BY NAMULONGO PETER,NAIROBI,27TH AUG 2017-The hearing of the presidential petition filed by NASA leader Raila Odinga is set to begin today ( Sunday), August 27 at 3pm.
This will however be preceded by a ruling on an application by NASA lead counsel James Orengo to access IEBC servers.
NASA lawyers want the court to grant permission to access the logs to verify whether the presidential results announced by IEBC correspond with the results recorded on forms 34A, 34B and 34C.
“Since we are starting at 3(pm), we will come and deliver the rulings at 2(pm),” Chief Justice David Maraga said.
In making his application, Orengo argued that the logs will provide enough proof on their allegations that the elections were rigged in favour of president Uhuru Kenyatta.
The Siaya senator pointed out that the forms presented by IEBC as evidence may be altered and do not tally with the originals.
He said some forms had security bar codes that did not correspond with those allocated to ballot papers used during the elections.
“There are some which if you use a bar code reading device, instead of showing a constituency in Kenya, it shows some place in France,” Orengo said.
Orengo also said some forms 34B did not have the final results as recorded by returning officers at the constituency.
He also said the names of candidates on some forms had been used interchangeably.
“There are some forms where the name of Raila Odinga is Raila Amollo Odinga, on some (it’s) Odinga Raila. Uhuru Kenyatta sometimes the name is Kenyatta Uhuru.
He added: “It is an entire vice my lords,” Orengo said in support for his application to access the servers.
Lawyers representing President Uhuru Kenyatta however objected to NASA’s request saying the burden of proof that elections were rigged did not lie with the electoral commission.
Lawyer Ahmednasir Abdullahi told the court NASA’s demand was akin to a petitioner asking the accused to produce evidence against himself.
Lawyer Paul Muite, acting on behalf of the IEBC, said the process of analysing IEBC logs would take at a lot of time.
“A forensic audit of the KIEMS and my client’s servers will take three weeks as they fish for the information,” Muite said.
In his oral submission, lawyer Fred Ngatia acting for the president said NASA’s demand was uncalled for since they already had been supplied with forms 34A and 34B.
“Within those electoral areas that there is a contest by the petitioner, this honourable court could order a tallying process of forms 34A and 34B.
“By tallying I mean a tallying number for number not another contest,” Ngatia said.
“We are making that very limited concession on the basis of trying to assist this honourable court to come to a speedy conclusion,” he added.
Orengo countered the argument saying the election transmission process in the elections was supposed to be electronic and not manual as was being insinuated by Ngatia and Abdullahi.
“To establish what happened on polling day especially in relation to transmission of results is to have the best evidence, and that evidence is not contained in the forms 34As and 34Bs,” Orengo said.
“And my lord this is what they are trying to run away from. They are trying to run away from it because the whole truth is contained in those logs and those transactions,” Orengo said.
He added that the exercise would be easier compared to bringing the forms to court.
CJ Maraga dismissed lawyer Isa Mansur’s and Muite’s fears that NASA would compromise the integrity of the servers if they were allowed to access them.
“I’m not an ICT expert but I thought there are securities ingrained in those kinds of systems. You can’t interfere with the records. It will even show who has gone in and at what time,” Maraga said.
Maraga said the court would also rule on Sunday on the applications of those seeking to be enjoined in the case as friends of the court and interested parties.