How the Orange party unearthed rigging of polls

On December 30, 2007, Kivuitu announced that Kibaki was the winner, having garnered 4,584,721 votes against Odinga's 4,352,993 - a difference of 231,728 votes. On the same day, the figures printed by ECK gave a different set of results: Raila Odinga: 4,352,993 and Mwai Kibaki: 4,584,721, indicating that Kibaki had won by 231,738 votes. These differences are indicative of the confusion that reigned at ECK before the results were announced, confusion that added to chairman Kivuitu's confessed uncertainty about who won the presidential election.

The ODM audited and reconciled results were obtained in two stages. First was an examination of the undisputed results from 161 of the 210 constituencies, excluding Kamukunji, where the presidential vote figures provided by ODM polling and counting agents agreed with the results announced by ECK at KICC.

The tally of votes from these undisputed constituencies gave Raila Odinga what appeared as an unassailable lead of 3,734,972 votes against Mwai Kibaki's 2,269,612. At this stage, Odinga was leading by 1,465,360 votes. With less than 50 constituencies yet to be tallied. In the second stage, tallies were examined for the 48 constituencies in which the audit committee had exposed anomalies.

This exercise established that a total of 471,063 votes were unilaterally and illegally added to Kibaki's tally at KICC. There was further evidence that votes were unilaterally deducted by the ECK at KICC, leading to a net loss of 2,772 votes to Odinga. The ECK, therefore, inflated Kibaki's win by (471,063 +2,772) 473,835 votes. This analysis was made purely on the basis of documentary evidence obtained from the ECK. It is reasonable to believe that, with further evidence becoming available, the tally for Kibaki could have been further reduced, while that of Odinga could have increased.

The second stage was examining variances in the results announced at the constituency tallying centres against those declared at the ECK's 'tallying centre at KICC. The evidence of electoral manipulation was undeniable. The first set of this evidence comprised crossed out figures in Form 16A.

Crossed out

Returning officers simply crossed out the original figures and wrote new ones alongside the old. For instance, in Kieni Constituency, Form 16A, dated December 28, 2007 was altered to inflate Mwai Kibaki's votes by 17,677, from the 54,377 declared and recorded by the returning officer at the constituency level to 72,054. A new Form 16A, dated December 29, 2007 was later issued by the ECK with conflicting figures and signed by a new official. It slightly increased Raila Odinga's votes by 67, from 513 to 580.

In Mwea Constituency, Form 16A, dated December 28, 2007, was altered by the ECK at KICC to inflate Kibaki's votes by 2,470, from the 59,904 declared and recorded by returning officer at the constituency level to 62,374, and to reduce Raila Odinga's votes by 237, from 550 to 313. The total presidential votes cast, 63,376, exceeded by 1,000 the total parliamentary votes cast of 62,376. The original figures for Odinga and Kibaki tallied with the total parliamentary votes cast.

The same applied to Kirinyaga Central Constituency, where Form 16A, dated December 28, 2007, was altered by the ECK at KICC to increase Kibaki's votes by 10,353, from the 43,866 declared and recorded by the returning officer at the constituency level to 54,219. A new Form 16A, dated December 29, 2007, was issued by the ECK at KICC with conflicting figures and signed by the same official, reflecting the inflated totals of 54,219 and marginally increasing Odinga's votes by 13, from 580 to 593.

The total presidential votes cast were 55,380, against the total of 44,446 parliamentary votes, a difference of 10,934 votes. According to ECK records released to ODM, the total parliamentary votes cast for Mathioya Constituency was 39,052. However, the total presidential votes cast was given as 44,761, an increase of 5,709 votes. The additional presidential votes were added to Mwai Kibaki's tally.

Additionally, there were confessions by election officials at constituencies and KICC who were pricked by their own consciences and believed that truth would set them free. These officials included commissioners, returning officers, presiding officers and clerks. Very telling was Kivuitu himself admitting that he was not sure that Kibaki won the elections fairly; documents were tampered with by ECK officials after the announcement of the results; he was aware that ECK officials, especially in Central and Eastern provinces, were 'cooking' results before the completion of tallying: he was not in control of his officials in the critical tallying period, when he said that, in some in key constituencies where votes are known to have been rigged had 'disappeared' or "switched off their phones", and he announced the results under duress from PNU and the Kalonzo Musyoka led ODM-Kenya party.

