Supreme Court allows NASA to audit IEBC election materials

NASA Presidential candidate Raila Odinga(C) with his Deputy Kalonzo Musyoka(L) and Co-Principal Moses Wetangula(R) joined Repentance and Holiness Ministry faithful at Central Park in Nairobi on Sunday 27/08/17.[BONIFACE OKENDO]

The Supreme Court Monday morning allowed the National Super Alliance to scrutinise IEBC election system granting them read-only access to select servers with leave to make copies of Forms 34A and 34B.

Justice Isaac Lenaola gave the Supreme Court ruling that IEBC should submit certified copies of original Forms 34A and 34B.

He said the petitioners should also be given access login trails of users into the IEBC servers and granted access to firewalls without endangering their software.

The petitioners will also be given access to the password policy and password matrix. 

Each party was allowed to only two agents to take part in the audit process which will be overseen by the Supreme Court Registrar.

According to Chief Justice David Maraga, the application by NASA leaders Raila Odinga and Kalonzo Musyoka had many issues the judges need to consider and which they did not finish in time to deliver a ruling.

Auditing of forms 34A and 34B and IEBC servers and logs is at the centre of NASA’s claims of irregularities and inconsistencies during the elections, and the results would be key in determining whether they will prove their case to warrant invalidating the elections.

All focus will now be on the outcome and discoveries claimed by NASA.

Interested parties

The judges allowed Attorney General Githu Muigai to join the application as amicus curiae (friend of the court) despite opposition from NASA.

Prof Muigai had a limited role in helping the court make a determination of the dispute within the 20 minutes he was allocated.

“We have noticed that many issues the AG wants to submit on have already been mentioned by the other parties in the case. We will allow him to participate but only limited to one issue of advising the court on the effect of the Court of Appeal decision on tallying of presidential results,” said Maraga.

The Law Society of Kenya was also allowed in as an amicus curiae, with the judges noting that the dispute was of great public interest touching on the people’s sovereignty, which justifies LSK's participation.

Prof Michael Wainaina, an independent presidential candidate, was allowed to join as an interested party. The court ruled that having participated in the election, any outcome of the case will affect him, which justifies his inclusion.

Prof Wainaina, in his application, opposed NASA’s case and is siding with the Independent Electoral and Boundaries Commission to defend President Uhuru Kenyatta’s win.

Thirdway Alliance candidate Ekuru Aukot was also allowed to join as an interested party.

Dr Aukot, in his application, supported the NASA case, saying his party’s audit of the election results revealed irregularities which made the elections a fraud.

“Prof Wainaina and Dr Aukot actively participated in the elections and have a stake in the outcome of this petition. They are justified to join the petition as interested parties,” ruled the judges.

Several other parties who had applied to be allowed to join were, however, unlucky as their applications were declined. They included lawyer Charles Kanjama, whose application was rejected on grounds that he has no expertise to bring to the case.

Others whose applications were denied were the Information Technology and Communication Association of Kenya, Mr Isaac Aluochie, and Mr Benjamin Wafula.

-Additional reporting by Paul Ogemba