Post by nowayhaha on Mar 17, 2013 11:50:39 GMT 3
PART II THE FACTS
Procurement
The procurement for BVR was abandoned by the First Respondent following public concern as to the transparency of the procurement process, and disputes within the First Respondent. As a result of the inability of the First Respondent to proceed with the procurement the Government of Kenya was called upon to intervene and assist in helping the First Respondent acquire a BVR system which it did with the consequence that to some extent the First Respondent had compromised its independent status as guaranteed under the constitution.
Having been assisted in acquiring the BVR equipment the First Respondent then proceeded to attempt to procure Biometric Voter Identification equipment (BVI) which turned out to be a much more controversial procurement on the part of the First Respondent.
On 1st June 2012, the First Respondent issued a tender (IEBC/14/2011-2012) for the procurement of BVI. This was published in both the Daily Nation and the East African Standard newspapers and widely publicised. The procurement was awarded to Face Technologies (Faces) for the sum of USD$16,651,113 in circumstances
The objects of the tender for BVI kits were detailed in a technical evaluation report dated 29 September 2012 or thereabouts and expressly stated that the same was to provide clear identification through fingerprint authentication technology, reduce human errors, log all voter activities and provide and efficient and effective means of reconciling the numbers of voters in comparison with the number of votes cast and to provide the highest voting safety levels and prevent election fraud such as double and multiple voting.
During the procurement process appeals by the unsuccessful bidders to the Public Procurement Administrative Review Board (Review Board) it was found as a fact and held that the devices as proposed by Faces had failed 3 of the 6 component requirements, were inconsistent models, would only be available on election day (and not before) and had no "specifications that could be pinned down".
In a Review on 20 November 2012 the Review Board found the First Respondent to be in breach of public procurement regulations as regards the said tender for "Allowing the successful bidder to participate in the second demonstration of Proof of Concept having failed in the first demonstration, and further allowing it to introduce a device that was different from the one it had submitted with its tender".
Notwithstanding the aforesaid fundamental flaws, the Review Board at the instance and request of the First Respondent on or about 11th December 2012 approved the BVI kits procurement from Face Technologies, stating that it was in the public interest, an aspect that was later adopted by the High Court, to continue with such procurement as had been urged by the First Respondent given that the elections were nearing and should not be jeopardized, but required that amendments for compatibility be made where possible.
The said procurement was made notwithstanding the knowledge of the First Respondent that the equipment was not suitable and was likely to fail - and it did.
Voter registration
Upon commencing preparations for the 4th March, 2013 presidential elections, the Second Respondent on or about 16th November 2012 on behalf of the First Respondent gave notice vide Gazette Notice no 16727 that the First Respondent would begin compilation of a new register of voters in respect of the Counties, Constituencies and Wards.
On or about 22nd December 2013, the First Respondent uploaded onto its website iebc.or.ke the provisional register of voters as at 18 December 2012 which stood at a total of 14 337 339.
During February 2013 the first respondent informed the National Liaison committee of the Petitioner’s Coalition that it intended to “clean up” the provisional voters register. On or about 13 February 2013 the Second Respondent in both print and electronic media on the progress towards “cleaning up” of the voters register issued a media briefing on the same process.
On or about 20th February 2013 the First Respondent published a notice informing the public that the compilation of the Principal Register of Voters was complete and had closed, the First and Second Respondents gave the total number of registered voters as at that date to be 14, 267 572.
On or about 15th March 2013, the First and Second Respondents caused to be published in the Daily Nation and other dailies with national circulation within the Republic what purported to be a Summary of 2013 Presidential Results Declared on 9th March, 2013 in which the final total of registered voters was given as 14, 352 533.
The Petitioner states and shall prove that the number given for registered voters in the election differed materially from that which was contained in the Principal Register of Voters as at the statutory closing period of the said Register for purposes of the 4th March, 2013 general election.
The number of registered votes should tally to the number of registered voters per polling station. When you artificially inflate the total number that permits you to vary from the fixed numbers for each polling station and add additional ballots to each polling station without exceeding the actual number of registered voters.
Election Process
The First Respondent commenced transmitting results by electronic means. By the following day no more results were coming through, and the First Respondent intimated that they had a technical glitch after maintaining a static variation in the election figures for some time.
A curious and very concerning feature of the First Respondent's conduct was that it allowed Kencall to co-host both its server and that of the TNA, which of course may compromise the integrity of the electoral process but at very least gives the very real impression that the TNA has access to sort of information which is at the very least initially confidential to the First Respondent.
Despite the Petitioner and his agents regularly updating the First and Second Respondents about its complaints and the incidences of electoral frauds, malpractices and irregularities that it discovered on the said date, the First and Second Respondents neglected, refused and/or failed to act thereon or to stop the occurrence of the same.
Transmission of Votes
Regulation 82 of the Elections (General) Regulations, 2012 required the Presiding Officer in the 4th March, 2013, before ferrying the actual results of the election to the Second Respondent at the tallying centre, to submit to him the said results in electronic form, in the manner that had been directed by the First Respondent before the said election. Such results were to be provisional and would provide the requisite checks and balances required to prevent electoral fraud and the practice adopted in the 2007 of election of delaying transmission of results and then altering, in the interim, the total numbers of votes cast in favour of a given candidate.
An internal IEBC Memorandum from the Director of ICT to the DCS Support Services sets out clear concerns about the BVI devices proffered by Face Technologies.
Most notably the Memorandum expresses that the First Respondent will not be left with sufficient time to carry out the necessary configurations with the BVI technology, and coupled with the lack of local technical support would pose risky.
The Director of ICT further demonstrates that Face Technologies had since confirmed that they would not provide 3G modules for data transmission and would thus require the IEBC to source a third different technology to run the electronic voting system.
Ultimately the Director of ICT's concerns over the clash of using three such different technologies together, he recommended clearly that BVI technology not be pursued and to simply work on improving the BVI kits.
Safaricom (which was the telecommunications company hired to handle the transmission of electoral vote results from the polling stations to the tallying centres on a constituency, county and national level) informed the Chairman of the First Respondent on 21 February 2013 that the system could possibly fail unless certain actions were taken.
Such actions were to alleviate any coverage gap due to the location of the polling stations, test website security, and to carry out a series of technical tests including stress loading and tests on devices. Critically Safaricom also expressly state that the site "has not been adequately prepared nor equipped" in case of disaster recovery.
None of the actions identified by Safaricom were rectified by First Respondent. Accordingly it could not have come as a surprise to First Respondent that the various system failures identified internally and by Safaricom collapsed. The BVR/BVI system catastrophically failed after approximately 2 hours on polling day.
Whether by design negligence or mere incompetence the failure of the BVR/BVI transmission prevented millions of voters of the ability to have their votes counted accurately.
When the First Respondent resorted to manual tallying, the results of which as aforesaid were being released without the participation of the Petitioner or his agents, the number of spoilt votes dropped drastically. The explanation of the Second Respondent was that the earlier numbers of rejected votes had been the result of a bug which applied to all rejected figures by a factor of eight. The Petitioner contents that should that have been the case the total number of rejected votes should have reflected even numbers which it did not.
