Presidential petition: What scrutiny of key IEBC forms revealed

Some of the documents that IEBC presented to the Supreme Court. Photo: Willis Awandu, Standard

The electoral agency submitted all result forms for scrutiny in order to give the Supreme Court a clear picture on how Kenyans voted on August 8.

A report, which was submitted by the registrar of that court Esther Nyaiyaki to the judges, seen by The Standard indicates 41,451 forms 34A were presented by Independent Electoral and Boundaries Commission (IEBC) in the presence of President Uhuru Kenyatta’s agents together with those of National Super Alliance Presidential (NASA) candidate Raila Odinga.

The commission also presented 291 forms 34B and one form 34C which was used by its chairman Wafula Chebukati to announce the incumbent as the winner.

In court, Mr Raila submitted that his opponent was announced the winner minus evidence from 10,438 forms 34A.

This, according to the former Prime Minister, translated to seven million votes being not legally accounted for.

“I needed to ascertain the number of forms delivered. This was done by matching the index with the list of all constituencies per county against the forms received per constituency. As per our count we received 41,451 forms,” the registrar reported.

After ascertaining the count, the registrar went ahead to check whether IEBC had original forms and certified photocopies which were obtained by the returning officers to tally the results.

She noted that some of the documents handed over to her were carbon copies  while others appeared to be photocopies.

Another observation was that forms 34A for Mandera West were not among those that had been submitted but they were provided upon request.

There were also 10 copies of scanned Forms 34A which were labelled illegible. Asked where the original forms were, the commission’s representatives explained that their originals were locked up in ballot boxes.

Ms Nyaiyaki also explained that she also noted other forms had not been stamped or signed.

Raila's representatives then requested that they should be allowed to further examine same forms in order to distinguish fake from genuine ones.

The team which was representing President Uhuru Kenyatta did not oppose the proposal, but said they also wanted to check each form that the other side checked.

On form 34C, the team noted that it had no security features and serial number. “The form looked like a photocopy,” she explained, adding that Uhuru's agents observed it was a photocopy of the original and had been certified by an advocate of High Court.

She said the same form had signatures from IEBC and other agents who were present in Bomas, except for the ODM agent. There was a comment that the agent declined to sign.

Out of the 291 forms 34B, the registrar noted that 236 had water marks. However, 56 of the same did not bear the security feature.

The report reads that 281 forms were signed by the returning officers and out of the lot, 225 forms had been signed and stamped by a returning officer.

Only 31 forms did not have a serial number and 32 others were not signed by the agents.

The team assessed 4,120 forms from randomly picked 32 constituencies and found 189 did not have hand over notes and 287 had no take over notes. Only 103 forms 34B had the notes.

On the floor of the court, IEBC had explained there was no need for hand over notes as the forms were being scanned and sent electronically to the returning officers in the constituencies and the National Tallying Cente.

The registrar also observed that some of the forms 34A presented by IEBC were carbon copies while others did not bear the IEBC stamp.

“Some forms were scanned copies which were stamped while others were photocopies,” she said.

On the report, Raila's lawyer James Orengo said: "I can barely talk, I can't believe what am seeing. The two reports that you have accepted are two smoking guns. I was adding two more smoking guns."

"Most of the forms 34B have been signed by the returning officers and the agents. That demonstrates the fallacy that many forms 34A were missing is untrue," President Kenyatta's lawyer Fred Ngatia submitted.

He added: "There is no allegation that there is numerical difference between forms 34A and 34B. This fortifies what we have said all along that this was a fair credible election within the parameter of conducting an election."

IEBC lawyer Paul Muite said: "You cannot be asked to nullify a presidential election on suspicions. No one is challenging the numbers. You have not been told that the figures in forms 34A and 34B were cooked. Once you are satisfied about the figures, the sovereign will of the people was captured. Forms 34C was completed most perfectly as it was signed before everybody, and in front of the media."

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