Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022

 

On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); a technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.

 

On August 15, 2022, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4^th respondent) declared the 1^st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1^st respondent) the president elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1^st petitioner, Raila Amollo Odinga as the runner’s up with 6,942,930 votes (48.85% of presidential votes cast).

 

Aggrieved by the results and the process by which the results were obtained and declared, the 1^st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1^st petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.

 

The 1^st, 3^rd and 4^th petitioners in the consolidated petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. As regards the audit of the Register of Voters, they urged that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they alleged, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.

 

In response, IEBC submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information and the information was available and could be authenticated through the use of various security features.

 

The 1^st petitioners further alleged that the results of the presidential election were staged.  They contended that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBC’s public portal.

 

To rebut the allegation, IEBC and its chairperson denied staging and unauthorized intrusion of the RTS. In that regard, they urged that every image of Forms 34A was uploaded immediately after the transmitted result form was received as evinced by the time stamp. The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution. They contended that the postponement undermined the conduct of free, fair and credible elections by depriving the voters an opportunity to vote for all the candidates on the date stipulated by the Constitution. The 1^st and 3^rd petitioners also believed that elections were deliberately postponed in Kakamega and Mombasa counties. It was alleged that those areas were considered to be 1^st petitioner’s strongholds, and as such, the postponement of elections worked to his disadvantage and handed a benefit to the 1^st respondent.