The effect of the failures, however, has been the inability of the First Respondent and Second Respondents to comply with the requirements of the law.
Presidential party agents were excluded from the verification of presidential election forms as transmitted to the national tallying center by constituency Returning Officers.
Tallying
The First and Second Respondents resorted to manual tallying which was a discredit and abused system which resulted in the violence in 2007 arising out of its lack of transparency, accountability and been subject to manipulation by the First Respondent's officers. Hence the necessity to introduce the electronic registration and transmission of results.
That among the glaring anomalies which were observed in the process of manual tallying from which the First Respondent excluded the Petitioner's agents were that (a) the result were declared on the basis of unsigned Form 36, (b) multiplicity of Form 36, and variants of entries in some constituencies (c) alterations on files and (d) brazen disregard by the First and Second Respondent of the entries on the files of constituencies which were eventually reflected in the final tally of Presidential election results and which were announced without signed verification Form 34s. In many polling stations the valid votes cast exceeded the number of registered voters, including Tiaty, Laisamis, Igembe Central, Buri, Chuka, Iburi Igamba Ngombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai.
In specific instances, the results in Form 36 disclosed by the First Respondent were materially different from the results that were posted in the final tally of the presidential results published by the First Respondent. This included in Webuye East, Webuye West and Igembe Constituencies.
There were several instances where registered voter numbers in polling stations were inflated in Form 34 contrary to what was contained in Form 36. These included Kaproi Nursery School, Metipso Primary School, Maina Primary School, asaibul Primary School, Sewerwa Nursery School, Liter Secondary School, Chesongoch Catholic Church, Mungiwa Primary School, Chawich Primary School and Lemeuywo Primary School. In most of those circumstances, more votes were cast than the total number of registered voters.
In quite a number of circumstances there were more than two Form 36 reflecting different returns. These included Kikuyu Constituency, Juja Constituency, Chuka Constituency, Thika Constituency.
In yet other there were alterations in Form 36 without acknowledgment including Kiambaa and Limuru Constituencies.
A further analysis of the forms revealed that in certain constituencies there were more valid votes reflected in Forms 36 than in Form 34 including in Chesumei, Emngwen and Ainamoi.
In yet other stations, there were different entries in two Forms 36 submitted in respect of the same constituency for example in Mathira Constituency.
In yet another, the final published results were materially different from the results reflected in the County tallying for example in Nakuru not to mention the material variation between the verbal declaration made by the various Commissioners of the First Respondent at the national tallying centre allegedly after verification of results and the fiinal figures which are set out by the First Respondent including those of South Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Boment East and Sigor.
The above are but a few samples of the many anomalies which obtained as a result of the purported manual tallying.
Declaration of Results
The result of the non transparent manual tallying system that was adopted and used by the First and Second Respondents was that there were and remain instances where ballots allegedly cast in some constituencies exceed the actual number of registered in those constituencies.
The Petitioner states that at the Presidential election held in the Republic of Kenya on the 4th of March 2013 and conducted by the First Respondent, the following were the candidates and the alleged total numbers of votes garnered as per the Second Respondent’s declaration given on 9th March, 2013:
James Legilisho Kiyiapi………..………...40,998;
Martha Wangari Karua………..……….... 43,881;
Mohammed Abduba Dida……………..... 52,848;
Musalia Mudavadi……………………...… 483,98;
Paul Kibugi Muite …………………....….. 12,580;
Peter Kenneth…………………………..….. 72,786;
Raila Odinga…………….……………... 5,340,546;
Uhuru Kenyatta………………..……... 6,173,433;
Total No of valid votes cast 12,221,053
According to the First and Second Respondent’s above declaration, the Third Respondent garnered 50.07% of the votes cast in the presidential election held on 4th March, 2013 and was therefore declared the winner thereof.
The Petitioner shall contend and show that …. Votes have been rendered invalid by reason of the above violations and irregularities and accordingly ought to be annulled.
The Petitioner states that upon the annulment of the votes in the………….. polling stations, the following votes ought to be deducted from the respective votes declared in favour of the presidential candidates:
The Petitioner states when these figures are annulled and deducted from the total votes declared by the Second Respondent on 9th March 2013, the results that ought to be returned are as follows:
Accordingly, it is clear that the Third Respondent did not meet the Constitutional threshold of more than half of the votes cast in the presidential election held on 4th March, 2013 and the First and Second Respondents should not have declared or returned him and the Fourth Respondent as duly elected as President and Deputy President in that election respectively.
Grievances and Irregularities
Several polling stations opened late.
Ballot papers ran short in several of the electoral areas where the Petitioner garnered the highest number of votes thereby disenfranchising several of his supporters and persons who would have voted for him.
Party agents were removed and/or denied access to polling stations during the tallying and transmission stages.
Registered voters were denied access to or opportunities to attend at polling stations for purposes of casting their votes.
Voters were registered in their respective constituency however their names were found in different voters’ registers in different constituencies denying them opportunities to vote.
When due account is taken of the Constitutional and statutory violations of the First and Second Respondents herein, and each of them, and of their servants and agents, as well as of the gross and widespread irregularities and malpractices that occurred in the 4th March, 2013 presidential election, and the necessary deductions effected from the votes wrongfully credited to the Third Respondent by the First and Second Respondent and the nullification thereof as required by law of the results declared at the polling stations where these substantive infractions occurred, the Third Respondent did not obtain the total of more than fifty per cent (50%) of the valid votes cast as required by Article 138 (4)(a) of the Constitution in order to be duly elected President, and accordingly ought not to have been declared as such by the First and Second Respondents.
The Petitioner states that all of the irregularities and electoral malpractices captured above, were nothing but a deliberate, well-calculated and executed ploy or a contrivance on the part of the First and Second Respondents with the ultimate object of unconstitutionally and unlawfully assisting the Third Respondent to win the 4th March 2013 Presidential Elections.
The Petitioner states that as consequence of these constitutional and statutory violations and infractions as well as the irregularities and malpractices, the results declared by First Respondent in favour of Second Respondent were far less than the fifty per cent (50%) of the votes cast as required by Article 138 (4)(a) of the Constitution thereby subverting the sovereign will of the electorate contrary to the preamble of the Constitution, Article 1 (1) and Articles 38 and 138 (4) of the Constitution, 2010.
The Petitioner states that in some instances, votes earned by the Petitioner were unlawfully reduced whilst at the same time, votes of the Third Respondent were illegally padded with the sole purpose of procuring victory for the Third Respondent in the 4th March 2013 Presidential Elections.
The Petitioner states that at the conclusion of the election, the First Respondent herein, acting through the Second Respondent, who was at all material times the Returning Officer for the 4th of March 2013 presidential elections, returned the Third Respondent herein, as having been validly elected president of the Republic of Kenya contrary to the provisions of the Constitution of Kenya.
By virtue of Article 3(2) of the Constitution of Kenya therefore, any attempt by the Third and Fourth Respondents to establish a government in pursuance of the aforesaid unconstitutional declaration given on 9th March, 2013 is unlawful, null and void.
