of the range of the other numbers. Why would the register become a moving target? Third, and perhaps more worrying than the plethora of registers, is the fact that even though additions and subtractions have impacted all areas in the country, there does appear to be a pattern with respect to some of the most striking changes.

Additions and subtractions were made to the register all over the country. Aggregating these changes by province shows that 68,836 voters were added to constituencies in Central Province and Rift Valley, while 14,122 subtractions were made in Nyanza and Coast provinces.

This pattern undermines the argument that the irregularities were clerical, random and scattered across the country. During the hearing of the petition challenging the validity of the election, one lawyer attempted to explain this by claiming that voter registration, as laid out in the Constitution, is a “continuous process.”

What he omitted from his explanation, however, is the fact that the Elections Act states that voter registration ceases for the 60-day decision 2013: Aggregating these changes by province shows that 68,836 voters were added to constitu- encies in Central Province and Rift Valley, while 14,122 subtractions were made in Nyanza and Coast provinces.

This pattern undermines the argument that the irregularities were clerical, random and scattered across the country. period before the election. Fourth, it is interesting to note that if the original numbers in the December register had been used, certain constituencies would have experienced a voter turnout in excess of 100 per cent.

For example, the voter turnout would have exceeded the registered voters in Pokot South (109%), Loima (106%), Samburu North (105%), Kajiado South (103%), and Sigor (102%). The revised numbers as per the February register make the turnout figures a bit more reasonable, with Pokot South at 93 per cent, Loima 80 per cent, Samburu North 88 per cent, Kajiado South 91 per cent and Sigor, 92 per cent.

They are still incredibly high when placed in the context of the history of turnout in these areas. All of this comes into much sharper focus when we look closely at certain key areas.

Take Turkana Central, where turnout was about 53 percent in 2002. In this election, the IEBC reported turnout in the constituency to have reached 74 percent, a jump of 21 percentage points.

Notably, this constituency also experienced 8,516 additions in voters between December and February, the most of any constituency in the country. When comparing Forms 34 from the following three polling stations in Turkana Central to the number of registered voters published in the principal register in February, there are some significant discrepancies.

In each of the following polling stations, the number of registered voters recorded on Form 34 is more than what the IEBC published. If the number published by the IEBC had been used, these polling stations would have shown voter turnout in excess of 100 percent.

This pattern can be seen in other areas as well. In a polling station in Tharaka, for instance, the original number of registered voters had been written over with another number on the Form 34.

The new number is larger, such that voter turnout does not exceed 100 percent. A look at the comments from the presiding officer on the form, however, is telling.

The presiding officer wrote, “The number of voters was higher than the registered voters. This was authorised by the RO* as he argued that they were registered at Constituency level” (*RO is Returning Officer).

A close look at the form shows a three-digit number beginning with 12. The last digit is not clear, but whatever it actually was, it clearly had to have been less than 166, the number written over the original figure.

This clearly leaves many questions unanswered. It’s now a waiting game, as the public anticipates the Supreme Court’s detailed judgment. We will have to see how the Court managed to resolve the existence of no less than six different registers and constantly changing voter totals – and then decide if we can also resolve it ourselves.

Dr Seema Shah was part of the Africa Centre for Open Governance observation team during the hearing of the presidential election petition.

Africog launches website on electoral malpractices - Daily Nation, April 12, 2013

admin — Fri, 12 Apr 2013 20:51:07 +0000

A website with evidence detailing electoral malpractices of the March 4 General Election which the Supreme Court ruled against during the petitions has been launched.

Ms Gladwell Otieno and Zahid Rajad from Africa Centre for Open Governance (Africog) have partnered with Inform Action Director Mr Maina Kiai to launch the 'People's Court' (www.thepeoplescourt.co.ke) where evidence on electoral malpractices will be uploaded.

The public would also have a forum to post their experiences during the elections.

The public would also be allowed to criticise and recommend new ways of conducting a free and fair election which the Independent Electoral and Boundaries Commission (IEBC) can adopt.

“This is not about individuals but the elections process. The website will open a public debate with the aim of strengthening our democracy,” said Africog's Executive Director, Ms Otieno.

The website has been launched ahead of a detailed finding to be released by the Supreme Court on its ruling during that upheld the election of Uhuru Kenyatta as Kenya's fourth president.

The Supreme Court ruled that the election was free, fair and transparent.

The court dismissed petitions by Africog and Cord's presidential candidate Raila Odinga challenging the validity of the elections and the victory of Uhuru Kenyatta.

Africog said it would upload a 900 page document detailing evidence on alleged electoral malpractices it managed to gather in its monitoring of the electoral process for the people to decide.

“Supreme Courts could be wrong and they have been wrong in the other jurisdictions such as in the US. That is why we want an open debate on this issue to allow the public to decide for themselves what took place,” said Mr Kiai.

