Lawyer Fred Ngatia, acting for President Uhuru Kenyatta. [Photo/ Courtesy]
Today, Tuesday, is the last day that the Supreme Court hears submissions on Raila Odinga's petition, which is challenging IEBC's declaration of Uhuru Kenyatta as president-elect. Below is the latest of what's happening.
Security features 9:28pm: Paul Muite, "It’s a requirement of law that forms have security features.”
Invalidate Uhuru’s win9:22pm: Forgery has been used in various ways. He questions why the IEBC servers are in France and not in Kenya, asking the court to invalidate Uhuru Kenyatta’s win.
Orengo withdraws 9:18pm: CJ Maraga asks lawyer Orengo to withdraw his report. Orengo, Raila’s lawyer, withdraws his report.
Ngatia opposes Orengo’s ‘new evidence’9:15pm: Paul Ngatia “This is a new document that seeks to introduce new evidence. I don’t even know what is in the second and third document.”
5 million votes9:11pm: Orengo’s conclusion,”5 million votes were affected the by irregularities we have found.”Paul Muite, IEBC’s lawyer, accuses Orengo of introducing new documents before the court. "This (files) should be disregarded and withdrawn."
‘Chebukati’s account deleted data’9:08pm: Orengo, “The account of the chairman (Wafula Chebukati) was being used for deletion of information in the (IEBC) database, our experts have told us.” “The logical conclusion is that you (judges) cannot ignore the reports.”
‘Can't believe what I am seeing’9:01pm: “More than 56 forms did not have watermarks as a security feature” — Orengo. “32 forms were not signed by agents. 189 forms were not filled — they did not have handover notes.”Orengo adds: “I can’t believe what I am seeing”
Orengo presents IEBC report 9:00pm: Lawyer James Orengo, acting for Raila Odinga, tells the court that the report from IEBC shows that the election was shambolic.
Court resumes8:58pm: Supreme Court judges have returned to the court, two hours after they were set to begin hearing. CJ Maraga“We couldn’t start at 7pm for obvious reasons. The reports were not ready. Now they are.”
8:05pm: It is more than 1 hour since the court was expected to resume the hearing of the presidential petition.
Court takes a break5:45pm: Chief Justice David Maraga adjourns the court hearing, until 7pm when a report on IEBC servers is presented.
LSK’s turn 5:25pm: Lawyer Stephen Musalia, representing the Law Society of Kenya, rises to speak. He recognizes all lawyers involved in the case who’re LSK members. ”We’re in a delicate situation.”
AG Githu Muigai Speaks
5:21pm: "I beseech you to do one thing about the future of our jurisprudence stabilise the law," said Githu on his parting shot.
5:16pm: "We have no electronic electoral system that is full proof and any manual intervention is subject to questioning. It is false our system manual backed by electronic interventions," said Githu.
5:14pm: "Elections are about voters, not politicians or political parties, we must keep the voter in mind it his will," said Githu.
5:11pm: "The correct jurisprudence is that the Constitution and the law must be read harmoniously, together," said Githu.
5:07pm: "The Constitution is not an election statute. The Constitution cannot yield an answer on whether the election was well conducted," said Githu.
5: 05pm: "I am not here to take sides with the protagonist who have engaged me throught the year in various cases. I want to thank my lords for admitting me as Amicus Curiae'" said Githu.
5:02pm: BREAKING NEWS: Supreme Court ICT officers have called off the scrutiny of the IEBC servers after the commission said they are facing connectivity challenges in accessing the servers.
Orengo takes charge
5:03pm: "If a proper scrutiny is carried out, you will find out that this elections was shambolic," Orengo concludes.
5:00pm: "The issue of transmission by the electoronic means is an important faction, and the law doesn't talk of a text but the forms the purposes of credibility," said Orengo.
4:55 pm: "The question is more on the mode of transmission, and the law prescribes that the mode should be electronic," said Orengo in a bid to water down IEBC lawyer Nyamodi that the transmission was not as important.