The Petitioner's agents were denied access to polling stations or thrown out in some polling stations in the Rift Valley and in Central Kenya.
PART III THE GROUNDS FOR THE PETITION
Summary of the grounds of the Petition
Ground 1
The First and Second Respondents failed in their duty, as they were required by Article 86 of the Constitution and Section 4 of the IEBC Act, to ensure that in relation to the Presidential Election held on 4th March, 2013:
the voting method used was simple, accurate, verifiable, secure, accountable and transparent;
the votes cast were counted, tabulated and the results thereof announced promptly by the presiding officer at each polling station;
the results from the said polling stations were openly and accurately collated and promptly announced by the Second Respondent as Returning Officer thereat; and that
appropriate structures and mechanisms to eliminate electoral malpractice were put in place, including the safekeeping of election materials.
Particulars
The First Respondent permitted voting to take place in many polling stations across the country without prior biometric verification by the presiding officers and other relevant officers;
Voting in polling stations where voting took place without prior biometric registration were unlawfully taken into account in the declaration of results by the First Respondent;
By the First Respondent’s established procedure, the First Respondent conducted the said presidential and parliamentary elections at polling stations each of which was assigned a unique code to avoid confusing one polling station with another and to provide a mechanism for preventing possible electoral malpractices and irregularities.
There were, however, widespread instances where different results were strangely recorded on the Declaration Forms (otherwise known as the ‘Forms 34,35 and 36’ in respect of polling stations.
The results emanating therefrom were patently illegal.
That there were widespread instances where there were no signatures of the presiding officers or their assistants on the declarations forms.
The results on such forms were nevertheless used in arriving at the final tally of the presidential results declared on 9th March 2013 by the Second Respondent, thereby rendering the results so declared invalid.
Ground 2
The First and Second Respondents failed in their duties under Article 88(4) and (5) of the Constitution to take full responsibility for the conduct and supervision of the presidential election held on 4th March, 2013 in:
Irregularly and unlawfully revising the voters roll and keeping it open ended up for purposes thereof thereby leaving the same open to abuse and manipulation;
Failing to facilitate and provide mechanisms and systems for the observation, monitoring and evaluation of the said election or so abruptly changing the manner of conduct of the same as to render such observation, monitoring and evaluation impossible in the circumstances;
Failing to ensure or secure the Third and Fourth Respondent’s adherence to the code of conduct developed for candidates in the said election;
Failing to exercise its powers and perform its functions in relation to the said election in accordance with the Constitution of the Republic of Kenya and the Elections Act, the IEBC Act and other enabling statutory and regulatory enactments;
AND the Petitioner avers that there were diverse and flagrant violations of the statutory provisions and regulations governing the conduct of the said presidential election which substantially and materially affected the results purportedly declared by the Second Respondent on 9th March, 2013.
Particulars
That the results as declared and recorded by the First Respondent contained widespread instances of over-voting in flagrant breach of the fundamental constitutional principle of universal adult suffrage, to wit, one man one vote.
That while the total number of registered voters as published by the First Respondent and provided to all political parties and candidates for the presidential and parliamentary election had been determined, when the First Respondent announced the results of the presidential election of 4th March 2013 the total number of registered voters that had initially been announced mysteriously metamorphosed to a new and inexplicable figure.
This wrongfully and unlawfully increased the total number of registered voters by the substantial number of …………… or thereabouts.
That there were widespread instances of voting without prior biometric verification;
That there were widespread instances of absence of the signatures of Agents.
The First and Second Respondents conferred undue advantage to the Third and Fourth Respondents and their political parties or the Jubilee Coalition by sharing a server with them for purposes of the electronic transmission of results from the various polling stations at the said election.
In the course of the polling day, it came to the notice of some members of the public, that the officers of a company by the name Kencall EPZ Limited, a call centre, was receiving the results of the general elections and the specifically the Presidential ones.
That upon investigation it became clear that the said Kencall EPZ Limited, in reality was a call centre that was used as a gateway that linked the First Respondent titled African Focus CRM and has a web address www.intranet.kencall/apps/IEBC and the TNA known as Marketrace on the server and whose web address or URL is www.intranet.kencall/apps/tna.
The First Respondent’s database and the TNA database was hosted by the said Kencall EPZ Limited on the same server with IP address 196.1.26.40 during the said presidential election;
This clandestine arrangement of co-hosting databases is not permissible by law and indeed was not disclosed to the public or to the Petitioner and his political party or the CORD Coalition. The same compromised the independence and the integrity of the First Respondent and that of its data in that the TNA, URP and Jubilee Coalition was able to access the First Respondent’s database and intervene and/or manipulate the results of the election as the same was being transmitted from the various polling stations in the said election;
This clandestine arrangement provided an opportunity for tampering with the results of the presidential elections.
The Petitioner shall contend and prove that the two databases were mirrored with one another, to wit, they were synchronized, hence when an entry was made or edited on one database, it would similarly be synchronized, made or edited and correspondingly reflected on the other;
The Petitioner shall further content and prove that several people were employed and trained for the purpose of the elections to key in data into the TNA and Jubilee Coalition database. It was this data which was then used to doctor the Forms 34, 35 and 36(a) and were ferried to the First and Second Respondent for use to make the announcements at the Bomas of Kenya leading to the unlawful declaration of the Third Respondent as the duly elected President on 9th March, 2013;
Quite conveniently, and by design, the First and Second Respondent had meanwhile, delayed the ferrying of such results from the polling stations under the pretext that steps were being taken to rectify the system failure that had stopped the electronic relaying of results of the election;
After more than twelve (12) hours had lapsed following the official close of polling, the First and Second Respondents then, in a bid to deceive the people of Kenya, announced that arrangements would be made to airlift Returning and Presiding Officers from the 290 Constituencies of Kenya when in fact there were no immediate plans to do so;
Despite such assurances, it was not after a period of over eighteen (18) hours had lapsed that any such officers in fact started to arrive at the Bomas of Kenya which was the National Tallying Centre for purposes of the said election, and even then, the last of such officers did not reach Nairobi until the fourth (4th) day after close of polling, to wit, Thursday, 7th March, 2013.
The above arrangement and illegal design provided an opportunity for the First Respondent’s database to be manipulated in favour of the Third and Fourth Respondents, their political parties and the Jubilee Coalition thereby putting them at a distinct advantage relative to the Petitioner.
PART IV ARGUMENTS IN SUPPORT OF THE GROUNDS FOR PETITION
The First and Second Respondents are and were under an obligation in the conduct and supervision of the presidential election held on 4th March, 2013 to respect, uphold and defend the Constitution of Kenya.
While so acting they were bound by the Constitution which is the supreme law of the Republic of Kenya.
They could therefore not validly claim to exercise their Constitutional and statutory mandate except as authorized under and by the Constitution.
If they acted or failed to act in a manner that contravened the Constitution in relation to the said election, such act or omission was and remains invalid, null and void.