Having collated the vote-tallying from the undisputed 161 constituencies and following adjustments made by deducting the votes added unilaterally by the ECK to Kibaki's tally, and adding the votes subtracted from Odinga's, the cumulative result of the presidential election tallying indicated that Raila Odinga won the presidential election with 4,356,001 votes against Mwai Kibaki's 4,109,014 votes, giving a margin of 246,987 votes. This analysis was conservative, having been made purely on the basis of documentary evidence obtained from the ECK. It is reasonable to believe that, with further evidence becoming available, the tally for Kibaki could have been further reduced, while Odinga's could have increased.

Perhaps the most telling sign of vote rigging was that the ECK itself contemplated going to court to challenge its own results when Odinga and ODM indicated that the court option was not featuring in their plans.

Many have challenged us to explain why we did not file a petition. We had overwhelming evidence - from testimonies of party poll and counting agents who had been ejected from polling stations and constituency tallying centres; to Forms 16A with multiple crossing out of vote totals and confessions of electoral officers, among others. As the ODM strategy team we analysed this evidence with the some of the best legal minds in the country. We were convinced that we had a watertight case that no judge in his or her right mind would dismiss.

Presidential petition

But we would not go to court. Reason? The rigging was well planned and executed. Indeed, the authors of this electoral theft had anticipated a presidential petition. It started with Kibaki's appointment of ECK commissioners without following the 1997 IPPG guidelines, and with the appointment of new judges just before the elections. The contention by Kibaki that ODM should seek redress in court was part of the electoral fraud script, as it was aimed simply at tying ODM up in court for years, while Kibaki illegally occupied office. This explains why Kibaki's agents put pressure on Kivuitu to announce doctored results. We took note of the fact that some electoral petitions issuing from the 2002 General Election were still pending in the courts five years later. When the MPs' parliamentary term had already lapsed. We also took notice of the alacrity with which Chief Justice Evan Gicheru administered the presidential oath of office at dusk on December 30, 2007.

Indeed, Gicheru was already at State House in official robes ready to swear in Kibaki for the second term as Kivuitu was made to declare Kibaki the winner in the presidential contest. We would not fall into the trap of going to canvass our case before a bench appointed by Judge Gicheru, and perhaps presided over by him.

We held a meeting with members of the ODM Pentagon and gave reasons for rejecting the presidential election results. Other entities, including local and international election observers and CSOS also concurred that 2007 presidential election was rigged. On December 31, the European Union Observer Mission released details of the 'cooked' presidential poll results which, in their description, showed 'serious inconsistencies and anomalies'.

The EOM dismissed the results as lacking credibility and averred that the General Election as a whole fell below international and regional standards. Addressing a well-attended media conference, the leader of EOM, Alexander Graf Lambsdorff, noted that "problems started after the polls closed and the EU election observers were turned away from tallying centres, especially in Central Province."

He corroborated reports by ODM agents and civil society observers that a good number of returning officers had gone missing before submitting their results. The CSOs formed a network called Kenyans for Peace with Truth and Justice (KPTJ) comprising more than 30 NGOs and other non-state actors to agitate for electoral justice.

Their demands coincided with ODM's, which were: to demand justice and the reversal of the election results; recognition that justice and lasting peace cannot be achieved through the courts, in which the public has no faith; and that sustainable peaceful mass action and civil disobedience be pursued simultaneously with a process of dialogue mediated by internationally respected statesmen and women to resuscitate Kenya's democracy, which was on its death bed.

On the same day, five ECK commissioners, unable to live with the guilt of betrayal, broke ranks with Kivuitu and other ECK commissioners to disown their own results. Ambassador Jack Tumwa, Samuel arap Ng'eny. Alfred Ndambiri, Joseph Dena and Jeremiah Matagaro called for a judicial tally of the presidential results, saying: "We cannot remain silent in the circumstances. ECK stands accused and we are not running away from responsibility."

Part Three tomorrow: The grand betrayal: Kibaki's promised change, kept status quo