IEBC robbed us of victory - Raila Odinga and Martha Karua

Their main contention is that the conduct of the presidential election from the day of voting on August 9 until the declaration of results on August 15 failed to comply with the constitution and relevant electoral laws.

Among the issues they raise are that the election was not conducted by an independent body, it was not transparent and was not administered in an impartial, neutral, efficient, accurate and accountable manner.

"Failure and non-compliance with the cardinal principles of a fair election were made clear by the public display of a dysfunctional, disunited and non-compliant Independent Electoral and Boundaries Commission (IEBC) where the commissioners were at loggerheads with the chairman," says Mwangi.

The Azimio team argues that the errors in the August 9 presidential election were not minor or occasioned by human imperfection but were a deliberate plan by a rogue chairperson who was out to undermine the process to secure a fraudulent result.

Raila and Karua have turned their guns on IEBC Chairman Wafula Chebukati, terming him a rogue public officer who should not have been allowed to oversee the presidential election and should be charged for criminal offence.

According to the petitioners, Chebukati is the sole problem that has bedevilled IEBC since 2017 when five commissioners resigned because of his misconduct while four commissioners disowned his decision to declare Ruto as president-elect.

"He is a rogue public officer who with willful, fraudulent and criminal intent set out to subvert the sovereign will of the people and the constitutional order. He is culpable of grave misconduct and is not fit to continue holding that office," they say.

They accuse Chebukati of taking the commission as a personal property in which he makes decisions unilaterally without consulting other commissioners.

They claim that Chebukati committed electoral fraud and denied them victory by declaring the presidential results without verifying and tallying results from 27 constituencies whose count had an impact on the final results. The constituencies include Mvita, Matuga, Kilifi North, Bura, Fafi, Wajir North, Eldas, Mandera West, Tigania East, Mbeere North, Ndaragwa, Kapenguria, Kacheliba, Narok North, Narok South, Narok West and Kajiado East.

IEBC Chairman Wafula Chebukati and his deputy Juliana Cherera at the Bomas of Kenya on August 22, 2022. [Denish Ochieng, Standard]

Scheme to interfere

Others were Kanduyi, Nyakach, Rangwe, Ndhiwa, Suba North, Kuria East, Bomachoge, Borabu, Kitutu Chache North, and West Mugirango.

Their argument is that had the IEBC carried out the correct verification and tallying of the constituencies, Ruto would not have attained the constitutional threshold of 50 per cent plus one vote to be declared president-elect.

"We will demonstrate with evidence that Dr Ruto did not meet the threshold and that Mr Chebukati had an elaborate and premeditated scheme to interfere with the election and to defeat the security, integrity and credibility of the presidential election," says Mwangi.

According to Raila and Karua, the public announcement by four commissioners - Juliana Cherera, Justus Nyang'aya, Francis Wanderi and Irene Masit - also proved that the election was compromised and that Chebukati could not legally declare the results while there were dissenting issues from the four.

Mwangi submits that the four commissioners exposed the behind-the-scenes interference and suppression of the electoral process, which was planned from the beginning to deny Raila and Karua victory.

"The public accusations and counter-accusations from the commissioners exposed the more critical fact that the electoral process had not been transparent, impartial, neutral, efficient, accurate and accountable," say the petitioners.

They revisited the nullified 2017 presidential election when the Supreme Court ruled that an election is a process and not about the final results garnered by all the candidates.

According to the petitioners, IEBC did not comply with the guidelines issued by the Supreme Court in 2017 and that the chairman removed all the checks and balances that ended up destroying the credibility of the elections.

Raila and Karua in their petition also claim that IEBC reduced their votes by suppressing the number of voter turnout while increasing the number for their opponent.

"The chairman made a public announcement that the voter turnout was 65.4 per cent equivalent to 14,466,779 voters and that the number would increase once manual voters were identified. However, he declared 14,213,137 as the voter turnout to deny us our votes," they says.

According to the Azimio team, the commission cannot account for over 250,000 votes and that the discrepancy cannot be dismissed as a simple mistake since it was part of the wider scheme to deny them victory.

The team further accuse IEBC of recruiting foreign nationals who had access to their systems and helped in altering forms 34A and changing the total number of votes garnered by Raila.

They gave the example of 42 polling stations in which forms 34A issued to Raila agents were different from the ones submitted to the national tallying centre. They claimed that in those centres, Raila's votes were systematically deducted by 100 and added to Dr Ruto's tally.

They want the court to declare that the presidential election was not done in accordance with the Constitution and declare them the winners or order a fresh election within 60 days.