Re-tally, verify: Why Raila and Karua are not pushing for a fresh election

"The conduct of the 2022 presidential election must therefore be framed against the backdrop of what happened in 2017 and the following warning that this Court sounded when it annulled the presidential election conduct on," Raila and Karua's submissions read in part.

The two accuse the commission of a remediated and willful attempt to subvert the Constitution and an attempt to establish a government without complying with the Constitution. Raila and Karua have also condensed their prayers into three. They are first asking Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaack Lenaola, and William Ouko to nullify the declaration by the IEBC's chair Wafula Chebukati.

After nullification, they argue, the court should count and declare them as the duly elected president and deputy president-elect. In the alternative, they pray, the Supreme Court should find that IEBC as presently constituted is incapable of presiding over and rendering a proper, credible, and verifiable election.

The last prayer is that a declaration be made that all the votes affected by each and all irregularities are invalid, should be struck out from the final tally, carry out scrutiny of the genuine votes and find that as the valid outcome of the presidential election.

"The Petitioners contend that the conduct of the 09th August 2022 presidential election, subverted the constitutional order that Kenyans fought for; and the aspirations of the people for a government based on national values and principles including rule of law, good governance, constitutionalism, integrity, transparency and accountability," the two add in submissions filed by Paul Mwangi and Mwangi and company advocates.

According to the Azimio duo, in 2017, the Supreme Court held that there were irregularities and illegalities. They assert that nearly everything that the court identified by the court in 2017 continued in the repeat election thereafter and in 2022. The submissions continue: " It is in fact ironical that despite this Court's elaborate guidance on what would lead to invalidation of an election, the 1st and 2nd respondents (IEBC and Chebukati) performed even more dismally in the conduct of 26 October 2017 election than they did on August 8, 2017 presidential election.

They claim that in 2022, Chebukati's declaration of Deputy President William Ruto as the winner had a margin of 233,625, 766. However, they claim that the margin with which Ruto was declared to have met the threshold was only 0.49 per cent of the total number of the registered voters and which was only 69,000 votes. Raila and Karua now say that the mathematical differences and errors reveal that the votes were systematically recalibrated in order to benefit Ruto.

At the same time, the two argue that they have demonstrated in their court papers that the Kenya Integrated Electronic Electoral Management System (KIEMS system deployed by Smartmatic International B.V. for purposes of the 2022 General Elections failed the test of security and transparency and was incapable of delivering a verifiable and accurate result.

They assert that third parties breached the security and integrity of the kits. " The election and the 'result' purportedly declared therefrom unilaterally by the 2nd respondent (Chebukati) was so badly compromised that it cannot be characterised as that of an independent body," they argue adding that evidence shows that third parties and senior employees of the IEBC were acting in connivance.

According to them, the saga involving Venezuelans Jose Camargo, Joel Gustavo and Salvador Javier Sosa cannot be wished away.

They ask the court to order the Directorate of Criminal Investigations (DCI) to table the report it prepared on the involvement of the three on the election process. The Azimio duo argue that Venezuelans arrest at the Jomo Kenyatta International Airport (JKIA) with election materials was an indicator of how IEBC was allegedly casually handling the election process.

According to them, the glaring issues Azimio is raising now were bound to show up. Raila and Karua revealed in their submissions that they will line up Benson Wesonga, Bernard Adongo, John Githongo will testify on deliberate systematic corruption, compromise and subversion of all the three facets of the kits.

According to them, each KIEMS was supposed to send one form 34A that is uniquely geo-fenced and tied to the kit's unique QR code. However, they say, the kits were able to send multiple forms and there were forms whose geo-locations were remotely changed.

"The above transgressions, taken in isolation or together were deliberately orchestrated with the full connivance of senior staff of the first respondent and the second respondent long before August 9, 2022.

The evidence from the Director of Criminal Investigations and the second petitioner (Karua) shows that foreigners of Venezuelan origin were in possession of sensitive strategic IEBC electoral equipment and information; and were able to remotely control and manipulate the IEBC systems," Raila and Karua state.

Raila and Karua state that the DCI report is supported by the analysis of Prof Walter Mebane. According to them, he is an expert detailing electoral fraud.

They argue that Mebane found that at least 5,832 of 44,948 polling stations in his analysis are classified as e-forensics fraudulent.

"Prof Mebane declared that 'given the narrow margin in the election, even a small number of votes produced by malevolent distortions of electors' intentions - by bad acts- might have changed the outcome of the vote in the sense that the winner might not have the most votes or might not have enough votes to avoid a second election round if fraudulent votes could be removed or correctly compensated," their 77-page submissions reads.

The two also argue that there was an abnormal delay in the transmission of Forms 34A from polling stations ranging from 30 minutes to five hours and when it happened, 11,000 forms were allegedly 'dumped' into the public portal.

On the forms tampering, they argue that it was evident that the forms were manipulated as they appeared in PDF instead of JPEG format.

The two assert that there was 'a man-in-the-middle' who had rights to intercept and manipulate data.

They argue: "The conversion of images of Form 34A could not have been done without the knowledge and connivance of the Commission, which is by law mandated to develop specifications for the procurement of new or updated election technology and therefore knew or ought to have known that the forms uploaded onto the public portal were in a format other than that which they procured."

Meanwhile, they state that Chebukati has no power to unilaterally announce the winner. According to them, Chebukati cannot announce tally, verify and declare a winner without a completed corporate process of internal tallying, verification and approval of tallies by the commission.

"Nowhere does the Constitution vest any standalone power in the IEBC chairman. The interpretation above is the only reading consistent with the powers and functions of the 1st Respondent under Article 88," Raila and Karua argue.