In 2017, the predominant opinion in NASA was that the Supreme Court was worse than before. Four judges were from the Bench of 2013 (which had ruled against Raila’s petition challenging Uhuru Kenyatta’s first election victory).
The main consideration in the mind of NASA leaders was whether the judges would have the confidence to demand a scrutiny of the server. Given the massive evidence NASA had unearthed on doctoring of the results in the server, proof of unauthorised access to the system would be the main body of the evidence. The judges’ capacity to do justice in this regard was not assured, just as NASA’s own ability to obtain irrefutable evidence.
The coalition had agents in all the 290 constituencies, but in many of these, the results were not announced in the manner set out in law. The Parallel Tallying Centre therefore had no figures of its own.
After nearly two days of silence, on the 13th Raila held two public rallies in Kibera and Mathare. “The fraud Jubilee has perpetuated on Kenyans surpasses any level of voter theft in our country’s history. This time we caught them,” he tweeted later.
NASA kept pressure on IEBC, writing three letters demanding Forms that were used to declare the result. On the 15th, IEBC chief executive Ezra Chiloba wrote to NASA saying he had not received all Forms 34As, but he would provide only Forms 34B that were used in declaring the result.
This was enough proof that the constitutional requirement of verification did not take place. IEBC was by now deleting forms it had initially posted on the portal, several of which had been downloaded and saved by activists and NASA supporters.
Take petition to Supreme Court
One of the most widely shared forms, from Bulla Dudacha Polling Station 2, which was filled in on an exercise book leaf, had been replaced.
The idea that Raila would not go to court to challenge the results should Jubilee win had two positive effects; it made IEBC complacent and allowed concerned voters in Uhuru strongholds to publicise their own knowledge of the rot without being seen as helping Raila. Unfortunately, on the NASA side, this belief had made officials too complacent in collecting the growing body of evidence which, even if Raila would not go to court, should have been preserved for whatever public process the coalition decided to pursue.
On the 16th, I was settling back in my office when I received a call from Hamida Kibwana, the officer in charge of electoral operations at the NASA headquarters. She asked me to quickly go to Raila’s office at Capital Hill to discuss something with him.
When I arrived, she broke the news to me that Raila and Musyoka had decided the previous day that they would take a petition to the Supreme Court. Kibwana said she was assembling different teams to collect evidence for the case, which had to be filed within two days.
Her senior team of strategists had developed a catalogue of issues to look out for and devised a system of documenting the evidence, but now she needed a team of individuals who could go through all the documents the coalition had received from IEBC and record the evidence for the lawyers. She wanted me to lead a team of volunteers and students who would be arriving within the hour to undertake a scrutiny of all the forms.
Within the hour, several people arrived at the office, among them university students. We wanted to start by training the volunteers on what to look out for in the scrutiny but this was frustrated because internet connection at Capital Hill was poor. We decided to move to Okoa Kenya offices where we arrived just as Raila, Musyoka and Mudavadi were finishing the news conference at which they announced their decision to go to court.
By 7 pm, Kibwana had got together nearly 30 people, none of whom I had met before. Some were from the NASA constituent parties. She conducted the training for about half an hour, teaching us how the forms were filled and pointing to the areas to watch for.
The main task was comparing the figures in Forms 34A and 34B. After the training, she called me aside to tell me what would scare me to the core. The intelligence service got wind of NASA’s decision to go to court before it was publicised and was doing its best to scuttle the collection of evidence. She had two other scrutiny groups, and one had been raided, forcing her to relocate the team to Raila’s home in Karen. For this group, I should try to take whatever precautions I could. She would provide security officers to guard us through the night, and no one should enter or leave the compound without me knowing. All our findings should be recorded by pencil on the forms, and these typed into one computer, the report of which should be emailed as soon as it is finished, to an account she would provide within the hour.
To ensure that we did not lose everything if raided, she would only leave me with a few Forms 34B to start with and the rest supplied later. I had to devise a system to keep only forms that were actively being worked on at the tables and hide the rest in unlikeliest of places within the premises. Soon after she left the compound, a group of about eight bouncers arrived to keep watch. Their head was a familiar face from Orange House, the ODM headquarters. He described what their approach was, which included locking the doors from the outside.
My first worry was where to keep the documents. There was no unlikely place within Okoa Kenya to keep documents as all the rooms had been turned into offices. We devised a weak system which, though my colleagues in the scrutiny were not aware of, would be unearthed too easily by any police officer worth his salt.
We toiled throughout the night, and even for us not well versed with the electoral process, the scrutinyrevealed omissions and commissions too big to have escaped the attention of well-trained IEBC officers, and largely indicating evidence of premeditated rigging.
While Kibwana did her best to keep the scrutiny professional, the exercise was beset by the institutional weaknesses I had observed in most NASA operations. When the guy she had sent with additional forms brought them to us at around 1am, he tried to change the system of reporting we were using, but when he explained his new system it arrived at the same result as the one Kibwana had set in place. Equally strange was the lack of communication at the top as to how much time we had.
Re-assemble team to start scrutiny
By around 4.30am, some of the team members who were in employment started leaving to go and prepare for their workday.
Our internal understanding was that those who remained would continue working until Kibwana arrived at around 8am to collect the material. When the lawyers at the last stage of reporting left just before 6am, we had to stop working.
Come 7am, Kibwana said she would not be coming to oversee the work, but instead would be sending Olga Karani, who had been the NASA Deputy Chief Agent at Bomas. When I reached Karani, she said I should continue working with the team until 4pm and hand over one complete report.
But no sooner had we finished the call than the guy from the previous night arrived, with instructions that my team should hand over everything to him. With my work done, I went to my office to work for half a day before taking the whole afternoon off.
To my utter shock, Kibwana called me around 7pm that night to say that I should re-assemble the team to start the scrutiny from where we had left. It was too late to convene the team, most of whose telephone numbers I had not taken. Moreover, I had made it clear to those whose numbers I had that the work was complete.
The man who had brought the confusion seemingly had taken the forms without explaining the status of our work. It was by good luck that the final report from the clearing desk was being emailed to Kibwana at different stages, otherwise the whole effort would have been lost.
The last day to file petition, August 18, came with anticipation. Journalists camped at the Supreme Court from early morning waiting for NASA to file its highly anticipated case. It was not until around 9pm that Raila arrived at the Supreme Court with a lorry-full of poll rigging evidence. Petition filing lasted past midnight.
What led Raila to change his position of not going to court is a mystery, but the main reason I learnt from aides was that he wanted to buy time as he thought through a strategy to continue political activism over the rigging. At his press conference announcing his decision to petition the election, he said that the crackdown on civil society groups that could have gone to court left him with no option but to file the case himself.
His aides believe that US pressure influenced the decision. So high-up was the level of contact between the US and Raila that former President Barack Obama himself placed a call to Raila urging him to use ‘legal means’ in challenging the result if he believed there was evidence of foul play.