Ms Otieno said the intention of kick-starting the debate was not to change the decision by the Supreme Court but to initiate debate among Kenyans about their institutions

AFRICOG unveils people's court website - The Star, April 12, 2013

admin — Fri, 12 Apr 2013 14:10:03 +0000

The Africa Centre for Open Governance (AFRICOG) has launched a website that will host contributions from members of the public on election irregularities following the March 4 election.

AFRICOG who were petitioners in the Supreme Court process that challenged the announcement of President Uhuru Kenyatta as the winner of the March 4 poll, have said that the website dubbed The People’s Court, will serve as a hub for evidence of electoral offences.

AFRICOG has added that it will be calling on the Director of Public Prosecutions Keriako Tobiko to investigate these offences.

The site www.thepeoplescourt.co.ke will also have the evidence presented by the civil society group to the Supreme Court during the hearings on the election petitions.

The group has encouraged members of the public to send in their experiences during the election as well as evidence on any evidence on any electoral irregularities to the numbers 30313 or 20133 or email evidence@thepeoplescourt.co.ke

Link to the story

Africog launches website on electoral malpractices - Daily Nation, April 12, 2013

admin — Fri, 12 Apr 2013 11:45:07 +0000

A website with evidence detailing electoral malpractices of the March 4 General Election which the Supreme Court ruled against during the petitions has been launched.

Ms Gladwell Otieno and Zahid Rajad from Africa Centre for Open Governance (Africog) have partnered with Inform Action Director Mr Maina Kiai to launch the 'People's Court' (http://www.thepeoplescourt.co.ke) where evidence on electoral malpractices will be uploaded.

The public would also have a forum to post their experiences during the elections.

The public would also be allowed to criticise and recommend new ways of conducting a free and fair election which the Independent Electoral and Boundaries Commission (IEBC) can adopt.

“This is not about individuals but the elections process. The website will open a public debate with the aim of strengthening our democracy,” said Africog's Executive Director, Ms Otieno.

The website has been launched ahead of a detailed finding to be released by the Supreme Court on its ruling during that upheld the election of Uhuru Kenyatta as Kenya's fourth president.

The Supreme Court ruled that the election was free, fair and transparent.

The court dismissed petitions by Africog and Cord's presidential candidate Raila Odinga challenging the validity of the elections and the victory of Uhuru Kenyatta.

Africog said it would upload a 900 page document detailing evidence on alleged electoral malpractices it managed to gather in its monitoring of the electoral process for the people to decide.

Ms Otieno said the intention of kick-starting the debate was not to change the decision by the Supreme Court but to initiate debate among Kenyans about their institutions.

Crucial timelines from day of polls to Supreme Court ruling - The Standard , March 31, 2013

admin — Sun, 31 Mar 2013 09:24:38 +0000

Nairobi,KENYA: The possibility of the presidential election results being contested in the Supreme Court was first reflected on March 7, when CORD presidential running mate Kalonzo Musyoka alleged the results were being doctored.

Kalonzo also called for calm and stressed that his remarks about the March 4 poll were not a call to mass action and that the party was committed to the rule of law.

“We have a number of concerns and we have evidence of results being doctored,” said the VP.

On the same day, the Independent Electoral and Boundary Commission (IEBC) through chairman Issack Hassan denied the claims.

The rigging claims were followed by dismissal of an attempt to stop IEBC’s manual tallying of results at Bomas by the High Court, which ruled it had no jurisdiction to hear any petition touching on presidential election.

Justices Isaac Lenaola, Weldon Korir and David Majanja dismissed an application by the African Centre for Open Governance (Africog), saying although the group had raised serious issues, it cannot take away the jurisdiction of the Supreme Court.

Below are the timelines on how things shaped up from March 4.

March 4

Kenyans go out to vote in the General Election.

March 6

IEBC resorts to manual tallying, calls the 290 returning officers to Nairobi.

March 7

CORD presidential running mate Kalonzo Musyoka alleges that vote results had been doctored. Kalonzo also called for calm.

March 8

African Centre for Open Governance (Africog)’s bid to stop tallying of the presidential ballot at Bomas is dismissed by the High Court.

March 9

IEBC declares Uhuru Kenyatta as President-elect and William Ruto as Deputy President-elect.

Uhuru delivers a victory speech at the Catholic University of Eastern Africa.

On the same day, Raila Odinga responds to IEBC declaration.

March 12

CORD files a petition seeking orders to compel the electoral commission and mobile operator Safaricom to release crucial documents required to file a presidential petition.

Head of the Raila Odinga Secretariat Eliud Owalo filed the petition at the Milimani Law Courts.

March 16

CORD petition filed by lead counsel George Oraro on behalf of Prime Minister Raila Odinga.

On the same day, Raila addresses the nation before filing petition.

March 19

High Court orders the IEBC and Safaricom to release election data to CORD.

Offering new figures to back up his claim, CORD leader Raila Odinga says the final tally was manipulated after he garnered 5.7 million votes against Uhuru’s 4.5 million.

Uhuru tells Raila to stop politicising the petition and wait for the verdict of the Supreme Court.

March 20

Uhuru and Ruto file responses to CORD petition.

Uhuru says IEBC conducted a free and fair poll.

