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MEDIA ADVISORY

Civil society petition on the presidential election in Kenya

EMBARGOED TILL AUGUST 22, 2022, 2 PM NAIROBI TIME

Kenyan civil society has filed a petition at the Supreme Court of Kenya seeking to nullify the declaration of William Ruto as winner of the country’s presidential election, arguing the declaration violated the Constitution, emerged from electoral fraud and had not been verified.

The petition, filed by four voters on behalf of Kenyan civil society, also highlights systematic breaches of electoral technology laws in the run-up to the August 9, 2022 election. The petitioners, Khelef Khalifa, George Osewe, Ruth Mumbi and Grace Kamau, argue that the ‘serial impunity’ of the Chair of the Independent Electoral and Boundaries Commission (IEBC), Wafula Chebukati, irreparably damaged the ability to deliver a credible election. Khalifa, a former member of the national human rights institution, is Chair of Muslim Human Rights (Muhuri) organisation while the other three are activists work with social justice centres across Kenya.

Relying on the Constitution and case law, the petition alleges Chebukati usurped the IEBC’s mandate and subverted the sovereign will of the people.

The four-tier process of transmitting election results from the polling stations to the constituency tallying centres, then to the National Tallying Centre and the declaration is a chain. ‘A break in one tier completely destroys the elections process,’ the petition explains. ‘The constituency returning officer cannot act without polling station returns; the Commission cannot act without the constituency returning officers; and so also the Chairperson cannot act without the tallying and verification by the Commission,’ explains Willis Otieno, the petitioners’ advocate.

The petition also challenges the authenticity of results declaration forms from the polling stations posted on the IEBC’s public portal. It argues the figures entered into the forms and scanned at the polling station, whose copies publicly displayed on site, do not correspond to those uploaded on the public portal, suggesting that the latter had been intercepted and altered during transmission. A substantial number of electronic result forms have many anomalies—missing barcodes and watermarks, bearing non-sequential serial numbers and with cropped images suggesting they were not scanned using authorised equipment.

The petition faults Chebukati for declaring the supposed presidential results without taking into account the error sheets developed by party agents on the floor of the National Tallying Centre, and without announcing that such results had not taken account of the errors noted. The errors flagged were both numerical—affecting the final figure—and qualitative, indicating some forms he relied on were not genuine.

The petitioners also analysed returns for other elections in eight counties, which they present as the smoking gun for fraud. The analysis shows the supposed presidential votes were higher—by 26 and 29 per cent—than those for senator and woman representative, respectively. In the 2017 elections, the Supreme Court noted similar large differences in tallies for the different positions while hearing the presidential election petition.

The petition asserts the voter register was poorly managed and there is a high probability individual with unauthorised access to the voter register database voted on behalf of hundreds of thousands of voters whose records could have been duplicated. Quoting the June 15, 2022 audit report of the register by reputed accounting firm KPMG, the petition notes the auditors discovered 481,711 doubly registered voters, of whom 460,546 had identical names and identity documents. This number was sufficient to require a computerised de-duplication of the entire voter register post-audit.

De-duplication would require a biometric verification exercise, something the petitioners claim the IEBC did not do. Biometric de-duplication is a critical anti-fraud activity to weed out duplicate accounts, according to the petitioners, that could be used by individuals with unauthorised access to the voter register database to ‘vote’ on behalf of those voters whose records are duplicated. The IEBC did not revise the register as required by law to delete duplicate records and take account of any changes in the voters’ particulars that might have occurred. Sixty days to the election, the IEBC was still finalising the audit of the register.

The two audit reports, for 2017 and 2022, imply the register of voters and the electoral technology used to manage it not only lack integrity, but also point to gross negligence and recklessness by the IEBC in the management of electoral infrastructure. The petition cites multiple illegalities in the purchase, testing and deployment of electoral technology, and fingers the IEBC for what it terms as “negligent failure to remedy glaring defects and weaknesses in critical databases since 2017.’ While the IEBC did not release the full 2022 audit report, the petitioners argue that, from available excerpts, it is clear the electoral system was inexplicably vulnerable to hacking and manipulation. They question the role that three Venezuelan nationals played in the election given that, after their arrest, Chebukati defended them as working for IEBC and secured their release.

“Hackers are the ones deciding the result of Kenyan elections,” says Willis Otieno, “and this transfers sovereignty from the people of Kenya to ‘little digital citizens who live inside IEBC’s machines. The people of Kenya had their say in the elections but technology had its way.”

“The overall impression one gets from the available summary of the 2022 audit report is the 1st Respondent’s extreme bad faith in the way it executed the audit,’ the petition adds. Auditors only received information needed to assess the integrity of the system on the eve of the reporting date and meetings with a vendor supplying critical technology – Smartmatic’s—were not arranged in time for the audit.

The petition concludes by observing Chebukati’s compliance with court orders has been dishonest and malicious. ‘Chebukati has led a Commission that is accountable to no one: not to the Judiciary, not to Parliament and, most importantly, not accountable to the people of Kenya.