My take on Odinga Petition & my prediction on SCOK ruling.

[RV Pundit]

• Tweet

Summary.
The Petition
1) Odinga filed a petition supported by written affidavits & evidences. The petition is here http://www.judiciary.go.ke/portal/assets/filemanager_uploads/A%20-%20Presidential%20Petitions%202017/The%20Petition.pdf
2) Odinga raises a lot of legal questions - some settled by the very same SCOK - that he want revisited - but essentially it boils down to.
     1) SCOK to interpret Maina Kiai (civil Appeal 105 of 2017) (http://kenyalaw.org/caselaw/cases/view/137601/) -which emanates from high court ruling(http://kenyalaw.org/caselaw/cases/view/133874/ - Did Chebukati declare the results without all FORM 34As.
     2) SCOK to re-look Itumbi rulling on rejected/valid votes don't count.
     3) SCOK to declare Sec 38 (Election Act) - _{No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election}

3) Odinga raises evidence of IEBC incompetence, fraud, forgery & Uhuru's violating the law (via CS campaigning/Intimidation of voters in Makueni).

The responses
1) IEBC responded refuting nearly all Odinga allegations - and where it conceded - demonstrated the errors were innocent,minuscule & fair.
2) Uhuru similarly refutes nearly all Odinga allegations

The Interlocutory matters
Odinga filed interlocutory application for access & audit to form 34s and servers supported by more affidavits .
The judges partially accepted the requests but strike out those affidavits from the main petition or any attempt to use the result of the audit to file new evidence.

The Hearing
Unlike 2013 where the battle was on specific polling stations - some had to be re-opened and recounted - this time the battle was mainly on the law or procedures. Maina Kia civil rule 105 of 2017 seem to be the center of all the arguments. Also IEBC regulations - of how form 34 should look or feel - rather than it's CONTENT seem the main contention. How election should be transmitted - rather than Transmitted Content - seem the main argument by the petitioner.

The Audit Results of Odinga Interlocutory Application
Out of this came two reports by SCOK Registar and SCOK IT Expert.
SCOK registrar showed contrary to Immaculate Kassait assurances some forms didn't have some security features (i.e water-mark). IEBC contends that Form 34s do not need to have them.
IT report doesn't show any hacking.
Each party allowed only 10 mins to "comment" on the reports.
My Conclusion of the Judges rulling on Friday.
1) Maina Kia rulling - both in high court and court of appeal is very clear - IEBC cannot correct or verify or vary - any figures received from lower levels. PO form 34s A is final. RO form 34 B is final. Form 34C is final. They can only reject those that exceed registered votes. Chebukati did not need to see form 34s A to declare the results. He only needed to see form 34Bs.
2) Prayers for on rejected or invalid votes  & Sect 38 is desperation. SCOK & common sense is enough to dismiss those.
3) The paucity of evidence from Odinga is very apparent. It's more about FORM than SUBSTANCE. Its CONJECTURE/SUSPICION over FACTS. The absolute absence of proof that any single polling station was rigged is striking. Odinga just raises suspicion - the forms doesn't look legit, the number of presidential votes look many, the rejected votes look a lot, they reported too early. There is no demonstration that on polling station XYZ - voting went this way, counting this way - but eventually what was declared in Forms 34 A and 34 B was this.
4) Interlocutory reports are problematic for me - are they evidence that SCOK can rely on - without each party getting a chance refute or respond?I belief these reports are background information that SCOK can use to understands what went down and their usage will be limited. The evidence is what is tendered in the petition and responses thereof. I could be wrong because this civil case - therefore Judges have the right to seek out evidence/truth - unlike a criminal case that is adversarial.
5) Even if the two reports are admitted - IEBC will get away with non-signatures & non-water mark & non-handovers(obsolete) because they are not requirement of law. NASA would have to go to parliament and make that requirement of law.
6) Finally the 1.5M gap, the endorsement by all observers of IEBC work as being free, fair and credible  and paucity of evidence mean Uhuru election will be upheld.

And that is all - until we meet again on Friday.

[vooke]

If the election is nullified on procedure, I suppose there will be an avalanche of petitions for other elections as well on the same basis. What's good for the goose is good for the gander.