On the same date, Chief Justice Willy Mutunga direct parties not to comment on the case outside court.

March 22

IEBC tells the Supreme Court to throw out the petition filed by Prime Minister Raila Odinga challenging the election of Uhuru Kenyatta as president.

March 23

Raila files response to the replying affidavits by the respondents.

March 25

Pre-Trial hearing starts at the Supreme Court

Court approves application by the Attorney General Githu Muigai to act as ‘a friend of the court’. It however turns down a similar request by the Law Society of Kenya (LSK). Court consolidates the three petitions and allows the petition filed by CORD’s Raila Odinga to be heard first.

Supreme Court orders scrutiny of Forms 34 from all 33, 400 polling stations and all forms 36 used in tallying of presidential votes. The court also orders the re-tallying of presidential votes in 22 polling centres.

March 26

Pre-trial conference enters second and final day

Court rejects application by Odinga for a forensic audit of the Independent Electoral and Boundaries Commission (IEBC) electronic tallying system.

Court also expunges a 900-page affidavit filed by Odinga because it was presented too late to allow respondents-IEBC, president-elect Uhuru Kenyatta and Deputy president-elect William Ruto, enough time to peruse it.

Re-tallying of votes as ordered by the Supreme Court begins at the Kenyatta International Conference Centre.

March 27

Hearing of the presidential election petition begins.

Key issues to be determined by the court include whether president –elect Uhuru Kenyatta and his deputy-elect William Ruto were validly elected, and whether the presidential poll on March 4 was conducted in a free, fair, transparent and credible manner.

The court would also determine whether rejected votes ought to have been included in the determination of the final tallies of votes in favour of the presidential candidates.

Court rejects application by the African Centre for Open Governance (Africog), represented by lawyer Kethi Kilonzo, to compel IEBC to produce the manual register used during the March 4 elections, on grounds that it was filed late.

Raila’s lawyer George Oraro begins oral submissions to the court.

March 28

Oraro concludes submissions to the court.

Lawyers Fred Ngatia, Katwa Kigen and Mohammed Nyaoga, representing President –elect Uhuru Kenyatta, deputy president-elect William Ruto and IEBC, respectively, respond to the petitioners.

Attorney General Githu Muigai makes submissions to the court.

Parties conclude oral submissions to the court.

Re-count of votes in 22 polling stations completed.

A review of forms 34 and 36 as directed by the court is also finalized.

March 29

Court hears arguments from parties on results of the re-tallying of votes in 22 polling stations as ordered during the pre-trial hearing. Court adjourns

March 30

The Supreme Court delivers the much-awaited presidential petition verdict.

Link to the story

Kenyans await Supreme Court ruling - The Standard, March 30, 2013

admin — Sat, 30 Mar 2013 09:24:38 +0000

NAIROBI; KENYA: History is in the making on Saturday as Kenya’s most powerful Bench prepares to rule on three petitions over the March 4 presidential election.

The six judges will decide whether to uphold or invalidate the outcome of the election, sending President-elect Uhuru Kenyatta to State House or back to the ballot box.

Millions of Kenyans, Africans and others in the international community, will today be watching the Supreme Court as it makes this landmark decision. This is the first presidential petition in Kenya’s history to be heard and determined on issues and evidence. Previous ones were dismissed on technicalities.

The six Supreme Court judges on Friday heard final remarks from petitioners and respondents on a partial re-tallying carried out this week. The check found ten of 18,000 Forms 34 requested were missing. There were also errors in tallies on some Forms 34 (presidential election totals from polling streams) and aggregates on Forms 36 (from all polling centres). These issues roused heated debate on whether they prove the election was flawed.

The ruling will be the culmination of a tight week of sittings to hear arguments on the issues in the petitions, two of which seek nullification of the outcome.

CORD candidate Raila Odinga filed the main petition arguing Uhuru, the Jubilee Alliance candidate, was declared winner in an election marred by fraud. The Prime Minister is challenging virtually everything from the purchase of electronic equipment, to registration of voters, actual voting, transmission of results, and tallying at the National Tallying Centre, at Bomas of Kenya.

He wants the entire process invalidated and fresh elections held. He also wants Independent Electoral and Boundaries Commission (IEBC) commissioners held legally accountable for electoral offences.

A second petition by civil society activists linked to Africog also seeks to have the election invalidated over irregularities. A third, by a Jubilee activist and two others, seeks an opinion on whether rejected votes should count in the election.

The IEBC, its chairman Issack Hassan, Uhuru and Deputy President-elect William Ruto have dismissed the petitions as “self-seeking” and urged the court to ignore “clerical errors” and uphold the outcome of the elections.

Phones on

Even as the Six Supreme Court judges closed the proceedings on Friday, they could not estimate when they would deliver the judgement.

“Keep your phones on because you don’t know when we will summon you,” Court president and Chief Justice Willy Mutunga told lawyers for all parties. The court had just five days to hear and determine the consolidated petitions after holding a pre-trial conference on Monday. Due to time constraints, the judges are expected to deliver a brief judgement going straight to their declarations and then issue detailed reasons later as allowed by the law.