4:51 pm: Orengo calls PLO language as a mixture of legal terms and poetic prose.
"This is not about a baby but an electoral process," said Orengo.
The Bomas Triangle
4:49pm: Nowrojee makes joke on Ahmednasir case that Nigeria is better placed than Kenya GDP advices the Supreme Court to also seek judicial precedence from China which has a higher GDP than Nigeria.
4:42pm: "Who will benefit from all this wrong doings in the IEBC elections if not the third responded(Uhuru Kenyatta)," Nowrojee.4:32pm: "There cannot be a genuine form 34C(Form used by Chebukati to declared Uhuru winner?) because it is made form 34A and B where over 10,000 34A's were missing by the time Chebukati made the announcement." Nowrojee."If 34As were missing, then 34Bs couldn't have been created and therefore no 34c'," said Nowrojee.4:24pm: The form 34A's were kept for long to commit what is unlawful and that is not a free and fair election, said Nowrojee."From this missing evidence, there can be no declaration of results that can be lawful," said Nowrojee.4:23pm: Pheroze Nowrojee : "What was means of transmission? That alone opens another area of hopeless doubt. But let's leave it at that ."4:20pm: Questions NASA ability to challange the form 34A where they are getting their results to question4:18pm: "If they weren't able to provide Form 34As 4 days after the result, how did they get to the result?" Nowrojee.No misconduct
3:57pm: “There is no evidence that Uhuru Kenyatta violated IEBC’s electoral code of conduct”, Lawyer Kinyanjui argues. He urges the court dismiss the petition, with costs on Raila Odinga. He rests his case.
No evidence 3:50pm: Lawyer Kinyanjui, for former presidential candidate Michael Wainaina, “The reason why they (Raila’s lawyers) are asking you (judges) to lower the threshold (from the 2013 case) is because they have no evidence."
3:46pm: “As an independent candidate, I witnessed this elections’ openness” — Lawyer Kinjanjui.
Raila’s agent silent3:41pm: Lawyer Kinyanjui wonders why Raila’s chief agent in the last elections did not sign the petition. "The chief agent should have sworn an affidavit to say that there was hacking and by who."
Court resumes2:35pm: As the court resumes after a lunch break, lawyer Harrison Kinyanjui, acting for former presidential candidate Michael Wainaina — an interested party rises to speak. He submits that there was no evidence of hacking, as Raila Odinga claims.
Court adjourns2:30pm: Chief Justice David Maraga adjourns the court. Hearings to resume from 3:30pm.
Access granted 2:35pm: Paul Muite, for IEBC, says the issue of access to the servers has been given to representatives of Raila Odinga and Uhuru Kenyatta. All parties have requested that their agents at IEBC be increased to speed up the work. Judge Maraga orders each party to have 5 agents.
2:25pm: Lawyer Macharia is challenged by two Supreme Court judges on where ballot papers go when a voter decides to vote for only one candidate. He is unable to answer. An IEBC lawyer intervenes to explain.
Not must to vote for 6 candidates 2:15pm: Lawyer Ngatia: "There is no legal obligation on any voter to vote for all the six candidates (president, governor, senator, MP, women representative and MCA). There are ballots that don’t count.” Dismiss Raila’s case with costs2:14pm: Ahmednasir, “Because Raila Odinga failed to prove all of his allegations, it is the prayer of the third respondent (Uhuru Kenyatta) that the petition be dismissed.”
Ahmednasir’s turn — again 2:10pm: Lawyer Ahmednasir, also for President Uhuru Kenyatta, rises to make ‘final’ submissions. He says Jubilee has the highest number of elected leaders since multi-party democracy was introduced in 1992.
Ngatia’s final word2:05pm: Lawyer Ngatia, for Uhuru Kenyatta, says Raila’s allegations are without any basis.
Campaigning Cabinet Secretaries
1:45pm: "The allegations against the mentioned Cabinet Secretaries are baseless and should be dismissed my Lord," - Ngatia.