On procedure I think it is about materiality contrary to Orengo's protestation. There has to be a threshold else we will forever have elections nullified. The report by the Registrar will shed some light.


On Kiai, I think SCOK will be lenient on Chebukati. The same way Chebukati trusts a duly filled and signed form 34A, and does not 'verify' it by a recount before accepting it, he is bound to accept a form 34B without tallying from forms 34A. Either that, or we go back to the provisional results era.

[RV Pundit]

1) On precudure - They'd had to declare Sec 38 of election act null and void - and open a pandora box. Secondly the evidence from observers is overwhelming.Election was free, fair and credible. It was not bungled. It was not chaotic enough to be declared null and void.
2) Main Kiai rulling is very clear. Chebukati verification is perhaps to confirm that he is getting form 34B from the authorized RO. He cannot verify the figures. He has no business looking at Form 34 As. If there is any problem with figures - it goes straight petition - and each PO or RO is individually held responsible.  The RO verification of form 34As is also restricted to those that exceed registered votes.

If the election is nullified on procedure, I suppose there will be an avalanche of petitions for other elections as well on the same basis. What's good for the goose is good for the gander.

On procedure I think it is about materiality contrary to Orengo's protestation. There has to be a threshold else we will forever have elections nullified. The report by the Registrar will shed some light.


On Kiai, I think SCOK will be lenient on Chebukati. The same way Chebukati trusts a duly filled and signed form 34A, and does not 'verify' it by a recount before accepting it, he is bound to accept a form 34B without tallying from forms 34A. Either that, or we go back to the provisional results era.

[Nefertiti]

I agree Jubilee wins yes. No evidence.

An overturn would be good and bad for both camps
1. NASA would suffer a second loss for PORK
2. The avalanche of downstream petitions would result in some NASA wins in swing areas they lost to infighting - like Lamu

[RV Pundit]

NASA moving target I think eventually rest on what omollo is calling - 5M votes - from Form 34 Bs that don't have water-mark and 5 that don't have signatures.

The question is simple. Is it enough to overturn results if Form 34B doesn't have a water-mark or signature.

The answer is simple. IEBC regulation that prescribes or define how those forms should be has all the answers.

They don't have to contain any of those security features or signatures.

I agree Jubilee wins yes. No evidence.

An overturn would be good and bad for both camps
1. NASA would suffer a second loss for PORK
2. The avalanche of downstream petitions would result in some NASA wins in swing areas they lost to infighting - like Lamu

[Omollo]

1. The IT report has no avenue to say "hacking". It is sufficient to state that unauthorized access. The court is not blind, deaf or dumb and knows that Chirchir (who installed software) was also a Jubilee appointed election agent;
2. Forms not having security features when they were supposed to have them means they are forgeries. Especially when the IEBC has gone so far as to list those security features and WHY they are there notably to rule out FORGERIES. I hope you followed the discussion between Muite and the bench (assuming you were able to hear Muite over the harangue and filibuster)
3. The form 34 without security marks and signatures of RO are invalid. That is because the IEBC - according to Kasait - feared forgery. The Maina Kiai judgment states that alteration of results is a major problem which history of the Court detailed. Before the court is the evidence of that very mischief.
4. There is no substitute to the signature of the Returning Officer. No regulation or law exempts the signature. Calculate that and tell me how many of the Uhuru 1.5 million votes remain?

[Omollo]

Robina

Please massage Pundit a bit silently.

I agree Jubilee wins yes. No evidence.

An overturn would be good and bad for both camps
1. NASA would suffer a second loss for PORK
2. The avalanche of downstream petitions would result in some NASA wins in swing areas they lost to infighting - like Lamu

[RV Pundit]

Omollo, As always we will find out on Friday who got it right.The SCOk IT & Form analysis are of limited use..both parties just got few minutes to make comments on them.NASA should have sought for this long before...like immediately after declaration but they were busy with we are not going to court rhetorics..and even if admitted it has little evidential value..coz iebc did not flout iebc regulations.Just read us where it say forms need watermark or signature of PO or RO.If form lacks watermark then algurgair printers malfunctioned  but other features including bar codes we're there

[Omollo]

1) On procedure - They'd had to declare Sec 38 of election act null and void - and open a pandora box.