On Tuesday, the judges pronounced the only four issues they would be determining today and asked the lawyers to use all means to support or defend their cases on these matters.

One issue is whether Uhuru and Ruto were validly elected and constitutionally declared winners by IEBC. The other issue is whether the presidential election was free, fair and transparent, and whether it was in compliance with the Constitution and all other relevant laws.

The third issue is whether rejected votes should be included in determining the final tally of votes in favour of each candidate and the fourth is which of the orders sought the court can issue.

The judges also set aside 15 hours spread in two days within which to hear all the oral submissions. Lawyers had to keep strictly to allocated timelines watched from two digital clocks in the courtroom. The lawyers opted not to call any of the witnesses who had filed dozens of affidavits either in support of in rebuttal of the petitions.

The court also imitated its own scrutiny of all the Forms 34 and 36 used in the presidential elections and re-tallying of results on 22 out of 33,400 polling stations. Reports of the exercise were submitted in court on Friday.

Petitioners argued that the reports had satisfied their claims that the elections were not free and fair. But the respondents said discrepancies disclosed had been explained in their submissions or were “clerical error”.

The main contention revolves around the voter register, which some petitioners say was inflated by the IEBC in favour of the President-elect.

They claim that more people were registered after the closure of the registration deadline on December 18, last year. The commission, however, argues that it prepared a special register for those whose biometric data could not be captured by the BVR kits for various reasons. This register had over 36,000 persons whose constitutional right to vote could not be breached.

Lawyers were in agreement that if the voter register were defective, the declaration would affect all other elections of county representative, women representative, members of the Senate, National Assembly and the governors.

Constitutional crisis

Lawyers for respondents claimed the orders sought would throw the country into a constitutional crisis. This is because the register was used to conduct elections for all the other candidates for other positions.

On Friday Mutunga said the judges were happy with what had come from the lawyers.

“I can say our Bar is one of the best,” he remarked at the close of the proceedings. “You have really helped us a lot.”

Link to the story

This is why Africog went to court - The Standard, March 30, 2013

admin — Sat, 30 Mar 2013 09:24:38 +0000

NAIROBI, KENYA: Africa Centre for Open Governance ( Africog) filed a petition to challenge the presidential elections results and wanted the Supreme Court to invalidate the results as electoral malpractices had been committed.

The organisation stated the presidential results that were announced at various counties were different from those declared by the Independent Electoral and Boundaries Commission (IEBC) at the national tallying centre.

Through Kethi Kilonzo, Africog narrowed down to Nyeri and Bomet County tallying centres to prove that the results of the presidential elections were indeed altered.

Kethi played video clips of the announcements of the presidential results in the two counties, which she said was different from those finally announced by the Issack Hassan-led commission and reflected in Form 36.

She said for example that after the vote count, President-elect Uhuru Kenyatta garnered 317,881 votes from Nyeri County, which was announced by the county returning officer.

However at the Bomas of Kenya, the IEBC gave Uhuru 318,880 votes, which is an increment of 999 votes.

However, CORD presidential candidate Raila Odinga who scored 6,075 votes as announced at the county level had his votes reduced to 5,638 according to results announced by the IEBC.

According to Kethi, Raila was not the only one, James ole Kiyiapi , Martha Karua and Musalia Mudavadi lost votes and the only candidate who then benefited from the difference were the President-elect and Peter Kenneth.

Kilonzo also said in Othaya constituency, Uhuru garnered 42,431 votes, which were inflated at the Bomas of Kenya to 42,957.

She also poked holes in the IEBC register of voters insisting that it was inaccurate and not a reflection of the principal register published before the election.

According to her, Form 36 obtained from the electoral commission showed that the number of registered voters stood at 13,557,365.

She, however, maintained that the principal register published by the IEBC on February 18 had 14,352,533 registered voters.

Link to the story

Africog: Tallying centres, Bomas results differed - The Standard, March 28, 2013

admin — Thu, 28 Mar 2013 11:24:38 +0000

Kenya: The Supreme Court has been told of how results from certain constituencies differed from those announced at the main tallying centre at Bomas of Kenya.

Africa Centre for Open Governance (Africog), who are parties to the case that is challenging the presidential elections results, urged the court to invalidate the results as electoral malpractices had been committed.

The organisation maintained that the presidential results that were announced at various counties were different from those declared by the Independent Electoral and Boundaries Commission (IEBC) at the national tallying centre.

In an eloquent presentation made by lawyer Kethi Kilonzo, Africog narrowed down to Nyeri and Bomet County tallying centres to prove that the results of the presidential elections were indeed altered.

She said for example that after the vote count, President-elect Uhuru Kenyatta garnered 317,881 votes from Nyeri County, which was announced by the county returning officer.

However at the Bomas of Kenya, the IEBC gave Uhuru 318,880 votes, which is an increment of 999 votes.