The First and Second Respondents and the agents, servants, employees and/or service providers were at all material times bound by Article 10 of the Constitution to observe, respect and uphold and defend the national values and principles of governance in relation to the said election.
The First and Second Respondents were at all material times bound by the Bill of Rights, which applied to them, in terms of Article 20(1) of the Constitution.
The First and Second Respondents therefore were bound to respect, uphold and defend the Petitioner’s political rights and those of his supporters as protected and recognized by Article 38 of the Constitution including, but not limited to, securing that the presidential election held on 4th March, 2013 was based on universal suffrage and the represented the free expression of the will of Kenyan electors for the position of President.
The First and Second Respondents failed to properly and correctly count, tally and verify the count of Presidential votes resulting from the presidential election held on 4th March, 2013 in breach of Article 138 of the Constitution of the Republic of Kenya.
The votes garnered by the Third Respondent were less than fifty per cent (50%) of the votes cast as required by Article 138 (4)(a) of the Constitution.
The First and Second Respondents unconstitutionally declared the Third Respondent, as the President-elect of the Republic of Kenya on 9th March 2013 following the said elections and the Third Respondent was therefore not validly elected as President or validly declared as so elected.
That the election was also vitiated by gross and widespread irregularities and/or malpractices which fundamentally impugned the validity of the results in ………polling stations as declared by First Respondent.
That the statutory violations and irregularities and/or malpractices described alluded to herein above, which were apparent on the Declaration Forms prepared by the First Respondent’s Officers and relied upon by the Second Respondent, had the direct effect of introducing into the aggregate of valid votes recorded in the polling stations across the country, a whopping figure of__________irregular votes, which vitiated the validity of the votes cast and had a material and substantial effect on the outcome of the election thereby rendering the same illegal, unlawful, null and void.
The First Respondent clearly and with calculate precision and by design adopted a procedure, policy and attitude that would ensure that the electronic voter registration, identification and results transmission in the presidential election held on 4th March, 2013 would fail and was bound to fail thereby ensuring that it could not and would not hold a free or fair or transparent presidential election, as it did.
PART V THE QUESTIONS AND ISSUES FOR THE DETERMINATION IN THIS PETITION.
Whether or not the Respondents, or any of them, was in breach of or contravened the provisions of the Constitution of the Republic of Kenya in any manner fundamental in relation the Presidential election held on 4th March, 2013, and if so, what is the consequence of the same?
Whether or not the Respondents, or any of them, was in breach of or contravened the provisions of the IEBC Act or the Elections Act and the Regulations or Rules made thereunder in any manner fundamental in relation the Presidential election held on 4th March, 2013, and if so, what is the consequence of the same?
Whether or not the entire electoral process from the procurement of BVR kits to the declaration, on 9th March, 2013 of the Third Respondent as duly elected President of the Republic of Kenya in the presidential election held on 4th March, 2013 and the conduct and supervision of the said election by the First Respondent was invalid and so fundamentally and irreparably flawed, unconstitutional and unlawful that no valid or lawful declaration could be made as the Second Respondent purported to do, and if so what is the consequence of the same?
Was the Third Respondent validly elected as President of the Republic of Kenya?;
What should be the Order as to Costs?
Whether or not the Honourable Court should issue any other or further Orders?
PART VI THE RELIEFS SOUGHT
REASONS WHEREFORE YOUR PETITIONER HUMBLY PRAYS THAT THE SUPREME COURT DECLARES THAT:-
The First Respondent’s process of procurement of Equipment, Registration of Voters, Conduct of the Presidential Election, Transmission and Tallying of the 4th of March 2013 Presidential election results was flawed and in breach of Articles 2, 10, 38, 73, 81(e), 86, 88 and 136 of the Constitution of the Republic of Kenya.
The Presidential elections held on the 4th of March 2013 were null and void.
The First Respondent and Second Respondent are in breach of their Constitutional obligations under Articles 10, 81(e), 86 and 88 of the Constitution of the Republic of Kenya in relation to the 4th of March 2013 Presidential election.
The First Respondent was in breach of its obligations under Rule 6, 9, 27 and 28 of the Election (Registration of Voters) Regulations 2012, Section 5 of the Elections Act and Articles 10, 81(e), 86, and 88 of the Constitution of the Republic of Kenya in relation to the Principal Register of voters.
The First Respondent was in breach of its obligations under Sections 59, 60, 61, 62, 74, 79 and 82 of the Election (General) Regulations, 2012.
The First Respondent and Second Respondent after the Presidential elections held on the 4th of March 2013 acted unconstitutionally and unlawfully in tallying the Presidential votes using erroneous Form 36 without counterchecking with the Form 34 in breach of Article 138(3)(c) of the Constitution of the Republic of Kenya.
The First Respondent and Second Respondent failed to properly tally and verify the count of Presidential votes in breach of Article 138(3)(c) of the Constitution of the Republic of Kenya during the Presidential elections held on the 4th of March 2013.
The Second Respondent is in breach of his Constitutional obligations under Article 75 of the Constitution of the Republic of Kenya in relation to the 4th of March 2013 Presidential election.
The First Respondent and Second Respondent are guilty of offences under the Election Act, 2011.
The Third Respondent was not validly elected as the President –elect of the Republic of Kenya at the concluded Presidential elections held on the 4th of March 2013.
The Third Respondent did not receive more than half of all the votes cast for the President-elect of the Republic of Kenya at the concluded Presidential elections held on the 4th of March 2013.
That the Third Respondent was not validly elected and declared as the President-elect of the Republic of Kenya at the concluded Presidential elections held on 4th day of March, 2013.
An Order of cancellation of the Certificate of Election as the President-elect of the Republic of Kenya issued by the First and Second Respondent to the Third Respondent at the just concluded Presidential elections held on the 4th day of March 2013.
The Petitioner’s fundamental rights under Articles 35, 38 and 47 of the Constitution of the Republic of Kenya were violated when the First Respondent and Second Respondent failed to properly tally and verify the count of Presidential votes in breach of Article 138(3)(c) of the Constitution of the Republic of Kenya during the Presidential elections held on the 4th of March 2013.
An Order that there be fresh election for the President of the Republic of Kenya in strict compliance with Constitution.
An Order that the costs of this Petition be borne by the Respondents.
DATED at Nairobi this day of 2013.
PETITIONER
ORARO AND COMPANY
ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY: -
ORARO & COMPANY,
ADVOCATES,
ACK GARDEN HOUSE, 5TH FLOOR
P.O. BOX 51236-00200
NAIROBI.
TO BE SERVED UPON:-
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION
ANNIVERSARY TOWERS, 7TH FLOOR
UNIVERSITY WAY
NAIROBI.
AHMED ISSACK HASSAN
ANNIVERSARY TOWERS, 7TH FLOOR
UNIVERSITY WAY
NAIROBI.
HON. UHURU KENYATTA
NAIROBI.
HON. WILLIAM SAMOEI RUTO
NAIROBI.