What is it here that would open a pandora's box? You keep repeating it and now I am just plain tired of it. This section deals with the formalities of calling elections and the number of voters per polling station:

Secondly the evidence from observers is overwhelming.Election was free, fair and credible. It was not bungled. It was not chaotic enough to be declared null and void.

The Observers spoke of the 1. Campaigns 2. Voting 3. Security during 1 and 2. They did not speak about RESULTS! NASA has not disagreed with most of their findings on 1-2 (even though they left out the massive abuse of state resources and violations of the law). The petition is NOT about 1 - 2 (even if some issues such as public officers campaigning) have been raised.

2) Main Kiai rulling is very clear. Chebukati verification is perhaps to confirm that he is getting form 34B from the authorized RO.[/quote] Did he do that? How come there are hundreds of 34Bs with errors?

He cannot verify the figures.

He is supposed to verify the figures agree / conform with received Form 34As and deal with figures exceeding the number of registered voters. Such forms shall not be added to the tally being null and void.

He has no business looking at Form 34 As.

Wrong again
 

If there is any problem with figures - it goes straight petition - and each PO or RO is individually held responsible.

No. Invalid form 34as lead to invalid form 34B. The affected 34Bs cannot form part of the result. If the numbers involved affect the 50 plus 1 or 24 out 47 he cannot issue form 34C and must await the clarification/ resolution of that.
 

The RO verification of form 34As is also restricted to those that exceed registered votes.

I notice you use the word ALSO. I wonder who else is "restricted to those that exceed registered votes" when Chebukati in your own words has no such role.

[RV Pundit]

Omollo,

I am not sure which act that is but you need to read 5 or 6 things.
1) Constitution - no controversy there.
2) Election Act - esp this section - Non-Compliance

No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election

SCOK used this in 2013 to knock out Odinga petition. The same fate is waiting this new petition.

More reading for you here.
http://nairobilaw.or.ke/wp-content/uploads/2017/06/ELECTION-TECHNOLOGY-LAW-DID-THE-IRREGULARITY-AFFECT-THE-RESULT-PDF.pdf

3) Maina Kia rulling in high court.
http://kenyalaw.org/caselaw/cases/view/133874/
4) Maina Kia rulling in Court of Appeal
 (http://kenyalaw.org/caselaw/cases/view/137601/)

5) Amended IEBC regulation as per Maina Kia rulling - this will tell you everything about what Chebukati need or needn't not do - and how the forms should look like - and which ones should be signed or not. IEBC developed these regulation -so they know them in and out .

6) If you have time you can read IEBC Technology regulation.

Once you're done you can make intelligent arguments here. As of now you're shouting like Patel.

Bla bla

[Omollo]

Omollo, As always we will find out on Friday who got it right.The SCOk IT & Form analysis are of limited use..both parties just got few minutes to make comments on them.NASA should have sought for this long before...like immediately after declaration but they were busy with we are not going to court rhetorics..and even if admitted it has little evidential value..coz iebc did not flout iebc regulations.Just read us where it say forms need watermark or signature of PO or RO.If form lacks watermark then algurgair printers malfunctioned  but other features including bar codes we're there

[RV Pundit]

Nope. NASA dithered and wasted crucial time aware judges have very limited -14 days to listen to this. Interlocutory matters should have been done on day one. On the same day when Raila & agents move out of Bomas - they should have driven straight to SCOK - and made interlocutory & conservatory orders on servers/form 34s/anything. They would have been able to use this reports - as you saw Orengo made several attempts since last Sunday to sneak in this Server & Form 34s "evidence" but in vain. It's been time-barred. It's INADMISSIBLE.

Of course we know what NASA did. They went for PLAN A - demos & mass action - that failed. They tried to talk to International Community - and they were told to go SCOK.

Btw 9-10th august - 26th August (deadline for submitting evidence) - NASA wasted so MANY CRUCIAL DAYS.

If NASA had rushed to court on the 10th - they would have got this sever & form analysis - and it would have form evidence. Now it's just background information that judges cannot admit.