However, CORD presidential candidate Raila Odinga who scored 6,075 votes as announced at the county level had his votes reduced to 5,638 according to results announced by the IEBC.

“He (Raila) is not the only one, (James ole) Kiyiapi lost votes, (Martha) Karua lost votes, Musalia Mudavadi lost votes. Even the little that you have would be taken away from you. The only candidate who then benefited from this difference is the President-elect and Peter Kenneth,” maintained Ms Kilonzo in her submissions yesterday.

Kilonzo also said in Othaya constituency, Uhuru garnered 42,431 votes, which were inflated at the Bomas of Kenya to 42,957.

“My lord if you have 291 Constituencies and you give a candidate only a 100 votes more, the declaration of the President-elect would not look the way it is today,” she submitted.

She also poked holes in the IEBC register of voters insisting that it was inaccurate and not a reflection of the principal register published before the election.

Rejected votes

According to her, Form 36 obtained from the electoral commission showed that the number of registered voters stood at 13,557,365.

She, however, maintained that the principal register published by the IEBC on February 18 had 14,352,533 registered voters.

“My lords if one person outside that principal register was allowed to vote, they disenfranchised the Kenyan voters who came out to register as voters,” Kilonzo said.

She also faulted the electoral commission for having different registered voters for parliamentary and presidential elections in different parts of the country.

Giving the example of Makueni County, Kilonzo pointed out that the number of registered voters for presidential election stood at 64,525 while that of voters registered to elect MPs was 64,976.

She maintained that according to the Election Act, for one to take part in presidential election, one must be registered to vote in a parliamentary election. She said according to Article 86 of the Constitution, whatever voting method is used, it must be verifiable, simple, accurate, accountable and secure as enshrined in the law.

Link to the story

Lawyers steal election petition show - The Daily Nation, March 28, 2013

admin — Thu, 28 Mar 2013 09:24:38 +0000

The ongoing legal battle over presidential poll results has thrust into limelight lawyers who were least known to many Kenyans.

From this group, Kethi Kilonzo and Isaac Aluochier stand out.

Soft-spoken and articulate, Ms Kilonzo has captured the attention of viewers of the Supreme Court proceedings.

The daughter of former Education minister and Makueni Senator Mutula Kilonzo represents African Centre for Open Governance (Africog) in the landmark petition. The lobby and Prime Minister Raila Odinga are challenging the declaration of Mr Uhuru Kenyatta as President-elect.

Arguing her client’s case for the first time on Wednesday, Ms Kilonzo’s articulation and relaxed mien before judges of the highest court in the land and senior lawyers left many a viewer in awe.

“I dare say the only logical conclusion is to invalidate the results,” she told the judges. “What the Independent Electoral and Boundaries Commission did was a complete sham and fraud”.

That has been her style and substance — firing her evidence and concluding with a punch. Even before she had left the floor, her name had become a sensation on social media.

Ms Kilonzo has been a partner at Kilonzo & Company Advocates for 10 years. His father established the firm in 1975. Other partners are Mr Mutula Kilonzo Junior, her brother, and lawyer Johnson Shijenje. Mr Kilonzo Junior has high regard for his sister.

“My younger sister is disciplined, intelligent, hard-working, responsible, and an excellent partner at the law firm,” he told the Nation on Thursday.

And when we asked Senator Kilonzo what he thought of his daughter, he replied: “God’s gift.”

The Africog petition is Ms Kilonzo’s most significant matter, but she has also prosecuted other high profile cases.

She, for instance, represented retired President Daniel Moi when former Nyayo House detainee Otieno Mac’Onyango sued him for illegal detention. Although the court awarded Mr Mac’Onyango Sh20 million in damages, Ms Kilonzo succeeded in absolving the former Head of State of personal responsibility.

At the East African Court of Justice, she has represented victims of atrocities allegedly committed by Kenyan military in Mount Elgon. The atrocities were committed during the crackdown on Sabaot Land Defence Forces militia.

When Kenyan political parties disagreed over nominations to the East African Legislative Assembly and a suit was filed at the regional court, she was among advocates who were instructed.

Ms Kilonzo holds a Master of Laws degree from the University of Nairobi, and according to her firm’s website, she specialises in litigation, legal drafting, legal research, conveyancing and legal critiques.

On his part, Mr Aluochier, who is a voter in Migori County, caught the attention of many due to his eloquent and articulate submission before the six judges.

He was seeking to be enjoined in the case as an interested party but his bid was dismissed by judges, who argued that he did not give practical reasons.

None of the parties in the case was also ready to enjoin him.

Speaking to the Nation after his case was dismissed, Mr Aluochier said although he was not happy with the outcome, there was nothing he could do as the Supreme Court was the highest in the land.

“I am not happy because I was not allowed to participate in the proceedings,” he said. He claimed his case was dismissed without any reason.

He, however, vowed to continue seeking for justice for Kenyans. “Another opportunity will arise,” he said.

Before Thursday’s blow, Mr Aluochier has lost a bid to challenge the candidatures of the then front-runners in the top seat race.