Procurement
The procurement for BVR was abandoned by the First Respondent following public concern as to the transparency of the procurement process, and disputes within the First Respondent. As a result of the inability of the First Respondent to proceed with the procurement the Government of Kenya was called upon to intervene and assist in helping the First Respondent acquire a BVR system which it did with the consequence that to some extent the First Respondent had compromised its independent status as guaranteed under the constitution.
Having been assisted in acquiring the BVR equipment the First Respondent then proceeded to attempt to procure Biometric Voter Identification equipment (BVI) which turned out to be a much more controversial procurement on the part of the First Respondent.
On 1st June 2012, the First Respondent issued a tender (IEBC/14/2011-2012) for the procurement of BVI. This was published in both the Daily Nation and the East African Standard newspapers and widely publicised. The procurement was awarded to Face Technologies (Faces) for the sum of USD$16,651,113 in circumstances
The objects of the tender for BVI kits were detailed in a technical evaluation report dated 29 September 2012 or thereabouts and expressly stated that the same was to provide clear identification through fingerprint authentication technology, reduce human errors, log all voter activities and provide and efficient and effective means of reconciling the numbers of voters in comparison with the number of votes cast and to provide the highest voting safety levels and prevent election fraud such as double and multiple voting.
During the procurement process appeals by the unsuccessful bidders to the Public Procurement Administrative Review Board (Review Board) it was found as a fact and held that the devices as proposed by Faces had failed 3 of the 6 component requirements, were inconsistent models, would only be available on election day (and not before) and had no "specifications that could be pinned down".
In a Review on 20 November 2012 the Review Board found the First Respondent to be in breach of public procurement regulations as regards the said tender for "Allowing the successful bidder to participate in the second demonstration of Proof of Concept having failed in the first demonstration, and further allowing it to introduce a device that was different from the one it had submitted with its tender".
Notwithstanding the aforesaid fundamental flaws, the Review Board at the instance and request of the First Respondent on or about 11th December 2012 approved the BVI kits procurement from Face Technologies, stating that it was in the public interest, an aspect that was later adopted by the High Court, to continue with such procurement as had been urged by the First Respondent given that the elections were nearing and should not be jeopardized, but required that amendments for compatibility be made where possible.
The said procurement was made notwithstanding the knowledge of the First Respondent that the equipment was not suitable and was likely to fail - and it did.
Voter registration
Upon commencing preparations for the 4th March, 2013 presidential elections, the Second Respondent on or about 16th November 2012 on behalf of the First Respondent gave notice vide Gazette Notice no 16727 that the First Respondent would begin compilation of a new register of voters in respect of the Counties, Constituencies and Wards.
On or about 22nd December 2013, the First Respondent uploaded onto its website iebc.or.ke the provisional register of voters as at 18 December 2012 which stood at a total of 14 337 339.
During February 2013 the first respondent informed the National Liaison committee of the Petitioner’s Coalition that it intended to “clean up” the provisional voters register. On or about 13 February 2013 the Second Respondent in both print and electronic media on the progress towards “cleaning up” of the voters register issued a media briefing on the same process.
On or about 20th February 2013 the First Respondent published a notice informing the public that the compilation of the Principal Register of Voters was complete and had closed, the First and Second Respondents gave the total number of registered voters as at that date to be 14, 267 572.
On or about 15th March 2013, the First and Second Respondents caused to be published in the Daily Nation and other dailies with national circulation within the Republic what purported to be a Summary of 2013 Presidential Results Declared on 9th March, 2013 in which the final total of registered voters was given as 14, 352 533.
The Petitioner states and shall prove that the number given for registered voters in the election differed materially from that which was contained in the Principal Register of Voters as at the statutory closing period of the said Register for purposes of the 4th March, 2013 general election.
The number of registered votes should tally to the number of registered voters per polling station. When you artificially inflate the total number that permits you to vary from the fixed numbers for each polling station and add additional ballots to each polling station without exceeding the actual number of registered voters.
Election Process
The First Respondent commenced transmitting results by electronic means. By the following day no more results were coming through, and the First Respondent intimated that they had a technical glitch after maintaining a static variation in the election figures for some time.
A curious and very concerning feature of the First Respondent's conduct was that it allowed Kencall to co-host both its server and that of the TNA, which of course may compromise the integrity of the electoral process but at very least gives the very real impression that the TNA has access to sort of information which is at the very least initially confidential to the First Respondent.
Despite the Petitioner and his agents regularly updating the First and Second Respondents about its complaints and the incidences of electoral frauds, malpractices and irregularities that it discovered on the said date, the First and Second Respondents neglected, refused and/or failed to act thereon or to stop the occurrence of the same.
Transmission of Votes
Regulation 82 of the Elections (General) Regulations, 2012 required the Presiding Officer in the 4th March, 2013, before ferrying the actual results of the election to the Second Respondent at the tallying centre, to submit to him the said results in electronic form, in the manner that had been directed by the First Respondent before the said election. Such results were to be provisional and would provide the requisite checks and balances required to prevent electoral fraud and the practice adopted in the 2007 of election of delaying transmission of results and then altering, in the interim, the total numbers of votes cast in favour of a given candidate.
An internal IEBC Memorandum from the Director of ICT to the DCS Support Services sets out clear concerns about the BVI devices proffered by Face Technologies.
Most notably the Memorandum expresses that the First Respondent will not be left with sufficient time to carry out the necessary configurations with the BVI technology, and coupled with the lack of local technical support would pose risky.
The Director of ICT further demonstrates that Face Technologies had since confirmed that they would not provide 3G modules for data transmission and would thus require the IEBC to source a third different technology to run the electronic voting system.
Ultimately the Director of ICT's concerns over the clash of using three such different technologies together, he recommended clearly that BVI technology not be pursued and to simply work on improving the BVI kits.
Safaricom (which was the telecommunications company hired to handle the transmission of electoral vote results from the polling stations to the tallying centres on a constituency, county and national level) informed the Chairman of the First Respondent on 21 February 2013 that the system could possibly fail unless certain actions were taken.
Such actions were to alleviate any coverage gap due to the location of the polling stations, test website security, and to carry out a series of technical tests including stress loading and tests on devices. Critically Safaricom also expressly state that the site "has not been adequately prepared nor equipped" in case of disaster recovery.
None of the actions identified by Safaricom were rectified by First Respondent. Accordingly it could not have come as a surprise to First Respondent that the various system failures identified internally and by Safaricom collapsed. The BVR/BVI system catastrophically failed after approximately 2 hours on polling day.
Whether by design negligence or mere incompetence the failure of the BVR/BVI transmission prevented millions of voters of the ability to have their votes counted accurately.
When the First Respondent resorted to manual tallying, the results of which as aforesaid were being released without the participation of the Petitioner or his agents, the number of spoilt votes dropped drastically. The explanation of the Second Respondent was that the earlier numbers of rejected votes had been the result of a bug which applied to all rejected figures by a factor of eight. The Petitioner contents that should that have been the case the total number of rejected votes should have reflected even numbers which it did not.
The effect of the failures, however, has been the inability of the First Respondent and Second Respondents to comply with the requirements of the law.