When judges makes their rulling - minus all this hulabaloo about servers & forms - NASA will claims Korti Bandia - yet it's was their own dithering that stopped them from approaching SCOK and getting orders.

[Omollo]

This is my last effort then I give up.

1. Ahmednasir owns Nairobi Law. You have previously been very candid (in dismissing it as a "rag"). Today you want me to read his procured piece which he probably wrote and wants to use to influence the outcome of the petition.
2. The issue of section 83 was heavily litigated yesterday and the day before. I hope you paid attention to the LSK sober submissions by Steve Mwenesi who made it clear that it was enacted for Parliamentary elections and NOT Presidential elections which are conducted by way of the constitution. I am sure you closed your ears to that and listened to Uhuru's cousin - Githu Biased Muigai -Muthamacus Curie

You are here but quoting an advocate's partisan rhetoric. When a lawyer quotes section 83, he does so even when he knows forgery of Forms 34 took place and has been admitted to. Where does the constitution or any law sanction, approve, excuse, sanctify or otherwise provide imprimatur to fraud?

Omollo,

I am not sure which act that is but you need to read 5 or 6 things.
1) Constitution - no controversy there.
2) Election Act - esp this section - Non-Compliance
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election

SCOK used this in 2013 to knock out Odinga petition. The same fate is waiting this new petition.

More reading for you here.
http://nairobilaw.or.ke/wp-content/uploads/2017/06/ELECTION-TECHNOLOGY-LAW-DID-THE-IRREGULARITY-AFFECT-THE-RESULT-PDF.pdf

3) Maina Kia rulling in high court.
4) Maina Kia rulling in Court of Appeal
5) Ammended IEBC regulation as per Maina Kia rulling - this will tell you everything about what Chebukati need or needn't not do - and how the forms should look like - and which ones should be signed or not. IEBC developed this regulation -so they know them in and out .
6) If you have time you can read IEBC Technology regulation.

Once you're done you can make intelligent arguments here. As of now you're shouting like Patel.

[RV Pundit]

My last effort too.
Matters: Law(s)
1) Section 83 (28 in some) is the elephant in the house. It's not enough to flag non-compliance but you must demonstrate the adverse effect on the election.
2) Maina Kia rulling civil case 105 of 2017 is the other elephant. The finality of 34s at Polling Station & Const Level leaves Chebukati with simple job of tallying of Form 34Bs.
3) IEBC regulations - that define how FORM 34s should look, who should sign, who should transmit etc. Form 34 As & Form 34 Bs don't need signatures.
4) Maybe IEBC Technology Regulations - given petitioner is making a meal out of transmission.
Maters:Facts
1) Odinga evidence
2) IEBC response to the evidence
3) Uhuru response to the evidence

This is my last effort then I give up.

1. Ahmednasir owns Nairobi Law. You have previously been very candid (in dismissing it as a "rag"). Today you want me to read his procured piece which he probably wrote and wants to use to influence the outcome of the petition.
2. The issue of section 83 was heavily litigated yesterday and the day before. I hope you paid attention to the LSK sober submissions by Steve Mwenesi who made it clear that it was enacted for Parliamentary elections and NOT Presidential elections which are conducted by way of the constitution. I am sure you closed your ears to that and listened to Uhuru's cousin - Githu Biased Muigai -Muthamacus Curie

You are here but quoting an advocate's partisan rhetoric. When a lawyer quotes section 83, he does so even when he knows forgery of Forms 34 took place and has been admitted to. Where does the constitution or any law sanction, approve, excuse, sanctify or otherwise provide imprimatur to fraud?

[Mr Mansfield.]

Your punditness is now questionable,the uhuru win was bound to be nullified,

Without Prejudice.

[RV Pundit]

I am not God.I do get it wrong sometime. I totally share Njoki & Ojwang arguments but 4 judges have ruled & it's final. The issues is how many times do you get right or wrong.

Your punditness is now questionable,the uhuru win was bound to be nullified,

Without Prejudice.

[bryan275]

I agree Jubilee wins yes. No evidence.

An overturn would be good and bad for both camps
1. NASA would suffer a second loss for PORK
2. The avalanche of downstream petitions would result in some NASA wins in swing areas they lost to infighting - like Lamu

Wow... what say you now?