He had argued that Mr Kenyatta, Coalition for Reforms and Democracy leader Raila Odinga, Eagle Alliance’s Peter Kenneth and Amani’s Musalia Mudavadi were not fit to vie for the presidency due to integrity issues facing them, and that the electoral body should not accept their nomination.

However, the application was dismissed with the court averring that presidential election was a process that would end after the election.

Despite the loss, he did not give up and had returned with the same application after the March 4 polls but was unable to raise Sh1.5 million required to file the petition.

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Kenyas Wahlleitung muss über die Bücher - Neue Zurcher Zeitung , March 27, 2013

admin — Wed, 27 Mar 2013 09:24:38 +0000

Das kenyanische Oberste Gericht hat am Montag, am ersten Tag der Anhörung von Einsprachen gegen die Ergebnisse der Präsidentenwahl vom 4. März, eine Stimmennachzählung in 22 der über 32 000 Wahllokale angeordnet. Ein so früher Entscheid war nur von wenigen erwartet worden; das Gericht hat bis Samstag Zeit, über die Gültigkeit der Wahl zu urteilen. Die Entscheidungsfreudigkeit des in einer neuen Verfassung geschaffenen Gremiums zeigt, dass die Obersten Richter ihre Verantwortung wahrnehmen und einer Reihe von Unregelmässigkeiten bei den Wahlen nachgehen wollen.

Aufgeblähtes Wählerregister

Die angeordnete Nachzählung sollte nach dem Erlass des Gerichts bis Mittwoch abgeschlossen werden. Sie könnte einen ersten Aufschluss darüber geben, ob Verdächtigungen zutreffen, nach denen die Präsidentenwahl manipuliert wurde.

Nach den offiziellen Ergebnissen der Independent Electoral and Boundaries Commission (IEBC), der Wahlleitung, hatte Uhuru Kenyatta vom Parteienbündnis Jubilee die Präsidentenwahl mit einem Stimmenanteil von 50,07 Prozent vor Raila Odinga von der Coalition for Reform and Democracy (Cord) gewonnen. Odinga kam auf 43,3 Prozent. Kenyatta übertraf das absolute Mehr, das einen entscheidenden zweiten Wahlgang hinfällig macht, nur sehr knapp um 8600 Stimmen.

Die Nachzählung betrifft Wahllokale, in denen laut den separaten Einsprachen Odingas und des Africa Centre for Open Governance (Africog), einer Speerspitze der kenyanischen Bürgerbewegung, die Zahl der abgegebenen Stimmen diejenige der registrierten Wähler übertraf. Dass die IEBC ein aufgeblähtes Wählerregister verwendet habe, ist der Hauptvorwurf der Interpellanten. Er wird durch unabhängige Beobachtungen erhärtet. So errechnete die französische Journalistin Marie Wolfrom aufgrund einer Analyse der Register in sämtlichen 290 Wahlkreisen, dass die IEBC nach der Schliessung der Wahlregister im Dezember die Wählerlisten in undurchsichtiger Weise abänderte. Dabei wurden insgesamt über 152 000 Wähler «gelöscht» und rund 165 000 addiert.

Der Vorsitzende der IEBC, Hassan, blieb bisher eine Erklärung für die Unregelmässigkeiten schuldig. Er lehnte Forderungen der Interpellanten nach einer Offenlegung des zugrunde gelegten Hauptregisters wiederholt mit der Begründung ab, es sei nach Wahllokalen aufgespalten worden und nicht rekonstruierbar.

James Gondi, einer der Autoren der Einsprache von Africog, hält die Behauptung für unglaubwürdig. Das Gesetz schreibe vor, dass die Wahlleitung ein Hauptregister erstellen und bei Bedarf offenlegen müsse, sagt der Jurist und Bürgerrechtler. Dieser Argumentation folgte am Montag auch das Oberste Gericht; es ordnete die Präsentation des Wählerregisters an.

Die Stimmung schlägt um

Die Stimmung in der kenyanischen Öffentlichkeit hat sich in den vergangenen zwei Wochen gründlich verändert. Am Wahltag vom 4. März und an den darauffolgenden Tagen, an denen zunächst die elektronische Zählung ausfiel und daraufhin die manuell addierten Ergebnisse zäh und tröpfchenweise bekanntgemacht wurden, hatte Erleichterung vorgeherrscht, dass der Urnengang friedlich verlaufen war. Das Trauma der politischen Gewalt nach den Wahlen von Ende 2007 mit 1100 Todesopfern schien überwunden. Die Medien berichteten fast nur darüber und über den baldigen Einzug Kenyattas ins State House. Aber bald häuften sich Meldungen über Unregelmässigkeiten. Sie hinterliessen den Eindruck, dass die IEBC die Wahlen entweder grobfahrlässig organisiert hat oder – schlimmer noch – dass Mitglieder der Wahlleitung einem Wahlbetrug Vorschub geleistet haben.