Presidential party agents were excluded from the verification of presidential election forms as transmitted to the national tallying center by constituency Returning Officers.
Tallying
The First and Second Respondents resorted to manual tallying which was a discredit and abused system which resulted in the violence in 2007 arising out of its lack of transparency, accountability and been subject to manipulation by the First Respondent's officers. Hence the necessity to introduce the electronic registration and transmission of results.
That among the glaring anomalies which were observed in the process of manual tallying from which the First Respondent excluded the Petitioner's agents were that (a) the result were declared on the basis of unsigned Form 36, (b) multiplicity of Form 36, and variants of entries in some constituencies (c) alterations on files and (d) brazen disregard by the First and Second Respondent of the entries on the files of constituencies which were eventually reflected in the final tally of Presidential election results and which were announced without signed verification Form 34s. In many polling stations the valid votes cast exceeded the number of registered voters, including Tiaty, Laisamis, Igembe Central, Buri, Chuka, Iburi Igamba Ngombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai.
In specific instances, the results in Form 36 disclosed by the First Respondent were materially different from the results that were posted in the final tally of the presidential results published by the First Respondent. This included in Webuye East, Webuye West and Igembe Constituencies.
There were several instances where registered voter numbers in polling stations were inflated in Form 34 contrary to what was contained in Form 36. These included Kaproi Nursery School, Metipso Primary School, Maina Primary School, asaibul Primary School, Sewerwa Nursery School, Liter Secondary School, Chesongoch Catholic Church, Mungiwa Primary School, Chawich Primary School and Lemeuywo Primary School. In most of those circumstances, more votes were cast than the total number of registered voters.
In quite a number of circumstances there were more than two Form 36 reflecting different returns. These included Kikuyu Constituency, Juja Constituency, Chuka Constituency, Thika Constituency.
In yet other there were alterations in Form 36 without acknowledgment including Kiambaa and Limuru Constituencies.
A further analysis of the forms revealed that in certain constituencies there were more valid votes reflected in Forms 36 than in Form 34 including in Chesumei, Emngwen and Ainamoi.
In yet other stations, there were different entries in two Forms 36 submitted in respect of the same constituency for example in Mathira Constituency.
In yet another, the final published results were materially different from the results reflected in the County tallying for example in Nakuru not to mention the material variation between the verbal declaration made by the various Commissioners of the First Respondent at the national tallying centre allegedly after verification of results and the fiinal figures which are set out by the First Respondent including those of South Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Boment East and Sigor.
The above are but a few samples of the many anomalies which obtained as a result of the purported manual tallying.
Declaration of Results
The result of the non transparent manual tallying system that was adopted and used by the First and Second Respondents was that there were and remain instances where ballots allegedly cast in some constituencies exceed the actual number of registered in those constituencies.
The Petitioner states that at the Presidential election held in the Republic of Kenya on the 4th of March 2013 and conducted by the First Respondent, the following were the candidates and the alleged total numbers of votes garnered as per the Second Respondent’s declaration given on 9th March, 2013:
James Legilisho Kiyiapi………..………...40,998;
Martha Wangari Karua………..……….... 43,881;
Mohammed Abduba Dida……………..... 52,848;
Musalia Mudavadi……………………...… 483,98;
Paul Kibugi Muite …………………....….. 12,580;
Peter Kenneth…………………………..….. 72,786;
Raila Odinga…………….……………... 5,340,546;
Uhuru Kenyatta………………..……... 6,173,433;
Total No of valid votes cast 12,221,053
According to the First and Second Respondent’s above declaration, the Third Respondent garnered 50.07% of the votes cast in the presidential election held on 4th March, 2013 and was therefore declared the winner thereof.
The Petitioner shall contend and show that …. Votes have been rendered invalid by reason of the above violations and irregularities and accordingly ought to be annulled.
The Petitioner states that upon the annulment of the votes in the………….. polling stations, the following votes ought to be deducted from the respective votes declared in favour of the presidential candidates:
The Petitioner states when these figures are annulled and deducted from the total votes declared by the Second Respondent on 9th March 2013, the results that ought to be returned are as follows:
Accordingly, it is clear that the Third Respondent did not meet the Constitutional threshold of more than half of the votes cast in the presidential election held on 4th March, 2013 and the First and Second Respondents should not have declared or returned him and the Fourth Respondent as duly elected as President and Deputy President in that election respectively.
Grievances and Irregularities
Several polling stations opened late.
Ballot papers ran short in several of the electoral areas where the Petitioner garnered the highest number of votes thereby disenfranchising several of his supporters and persons who would have voted for him.
Party agents were removed and/or denied access to polling stations during the tallying and transmission stages.
Registered voters were denied access to or opportunities to attend at polling stations for purposes of casting their votes.
Voters were registered in their respective constituency however their names were found in different voters’ registers in different constituencies denying them opportunities to vote.
When due account is taken of the Constitutional and statutory violations of the First and Second Respondents herein, and each of them, and of their servants and agents, as well as of the gross and widespread irregularities and malpractices that occurred in the 4th March, 2013 presidential election, and the necessary deductions effected from the votes wrongfully credited to the Third Respondent by the First and Second Respondent and the nullification thereof as required by law of the results declared at the polling stations where these substantive infractions occurred, the Third Respondent did not obtain the total of more than fifty per cent (50%) of the valid votes cast as required by Article 138 (4)(a) of the Constitution in order to be duly elected President, and accordingly ought not to have been declared as such by the First and Second Respondents.
The Petitioner states that all of the irregularities and electoral malpractices captured above, were nothing but a deliberate, well-calculated and executed ploy or a contrivance on the part of the First and Second Respondents with the ultimate object of unconstitutionally and unlawfully assisting the Third Respondent to win the 4th March 2013 Presidential Elections.
The Petitioner states that as consequence of these constitutional and statutory violations and infractions as well as the irregularities and malpractices, the results declared by First Respondent in favour of Second Respondent were far less than the fifty per cent (50%) of the votes cast as required by Article 138 (4)(a) of the Constitution thereby subverting the sovereign will of the electorate contrary to the preamble of the Constitution, Article 1 (1) and Articles 38 and 138 (4) of the Constitution, 2010.
The Petitioner states that in some instances, votes earned by the Petitioner were unlawfully reduced whilst at the same time, votes of the Third Respondent were illegally padded with the sole purpose of procuring victory for the Third Respondent in the 4th March 2013 Presidential Elections.
The Petitioner states that at the conclusion of the election, the First Respondent herein, acting through the Second Respondent, who was at all material times the Returning Officer for the 4th of March 2013 presidential elections, returned the Third Respondent herein, as having been validly elected president of the Republic of Kenya contrary to the provisions of the Constitution of Kenya.
By virtue of Article 3(2) of the Constitution of Kenya therefore, any attempt by the Third and Fourth Respondents to establish a government in pursuance of the aforesaid unconstitutional declaration given on 9th March, 2013 is unlawful, null and void.
The Petitioner's agents were denied access to polling stations or thrown out in some polling stations in the Rift Valley and in Central Kenya.