Voter bribery
1:39pm: "There is no iota of evidence that IDPs were influenced by the re-settlement they received from the national government," - Ngatia
No intimidation
1:35pm: Lawyer Ngatia dismisses NASA's claim that President Kenyatta intimidated Chiefs in Makueni, says Raila got over 300,000 votes, while Kenyatta managed only 27,000 votes in the county.
Network coverage
1:21pm: "Kenyans were informed about polling stations without 3G and 4G coverage prior to the election," - Ngatia
Exaggerated petition
1:06pm: Uhuru's lawyer Ngatia tells the court that NASA petition is full of exaggerated allegations, with no significant effect of numerical discrepancies.
"From all the discrepancies, the petitioner (Raila) would only receive 822 votes," - Ngatia.
Mathematical formula
12:52pm: "The formula presented before you has no application anywhere," -Ngatia.
Votes streaming
12:50pm: "It is true that the first result streamed in at 5:07pm. It was from Narok Main Prison polling station, where Uhuru got 6 votes, Raila got 4 votes. Total votes cast was 10," - Ngatia.
Uhuru, Raila agents
12:43pm: "Both Raila and Uhuru had agents in all polling centers, and they signed the forms used to declare the winner of the election. The process was free, fair and credible," - Ngatia.
Observers
12:40pm: 300 International Observers in all 47 counties gave the election a clean bill of health, Senior Counsel Ngatia tells court.
No Constitutional breach
12:37pm: "On the polling day, elections were held in accordance to the Constitution, there is no allegation that any voter was denied their right,"- Ngatia.
Uhuru won
12:31pm: The election complied with the Constitution. The evidence demonstrates that the third respondent (President Kenyatta) won," - Ngatia.
Right to vote
12:28pm: "It is not an allegation before us that the people entitled to vote did not vote," - Ngatia.
12:22pm: Uhuru's lawyer Fred Ngatia makes his submission.
Maraga intervenes
12:17pm: Chief Justice David Maraga directs IEBC lawyers to ensure their client complies with the court order to access IEBC servers.
IEBC servers
12:12pm: IEBC lawyer Paul Muite says the servers are in Europe, cannot be accessed immediately due to difference in time zones.
12:11pm: NASA lawyer James Orengo tells the court that there is "substantial non-compliance" by IEBC on access to servers
'Science fiction'
12:00pm: "The petitioners cannot prove their allegations. This petition should be dismissed, it is pure science fiction," - Ahmednasir.
Invalidation of election
11:52am: “Concrete evidence must be provided to invalidate a presidential election. You must show that people who were not entitled to vote, such as foreigners, voted,” - Ahmednasir.
Judge Ibrahim falls ill
11:43am: Supreme Court Judge Mohamed Ibrahim has been taken ill. CJ David Maraga says a doctor is attending to him.
11:35am: "This is not a contest between Raila Odinga and Uhuru Kenyatta, it is about the people. Just because an agent did not sign a form does not warrant violation of the people's right," - Ahmednasir.
Voters' right
11:30am: "You cannot invalidate a presidential election without explaining to the 15 million voters why their vote does not count," - Ahmednasir.
IEBC, NASA quarrel
11:25am: NASA lawyers say they are in the process of filing a non-compliance case against IEBC. They claim the electoral body has denied them access to servers.
11:20am: "Invalidation of an election means interfering with the democratic rights of voters," - Senior Counsel Ahmednasir.
Uhuru's defense
11:16am: President Uhuru Kenyatta's lawyer Ahmednasir Abdulahi is currently challenging Raila Odinga's petition.
IEBC servers 10:55am: NASA lawyers, led by Paul Mwangi, have claimed that IEBC is yet to grant them read-only access to their ICT system, even after the court gave orders to that effect.
Some NASA officials have even named the IEBC individuals who have 'denied them' access to the servers.
Court opening 10:52am: The Supreme Court is expected to start hearing submissions from lawyers at 11am, but do not be surprised if the session starts late — it has been happening.
Day 1
10:50am: In case you missed the hearings yesterday, here are highlights of what happened on day 1.