Biometrische Wählererfassung

Ein gewichtiger Vorwurf betrifft das Versagen der elektronischen Systeme. Nach den letzten Wahlen vor fünf Jahren hatte eine unabhängige Untersuchungskommission unter der Leitung von Johann Kriegler, einem südafrikanischen Richter und Wahlexperten, Reformen vorgeschlagen. Sie sollten sicherstellen, dass in Kenya künftig glaubwürdige Wahlen durchgeführt und Gewaltausbrüche verhindert werden. Nach den Empfehlungen des Kriegler-Berichts sollten moderne Technologien genutzt werden, mit denen Ergebnisse überprüft werden können. Die IEBC schaffte denn auch mit grossem Aufwand Systeme z. B. zur biometrischen Erkennung von Wählern und für die Übermittlung der Resultate in einem eigenen Kommunikationsnetz an.

Am Wahltag versagten die Verfahren jedoch und wurden bald eingestellt. Als erst 16 Prozent der Ergebnisse ausgezählt waren, verzichtete die IEBC schliesslich auch auf die computergestützte Addierung der Resultate und griff – laut Kritikern vorschnell – auf manuelle Verfahren zurück. Laut James Gondi öffnete es zusammen mit den aufgeblähten Wählerregistern Manipulationen wie dem «ballot stuffing» (heimliches Vollstopfen von Wahlurnen mit gefälschten Wahlzetteln) Tür und Tor. Derartiger Betrug war bei früheren Wahlen verbreitet gewesen. Überprüfbar wären die Ergebnisse noch immer, aber die IEBC weigerte sich auch, Odingas Anwälten und Africog die Formulare herauszurücken, in welche die Wahlleiter in den 32 000 Wahllokalen alle Einzelergebnisse eingetragen und eine Kopie davon im Lokal angeschlagen hatten. Nur ein anderer Typ Formular, der aggregierte Ergebnisse enthält, wurde zugänglich gemacht. Am Montag ordnete das Oberste Gericht auch die Offenlegung aller primären Formulare an.

Computer spielen verrückt

Einen Hinweis auf Unregelmässigkeiten bei der Wahl geben nach Ansicht von Beobachtern auch die offiziellen Beteiligungszahlen. Die IEBC weist für einzelne Wahlkreise eine Teilnahme von über 90 Prozent der registrierten Wähler aus. Der Kriegler-Bericht von 2008 bezeichnet Wahlbeteiligungen von über 85 Prozent als unglaubwürdig. Bevor die elektronische Stimmenauszählung am nationalen Sitz der IEBC abgestellt wurde, waren ausserdem merkwürdige Computerfehler aufgetreten. So wurde die Zahl der ungültigen Stimmen «irrtümlicherweise» mit dem Faktor acht multipliziert. Dies gab Verschwörungstheorien Aufwind, nach denen zur Tarnung von Manipulationen Algorithmen in die Zählverfahren eingebaut worden waren.

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Manual tallying system to come under scrutiny - The Daily Nation, March 17 2013

admin — Sun, 17 Mar 2013 09:24:38 +0000

A civil society group joined the Coalition for Reform and Democracy in filing a separate petition at the Supreme Court to challenge the outcome of the March 4 presidential election.

However, the African Centre for Open Governance (Africog) said their petition is not to challenge the results or the declaration of Uhuru Kenyatta as president-elect but the process the Independent Electoral and Boundaries Commission (IEBC) used to tally the final results.

The organisation had filed a similar petition at the High Court a day after the IEBC resorted to manual tallying of presidential elections. But a three-judge bench of justices Isaac Lenaola, Weldon Korir and David Majanja dismissed the petition on grounds that the High Court lacked jurisdiction to determine issues concerning presidential elections and instead referred them to the Supreme Court.

Africog claims the electoral commission violated provisions of the Constitution which required them to conduct a transparent voter tallying process.

Through lawyer Harun Ndubi, the group argues that the failure of the poll body to transmit results electronically compromised the credibility of the result transmission process.

Manual system

Africog further alleges that IEBC contravened the Constitution by resorting to a manual system and ignoring the fact that voter turnout in many constituencies was recorded as being higher than that registered.

The civil group also argues that the commission failed in its duties by refusing to account for discrepancies in the rejected votes, and that the manual tallying process was shrouded in secrecy after party agents were thrown out.

The group is seeking a declaration that the IEBC violated the Constitution and electoral laws in reaching the final results.

Meanwhile, Chief Registrar of the Judiciary Gladys Shollei said elaborate plans have been made to ensure the petitions are heard and determined within the stipulated 14 days.

Ms Shollei said the six Supreme Court judges are likely to meet on Monday or Tuesday to go through the petitions and familiarise themselves with the issues raised.

“We have made plans for public participation. We will allow live coverage of proceedings and also have a big screen outside the courtroom. The judges are also prepared to make a determination within the stipulated time,” said Shollei.

She added it was unlikely the judges would give a long ruling, saying they would only give their decision on the final days and give the reasons at a later date.

She reiterated the rules and guidelines to be followed by the petitioners from the time they filed the petitions until the day of judgment, adding that the 14 days include weekends.