PART III THE GROUNDS FOR THE PETITION
Summary of the grounds of the Petition
Ground 1
The First and Second Respondents failed in their duty, as they were required by Article 86 of the Constitution and Section 4 of the IEBC Act, to ensure that in relation to the Presidential Election held on 4th March, 2013:
the voting method used was simple, accurate, verifiable, secure, accountable and transparent;
the votes cast were counted, tabulated and the results thereof announced promptly by the presiding officer at each polling station;
the results from the said polling stations were openly and accurately collated and promptly announced by the Second Respondent as Returning Officer thereat; and that
appropriate structures and mechanisms to eliminate electoral malpractice were put in place, including the safekeeping of election materials.
Particulars
The First Respondent permitted voting to take place in many polling stations across the country without prior biometric verification by the presiding officers and other relevant officers;
Voting in polling stations where voting took place without prior biometric registration were unlawfully taken into account in the declaration of results by the First Respondent;
By the First Respondent’s established procedure, the First Respondent conducted the said presidential and parliamentary elections at polling stations each of which was assigned a unique code to avoid confusing one polling station with another and to provide a mechanism for preventing possible electoral malpractices and irregularities.
There were, however, widespread instances where different results were strangely recorded on the Declaration Forms (otherwise known as the ‘Forms 34,35 and 36’ in respect of polling stations.
The results emanating therefrom were patently illegal.
That there were widespread instances where there were no signatures of the presiding officers or their assistants on the declarations forms.
The results on such forms were nevertheless used in arriving at the final tally of the presidential results declared on 9th March 2013 by the Second Respondent, thereby rendering the results so declared invalid.
Ground 2
The First and Second Respondents failed in their duties under Article 88(4) and (5) of the Constitution to take full responsibility for the conduct and supervision of the presidential election held on 4th March, 2013 in:
Irregularly and unlawfully revising the voters roll and keeping it open ended up for purposes thereof thereby leaving the same open to abuse and manipulation;
Failing to facilitate and provide mechanisms and systems for the observation, monitoring and evaluation of the said election or so abruptly changing the manner of conduct of the same as to render such observation, monitoring and evaluation impossible in the circumstances;
Failing to ensure or secure the Third and Fourth Respondent’s adherence to the code of conduct developed for candidates in the said election;
Failing to exercise its powers and perform its functions in relation to the said election in accordance with the Constitution of the Republic of Kenya and the Elections Act, the IEBC Act and other enabling statutory and regulatory enactments;
AND the Petitioner avers that there were diverse and flagrant violations of the statutory provisions and regulations governing the conduct of the said presidential election which substantially and materially affected the results purportedly declared by the Second Respondent on 9th March, 2013.
Particulars
That the results as declared and recorded by the First Respondent contained widespread instances of over-voting in flagrant breach of the fundamental constitutional principle of universal adult suffrage, to wit, one man one vote.
That while the total number of registered voters as published by the First Respondent and provided to all political parties and candidates for the presidential and parliamentary election had been determined, when the First Respondent announced the results of the presidential election of 4th March 2013 the total number of registered voters that had initially been announced mysteriously metamorphosed to a new and inexplicable figure.
This wrongfully and unlawfully increased the total number of registered voters by the substantial number of …………… or thereabouts.
That there were widespread instances of voting without prior biometric verification;
That there were widespread instances of absence of the signatures of Agents.
The First and Second Respondents conferred undue advantage to the Third and Fourth Respondents and their political parties or the Jubilee Coalition by sharing a server with them for purposes of the electronic transmission of results from the various polling stations at the said election.
In the course of the polling day, it came to the notice of some members of the public, that the officers of a company by the name Kencall EPZ Limited, a call centre, was receiving the results of the general elections and the specifically the Presidential ones.
That upon investigation it became clear that the said Kencall EPZ Limited, in reality was a call centre that was used as a gateway that linked the First Respondent titled African Focus CRM and has a web address www.intranet.kencall/apps/IEBC and the TNA known as Marketrace on the server and whose web address or URL is www.intranet.kencall/apps/tna.
The First Respondent’s database and the TNA database was hosted by the said Kencall EPZ Limited on the same server with IP address 196.1.26.40 during the said presidential election;
This clandestine arrangement of co-hosting databases is not permissible by law and indeed was not disclosed to the public or to the Petitioner and his political party or the CORD Coalition. The same compromised the independence and the integrity of the First Respondent and that of its data in that the TNA, URP and Jubilee Coalition was able to access the First Respondent’s database and intervene and/or manipulate the results of the election as the same was being transmitted from the various polling stations in the said election;
This clandestine arrangement provided an opportunity for tampering with the results of the presidential elections.
The Petitioner shall contend and prove that the two databases were mirrored with one another, to wit, they were synchronized, hence when an entry was made or edited on one database, it would similarly be synchronized, made or edited and correspondingly reflected on the other;
The Petitioner shall further content and prove that several people were employed and trained for the purpose of the elections to key in data into the TNA and Jubilee Coalition database. It was this data which was then used to doctor the Forms 34, 35 and 36(a) and were ferried to the First and Second Respondent for use to make the announcements at the Bomas of Kenya leading to the unlawful declaration of the Third Respondent as the duly elected President on 9th March, 2013;
Quite conveniently, and by design, the First and Second Respondent had meanwhile, delayed the ferrying of such results from the polling stations under the pretext that steps were being taken to rectify the system failure that had stopped the electronic relaying of results of the election;
After more than twelve (12) hours had lapsed following the official close of polling, the First and Second Respondents then, in a bid to deceive the people of Kenya, announced that arrangements would be made to airlift Returning and Presiding Officers from the 290 Constituencies of Kenya when in fact there were no immediate plans to do so;
Despite such assurances, it was not after a period of over eighteen (18) hours had lapsed that any such officers in fact started to arrive at the Bomas of Kenya which was the National Tallying Centre for purposes of the said election, and even then, the last of such officers did not reach Nairobi until the fourth (4th) day after close of polling, to wit, Thursday, 7th March, 2013.
The above arrangement and illegal design provided an opportunity for the First Respondent’s database to be manipulated in favour of the Third and Fourth Respondents, their political parties and the Jubilee Coalition thereby putting them at a distinct advantage relative to the Petitioner.
PART IV ARGUMENTS IN SUPPORT OF THE GROUNDS FOR PETITION
The First and Second Respondents are and were under an obligation in the conduct and supervision of the presidential election held on 4th March, 2013 to respect, uphold and defend the Constitution of Kenya.
While so acting they were bound by the Constitution which is the supreme law of the Republic of Kenya.
They could therefore not validly claim to exercise their Constitutional and statutory mandate except as authorized under and by the Constitution.
If they acted or failed to act in a manner that contravened the Constitution in relation to the said election, such act or omission was and remains invalid, null and void.
The First and Second Respondents and the agents, servants, employees and/or service providers were at all material times bound by Article 10 of the Constitution to observe, respect and uphold and defend the national values and principles of governance in relation to the said election.
