Sunday, May 19, 2013

The Raila Supreme Court evidence

What Raila failed to tell in petition against Uhuru

By Paul Wafula
NAIROBI, KENYA: Details of the 800-page document containing former Prime Minister Raila Odinga’s evidence on his presidential election petition that he never got a chance to present to the Supreme Court can now be revealed.
It is now emerging Raila had sourced a management consultant from a firm based in Barcelona, Spain, to support his local team of professionals, among them lawyers, engineers, financial analysts and technology experts to argue his election case.
The former PM had compiled a case largely grounded on the failure of technology, variation in number of votes as declared at the constituency and national tallying centre.
Recently Mr Odinga accused Dr Willy Mutunga of presiding over an “injustice” after the Chief Justice complained about bribery allegations levelled against him on grounds that the Supreme Court had struck out the 800 pages of evidence with a stroke of the pen.
In the ruling rejecting the evidence read by Justice Philip Tunoi, the court stated that accepting the affidavits and by extension the new evidence would prejudice the respondents, Isaack Hassan, the IEBC,Uhuru Kenyatta and William Ruto.
The court further stated that the applications should have been made prior to the status conference hearing in order to be give due consideration.
In the rejected evidence, the team of experts had planned to argue that about 267,798 more votes were cast for the presidential election than for the gubernatorial election.
The co-hosting of the IEBC server and the TNA server also formed one of its greatest arguments in the piece of evidence.
According to the rejected submission, IEBC allowed Kencall EPZ to co-host both its database and that of the TNA on the same server with an IP address, which Odinga through his lawyers argued compromised the integrity of the electoral process.
“It is now an admitted fact from replying affidavits under reply that the first respondent’s database titled African Focus and accessed through the web address or URLhttps://www.intranet.kencall/apps/iebc and The National Alliance (TNA) database known as Market Race CRM and accessed through the web address or URL https://www.intranet.kencall/apps/tna on the same server with the same IP address and which raises issues of lack of independence and transparency,” the document alleges.
Firm defended
Kencall’s boss Nicholas Alexander Nesbit had in his affidavit sworn on March 19 defended his firm saying his firm had set up two independent servers to host the IEBC and TNA’s databases.
Mr John Walubengo, a certified Information Systems Auditor (CISA) was one of the main IT experts that the Raila Odinga legal team had lined up to testify.  His evidence was marked RO 5.
Mr Walubengo’s brief was to advise on what the petitioner termed as ‘conflicting and confusing reasons given by the IEBC in respect of the Electronic Voter Identification (EVID), Biometric Voter Registration (BVR), Results Transmission System (RTS) and the Results Presentation System (RPS).’
“I have been requested to advise on the propriety of the hosting arrangements of the First Respondent’s database(s) and The National Alliance (TNA) database by the first respondent’s service provider Kencall EPZ Limited,” Mr Walubengo said in his sworn affidavit, on page 811 of the rejected evidence package.
Forensic system
Mr Walubengo had pushed for a forensic system audit arguing that the said challenges in the technology can only be ascertained through an audit.
“The reasons advanced on the propriety and mechanisms of the co-hosting arrangements…are equally not empirical,” Mr Walubengo notes.
He argues that the scenario presented a real possibility of the system and database admin (DBA) at Kencall EPZ Limited having unhindered (ROOT) access to both the IEBC and TNA databases.
Barcelona based management consultant Raj Pal Senna, whose evidence is marked RO 6, is the second IT expert whose submissions never saw the light of day after they were rejected.
His brief was almost similar to what Mr Walubengo did. Just like his colleague, Mr Senna concluded that to be able to know what exactly broke down the system and make an informed view, it was important that a forensic analysis of the hardware and the software is carried out.
“It is an industry standard practice to provide the most basic information about a server which is the server IP address, which is a unique identification number, which is a digital name of sorts. No two servers can have the same IP address,” Mr Senna says in a sworn affidavit dated March 22.
But the plea to have a forensic audit was rejected on grounds that it was not practical, handing Mr Odinga’s legal team a major blow.
Affidavit expunged
The six judges also expunged Raila’s 839-page replying affidavit, the second piece of evidence, on grounds it was filed too late to allow the respondents to go through it and file replies.
“If we allow the affidavit, it will be prejudicial to the respondents and can lead to miscarriage of justice... we hereby expunge from the affidavit sworn on March 22, together with six other annexed affidavits,” said the judges in a ruling read by Justice Philip Tunoi. 
In the case Raila had argued that the votes garnered by Uhuru Kenyatta were less than 50 per cent of the votes cast as required by law.
Apart from the individual discrepancies at different polling stations, the 85,000 extra voters in the final tally, Odinga’s petition is heavy on technological failure — procurement, installation and deployment — a pointer that the bulk of its case was based on technology.

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