Why Jubilee Lawyers believe they will crush NASA Petition in the Supreme Court

How strong is NASA Petition? NASA lawyers believe they have filed the strongest petition supported by over 25,000 pages of evidence. Alongside the evidence are affidavits filed by experts, IEBC Returning Officers, Presiding Officers and few other witnesses who will demonstrate how the elections were flawed. However, when you flip the coin, you get Jubilee lawyers who believe that NASA Petition is the weakest presidential petition ever filed in any law court on earth. Analysts aligned to Jubilee have also claimed the NASA Petition is weaker than CORD Petition that was heard and dismissed in 2013. “From my readings of the petition filed by Hon Raila, I can sincerely say that his 2013 petition is 1000 times better conceptualized, stronger”, tweeted Ahmednasir Abdullahi‏ on August 19th 2017.

“I have gone through that petition, paragraph by paragraph, sentence by sentence and word for word from last evening, and as a lawyer, I am shocked. This is the weakest petition I have come across filed in any court across the world, trying to contest the election of a president,” said Tharaka Nithi Senator-elect Prof Kithure Kindiki.

Jubilee Lawyers in NASA Petition believe the petition is weak on three fronts:

  1. That NASA has not shown in their petition how the elections were flawed.
  2. NASA’s complaint of 54% algorithm has no bearing since only the forms 34A  and 34B are legally recognised by law to contain official results.
  3. That NASA dropped the hacking allegations it had made during results transmission.

NASA has not shown in their petition how the elections were flawed

Although NASA talks of the existence of ungazetted polling stations whose results were used to declare Uhuru Kenyatta the president elect, existence of forms 34A and 34B that were not signed by either IEBC officials or party agents, and discrepancies between forms 34A and related form 34B in several constituencies, Jubilee lawyers still point out that NASA has not demonstrated that the elections in themselves were flawed.

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What we could read from this insistence is that Jubilee Lawyers expected for NASA to point out places where there were electoral malpractice such as ballot stuffing, double voting, voter bribery, dead voters voting, excessive turnout numbers, and similar electoral malpractices.

Together with this belief is the belief that NASA has not made any legal grievances in the petition. This is despite the fact that NASA petition has clauses such as clause 5 that states that IEBC (1st Respondent in the Petition) “failed to comply with the governing principles established under Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the Constitution of Kenya; the Elections Act (as specifically set out herein below) and the Regulations made there under including the Electoral Code of Conduct and other relevant provisions of the Law.” The Petition goes ahead to give scenarios under which those Articles of the Constitution and sections of Elections Act were breached.

Whether the flaws NASA has mentioned in their petition will qualify as elections flaws will be up to the Supreme Court to decide.

Issues Jubilee Lawyers have with the 54% Algorithm Allegations

In public utterances, we are told there was an algorithm in the IEBC servers that ensured the difference between Uhuru Kenyatta’s votes and Raila Odinga’s votes were always at a constant difference of 11%, effectively giving Uhuru a 54% win against Raila’s 44% win. This algorithm, NASA claims, also ensured wins for Jubilee governors especially Mike Sonko in Nairobi, Alfred Mutua in Machakos, Kiraitu Murungi in Meru, and Joyce Laboso in Bomet.

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This part of the petition has been seen as weak by Jubilee Lawyers with the argument that only the results contained in forms 34A and forms 34B are legally recognised. This is a fact, but NASA has argued in the petition and accompanying affidavits that the use of technology in the Kenyan electoral process is to ensure transparency. Electoral Transparency on the other hand is enshrined in the constitution. Given the transparency argument, results relayed via technological deployment ought to reflect true results as recorded in the legally binding forms 34A and 34B.

NASA dropped the hacking allegations it had made during results transmission

As reported by The Standard in the article Jubilee: Why we will beat NASA again, Ahmednasir Abdullahi claims that the decision by NASA to drop the rigging allegation weakened the NASA case, but details on how that is so were not provided.

If you may remember, NASA had provided some log files claiming that IEBC servers had been hacked. Those log files have however been debunked as unauthentic, with IEBC saying the logs are for a Microsoft SQL database whereas IEBC database is an Oracle database. Writing in the CIPIT Blog ~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT), Moses Karanja provided several problems with the logs NASA had made public, most of which being inconsistencies between the log files and the claims NASA had made.

It is therefore obvious that the hacking claims initially made by NASA were not supported by any irrefutable evidence. If NASA could have gone ahead to allege in the petition that IEBC servers had been hacked, then those allegations in the petition could have been the ones to weaken NASA’s case.

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Conclusion

The foregoing clearly show that the allegations that NASA has filed a weaker case haven’t been clearly demonstrated by the Jubilee Lawyers who are making such allegations. The strength or weakness of NASA case will be clearly demonstrated during the actual proceedings that are set to begin next week.

Odipo Riaga
Managing Editor at KachTech Media
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