The First and Second Respondents were at all material times bound by the Bill of Rights, which applied to them, in terms of Article 20(1) of the Constitution.
The First and Second Respondents therefore were bound to respect, uphold and defend the Petitioner’s political rights and those of his supporters as protected and recognized by Article 38 of the Constitution including, but not limited to, securing that the presidential election held on 4th March, 2013 was based on universal suffrage and the represented the free expression of the will of Kenyan electors for the position of President.
The First and Second Respondents failed to properly and correctly count, tally and verify the count of Presidential votes resulting from the presidential election held on 4th March, 2013 in breach of Article 138 of the Constitution of the Republic of Kenya.
The votes garnered by the Third Respondent were less than fifty per cent (50%) of the votes cast as required by Article 138 (4)(a) of the Constitution.
The First and Second Respondents unconstitutionally declared the Third Respondent, as the President-elect of the Republic of Kenya on 9th March 2013 following the said elections and the Third Respondent was therefore not validly elected as President or validly declared as so elected.
That the election was also vitiated by gross and widespread irregularities and/or malpractices which fundamentally impugned the validity of the results in ………polling stations as declared by First Respondent.
That the statutory violations and irregularities and/or malpractices described alluded to herein above, which were apparent on the Declaration Forms prepared by the First Respondent’s Officers and relied upon by the Second Respondent, had the direct effect of introducing into the aggregate of valid votes recorded in the polling stations across the country, a whopping figure of__________irregular votes, which vitiated the validity of the votes cast and had a material and substantial effect on the outcome of the election thereby rendering the same illegal, unlawful, null and void.
The First Respondent clearly and with calculate precision and by design adopted a procedure, policy and attitude that would ensure that the electronic voter registration, identification and results transmission in the presidential election held on 4th March, 2013 would fail and was bound to fail thereby ensuring that it could not and would not hold a free or fair or transparent presidential election, as it did.
PART V THE QUESTIONS AND ISSUES FOR THE DETERMINATION IN THIS PETITION.
Whether or not the Respondents, or any of them, was in breach of or contravened the provisions of the Constitution of the Republic of Kenya in any manner fundamental in relation the Presidential election held on 4th March, 2013, and if so, what is the consequence of the same?
Whether or not the Respondents, or any of them, was in breach of or contravened the provisions of the IEBC Act or the Elections Act and the Regulations or Rules made thereunder in any manner fundamental in relation the Presidential election held on 4th March, 2013, and if so, what is the consequence of the same?
Whether or not the entire electoral process from the procurement of BVR kits to the declaration, on 9th March, 2013 of the Third Respondent as duly elected President of the Republic of Kenya in the presidential election held on 4th March, 2013 and the conduct and supervision of the said election by the First Respondent was invalid and so fundamentally and irreparably flawed, unconstitutional and unlawful that no valid or lawful declaration could be made as the Second Respondent purported to do, and if so what is the consequence of the same?
Was the Third Respondent validly elected as President of the Republic of Kenya?;
What should be the Order as to Costs?
Whether or not the Honourable Court should issue any other or further Orders?
PART VI THE RELIEFS SOUGHT
REASONS WHEREFORE YOUR PETITIONER HUMBLY PRAYS THAT THE SUPREME COURT DECLARES THAT:-
The First Respondent’s process of procurement of Equipment, Registration of Voters, Conduct of the Presidential Election, Transmission and Tallying of the 4th of March 2013 Presidential election results was flawed and in breach of Articles 2, 10, 38, 73, 81(e), 86, 88 and 136 of the Constitution of the Republic of Kenya.
The Presidential elections held on the 4th of March 2013 were null and void.
The First Respondent and Second Respondent are in breach of their Constitutional obligations under Articles 10, 81(e), 86 and 88 of the Constitution of the Republic of Kenya in relation to the 4th of March 2013 Presidential election.
The First Respondent was in breach of its obligations under Rule 6, 9, 27 and 28 of the Election (Registration of Voters) Regulations 2012, Section 5 of the Elections Act and Articles 10, 81(e), 86, and 88 of the Constitution of the Republic of Kenya in relation to the Principal Register of voters.
The First Respondent was in breach of its obligations under Sections 59, 60, 61, 62, 74, 79 and 82 of the Election (General) Regulations, 2012.
The First Respondent and Second Respondent after the Presidential elections held on the 4th of March 2013 acted unconstitutionally and unlawfully in tallying the Presidential votes using erroneous Form 36 without counterchecking with the Form 34 in breach of Article 138(3)(c) of the Constitution of the Republic of Kenya.
The First Respondent and Second Respondent failed to properly tally and verify the count of Presidential votes in breach of Article 138(3)(c) of the Constitution of the Republic of Kenya during the Presidential elections held on the 4th of March 2013.
The Second Respondent is in breach of his Constitutional obligations under Article 75 of the Constitution of the Republic of Kenya in relation to the 4th of March 2013 Presidential election.
The First Respondent and Second Respondent are guilty of offences under the Election Act, 2011.
The Third Respondent was not validly elected as the President –elect of the Republic of Kenya at the concluded Presidential elections held on the 4th of March 2013.
The Third Respondent did not receive more than half of all the votes cast for the President-elect of the Republic of Kenya at the concluded Presidential elections held on the 4th of March 2013.
That the Third Respondent was not validly elected and declared as the President-elect of the Republic of Kenya at the concluded Presidential elections held on 4th day of March, 2013.
An Order of cancellation of the Certificate of Election as the President-elect of the Republic of Kenya issued by the First and Second Respondent to the Third Respondent at the just concluded Presidential elections held on the 4th day of March 2013.
The Petitioner’s fundamental rights under Articles 35, 38 and 47 of the Constitution of the Republic of Kenya were violated when the First Respondent and Second Respondent failed to properly tally and verify the count of Presidential votes in breach of Article 138(3)(c) of the Constitution of the Republic of Kenya during the Presidential elections held on the 4th of March 2013.
An Order that there be fresh election for the President of the Republic of Kenya in strict compliance with Constitution.
An Order that the costs of this Petition be borne by the Respondents.
DATED at Nairobi this day of 2013.
PETITIONER
ORARO AND COMPANY
ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY: -
ORARO & COMPANY,
ADVOCATES,
ACK GARDEN HOUSE, 5TH FLOOR
P.O. BOX 51236-00200
NAIROBI.
TO BE SERVED UPON:-
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION
ANNIVERSARY TOWERS, 7TH FLOOR
UNIVERSITY WAY
NAIROBI.
AHMED ISSACK HASSAN
ANNIVERSARY TOWERS, 7TH FLOOR
UNIVERSITY WAY
NAIROBI.
HON. UHURU KENYATTA
NAIROBI.
HON. WILLIAM SAMOEI RUTO
NAIROBI.
Effectively when TNA jamaas amended anything on their database the same was done on the IEBC DB and vice versa? Are you sure you understand how systems work or are just taking that line and taking it as gospel truth? Ideally for mirroring, data is one-way only from primary to mirrored server. I am not sure how two disparate systems could be editing different databases and not crashing the same!!