The petitioners deposited Sh1 million as security and an additional Sh550,000 for publicizing it and other costs. Ms Shollei has three days to publish the petitions in the newspapers; the petitioners have the same number of days to serve all the respondents.

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Cord has a strong case, says lead lawyer Oraro - The Daily Nation, March 16 2013

admin — Sat, 16 Mar 2013 09:24:38 +0000

The Coalition for Reforms and Democracy (Cord) has said it is confident of overturning the election of Uhuru Kenyatta as president.

Cord's lead lawyer George Oraro said the coalition has enough evidence to prove its case at the Supreme Court.

"We (Cord) have a strong case and are sure we are going to overturn IEBC (Independent Electoral and Boundaries Commission) move to declare Uhuru Kenyatta as President-elect," Mr Oraro said Saturday.

He said the IEBC had not provided all the information Cord needed but it had "sufficient evidence" to mount a strong case.

Mr Oraro said Prime Minister Raila Odinga is the petitioner in the case.

He named the respondents as IEBC, commission chairman Isaack Hassan, Mr Kenyatta and deputy-president elect William Ruto.

Mr Oraro said Cord has assembled five lawyers to argue its case before the Supreme Court. He said Cord was dissatisfied with the way vote counting was done and that party agents did not sign Form 36.

After court officials verified Cord's documents, the legal team was asked to deposit one million shillings as security and Sh550,000 for advertisement in local media.

Civil society group, AFRICOG, also filed a petition challenging the tallying process at the Bomas of Kenya.

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Court throws out petition to stop vote tallying - The Daily Nation, March 8 2013

admin — Fri, 08 Mar 2013 13:24:38 +0000

A bid to stop manual tallying of presidential results flopped after the High Court ruled that it has no jurisdiction to hear any petition touching on the top seat election.

Judges Isaac Lenaola, Weldon Korir and David Majanja on Friday dismissed an urgent application by African Centre for Open Governance (Africog), saying although the activists had raised serious issues, the High Court could not assume the jurisdiction bestowed upon the Supreme Court.

“Issues raised are not idle but should be pursued in the right forum. We have no reason to find we have jurisdiction to handle the matter since presidential election is not pegged on one single event but is a process,” ruled the judges.

Immediately after the ruling, the civil group through lawyer Harun Ndubi said it would take the court’s direction and file the petition at the Supreme Court.

In the petition, Africog had sought to stop the manual tallying of presidential poll results, claiming the electoral commission was violating provisions of the Constitution, which requires it to conduct a transparent vote tallying.

Mr Ndubi argued that the failure of the commission to transmit the results electronically had compromised the credibility of the process.

“IEBC is using a manual system to tally the votes contrary to the law and ignoring the fact that voter turnout in many constituencies is recorded as being higher than those registered,” he said.

The three judges first set out to determine whether they had jurisdiction over the dispute after the activists claimed High Court could determine the case.

Mr Ndubi argued that the court indeed had the jurisdiction to stop the tallying since their concern was not to challenge the outcome, but the need to follow the laid down procedure.

“This is not an election petition challenging the outcome of results but a request brought under Article 35 of the Constitution regarding the failure of the commission to tally and verify the votes at the centres,” he said.

The commission through lawyer Paul Nyamodi opposed the application, saying any issue touching on the presidential election is a preserve of the Supreme Court.

Mr Nyamodi argued that although the application was not a petition challenging the results outcome, it was misplaced since it questioned the process of presidential elections.

“Presidential election is not an event but a process that deals with all issues arising from nominations. The judges must down their tools and dismiss the application or refer it to the proper court,” he said.

The civil group argued in the application that the commission had failed in its duty by refusing to account for the discrepancy in rejected votes.

It sought a court order directing IEBC to start tallying presidential results afresh, and that it revives and use the electronic tallying system.

In the event that the commission would have announced the results, the activists wanted a restraining order stopping IEBC from gazetting the official results.

They claimed that the manual tallying had been shrouded in secrecy after party agents were thrown out and that unless the court intervened, the results would not be fair and transparent.

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Group files petition to stop Kenya vote count - The Daily Nation , March 8, 2013

admin — Fri, 08 Mar 2013 09:24:38 +0000

A three judge bench has been appointed to hear and determine a petition filed by the Africa Centre for Open Governance (Africog) to stop the tallying of votes in Kenya’s elections.

The judges will hear the petition at the High Court in Nairobi, Africog’s executive director Gladwell Otieno told the Nation.

Justices Isaac Lenaola, David Majanja and Weldon Korir are scheduled to hear the petition in Nairobi.

“We are raising concerns about the validity of the entire (vote tallying) process,” she said in a telephone interview.

The failure of the electronic transmission process compromised the tallying and the same should be done afresh through verification of results using the primary forms from the polling stations, she added.

The petition has been filed against the Independent Electoral and Boundaries Commission (IEBC) and its chairman Isaack Hassan.

The judges have said they will first address the issue of jurisdiction and will issue a ruling on the matter at 3.30pm

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