Jubilee, CORD lawyers battle with paperwork

By Felix Olick

NAIROBI; KENYA: Lawyers preparing to do battle in a landmark presidential election petition today were on Friday buried under a mountain of paperwork that left many exhausted.

The nightmare of getting and sorting critical electoral documents used in the March 4 contests have dogged the two leading Coalitions preparing for a showdown at the Supreme Court on Saturday.

While they said they were ready by on Friday, most observers expected the scrutiny of primary documents to continue into last night as more evidence is sought for the legal battle.

Raila Odinga’s Coalition for Reform and Democracy (Cord) is seeking to conduct a full audit of the results as the basis of their case against the declaration ofUhuru Kenyatta as President. They requested various primary documents including Forms 34, 35 and 36, statutory documents used to declare results and tallies from elections in various centres.

However, the volume of documents involved is enormous, leading to more challenges even after the High Court ordered the Independent Electoral and Boundaries Commission and mobile service provider Safaricom to provide Cord with voting data they requested.

Strategic decision

On Friday, CORD postponed the filing of its election petition to today (Saturday,) saying this was a strategic decision to avoid a ‘mix up’ with other petitioners. Lands Minister James Orengo said the decision was reached after realising that other entities, including civil society organisations, were lined up to file a similar petition. No new petitions were filed on Friday, however, raising the question of whether CORD will turn up at the Supreme Court registry and find another petitioner from civil society on their heels.

“We want to assure the public that the petition is ready and all the documents are ready for filing,” Orengo told CORD supporters on Friday. “Our move is purely strategic and has nothing to do with the content of the petition.” He added the move would allow Kenyans understand the merits of petition and why Cord was disputing the results announced as by the electoral commission last week.

TNA and URP, which are the main parties in Uhuru’s Jubilee Alliance, plan to be enjoined in the suit on behalf of their presidential candidate. They too are seeking access to the same primary documents CORD is looking at. CORD had gone to court to compel the IEBC to provide them with key documents and electronic evidence from all 33,400 polling stations across the country. These include all Forms 34, 35 and 36 from all the polling centres and constituencies, the serial numbers of electronic devices used in voter identification and tallying, as well as provisional and final registers of all registered voters.

Forms 34 and 35 are Declarations of Results in respect of a polling centre for the presidential (34) and five other elections (35). The documents detail the total number of registered voters at the polling station, valid votes cast, number cast in favour of each candidate, rejected and disputed votes. The forms are signed by the presiding officer and may be countersigned by party agents present when the tally is announced. Form 36 is a declaration of the aggregate tally from a constituency and county. Other documents of use in a petition include polling station diaries.

By on Friday, Orengo who is one of Raila closes allies in the CORD legal team, revealed that they had only received Form 34 (33,400 documents) and 36 (290 documents). Orengo, who is also the Siaya Senator elect, said that IEBC had promised that Form 35 (another 33,400 documents) would be ready by on Friday. Electoral officials told the High Court on Thursday the documents had to be gathered from tallying centres across the country.

 “We have received Forms 34 and 36 only. We were promised we would get Form 35 today, but photocopying could take two to three days,” Orengo told journalist at Serena Hotel. CORD intends to pinpoint discrepancies between what was manually recorded in the polling stations and what was sent to the tallying centres or announced by IEBC commissioners in Nairobi.

They had also demanded from Safaricom all messages that were sent through handheld transmission devices that were used to electronically transfer data to point out that the figures were indeed inaccurate.  Their strategy is to trace the entire process from registration of voters, actual numbers of those who voted and how the results were handled from one point to another before being released to the public.

Rejected ballots

Interestingly, however, three people closely linked to the Jubilee Coalition have also filed a petition with the Supreme Court asking it to rule on whether the IEBC should have included rejected ballots in its final tally of presidential results. This move is aimed at widening the gap between Uhuru and Raila in the final tally, thus making it difficult for the Supreme Court to order a run off between the two candidates.

Speaking to journalists on Friday, Orengo reiterated that they have a watertight case that the March 4 elections were not credible. The former Ugenya MP said that Cord’s legal team had some of the best brains in the country, saying that their lead Counsel, George Oraro is one of the lawyers who have dealt with the highest number of election petitions in the country.  “It would be completely unethical for Senior Counsel like me, Mutula Kilonzo and former Attorney General Amos Wako to go to court if we have no evidence. Look at the legal team and you will know the seriousness of what we are talking about,” Orengo said.

He noted that they have consulted with the Judiciary and are aware that the seven-day period provided to file the petition has not elapsed. He also said that although tomorrow is not a working day, they are making arrangements with the Registry of the Supreme Court when to file the petition and pay the requisite fees. The Coalition has hired senior counsel George Oraro and Pheroze Nowrojee to represent them in the petition.

Should CORD’s petition fail, Uhuru will be sworn-in on April 16, the second of four possible dates picked by the Transition Authority for the inauguration. If it succeeds in overturning IEBC’s declaration, Kenyans will return to the ballot box on April 11. The winner of that race will be sworn in on April 30 if his victory is not challenged at the Supreme Court. If it is, the court’s decision will determine a winner to be sworn in on June 18.