Arguments that MIGHT convince the Supreme Court judges to nullify William Ruto’s win

I am not a lawyer, so this article is purely based on my layman’s understanding of the law. We all know that by Monday 22nd August 2022, Raila Odinga and his Azimio brigade ought to have filed a petition at the Supreme Court challenging the declaration of William Ruto as President-Elect. Going by the press statement read by Raila Odinga on Tuesday afternoon, the top prayer in their petition will be to ask the Supreme Court to make a determination that the process that led to Wafula Chebukati’s declaration of President-Elect, hence the declaration itself, is null and void.

Legal experts who have appeared on television to comment on Raila’s press statement, though divided on this very issue, tend to agree that the Supreme Court may not make such a determination. That’s because the constitution of Kenya specifies that the Chairman of the IEBC is the Returning Officer for the Presidential Election, and not the commission itself. With holes in their top prayer, it appears that Azimio doesn’t stand a chance of winning the court battle that’s scheduled to start next week. However, there are these three arguments that might convince the Supreme Court to rule in Raila Odinga’s favour.

1. The Case of form 34As

Form 34As are the statutory forms that contain the official and final figures for the presidential election at each of the 42,229 polling stations. As we all have come to understand, the figures announced by the Presiding Officer at the polling station and consequently tallied in form 34A are final. The figures as tallied cannot be amended, rectified, or changed in any way whatsoever. If there are any discrepancies, the IEBC chair explained, then they will note the discrepancies in an error form and submit the error form to the Supreme Court in the event of a petition.

After announcing and consequently tallying the presidential results in form 34A, The presiding officer is required to scan or take a photo of the form, upload the digital version of form 34A to the IEBC portal, and then surrender the form to the Constituency Returning Officer. The constituency returning officer, upon receiving the forms from all the polling stations in the constituency, is required to enter the data in form 34B, upload form 34B to the IEBC portal, and then take both form 34As and form 34B to the national tallying centre.

At the National Tallying centre, the Presidential Returning Officer who doubles up as the Chairman of IEBC is required to verify that the forms are the original forms issued by the IEBC, and then tally all the figures as found in the original form 34As (or in form 34Bs after verifying that they are the very figures in form 34As) into form 34C, then use the total figures in form 34C to declare whoever obtains at least 50% plus 1 vote as President-Elect, or declare that there is no such winner.

Now, this is where the case of form 34As becomes interesting. In this election, the presiding officers took photos of form 34As at their respective polling stations and uploaded the same at the IEBC portal. The public including you and me could easily (and still can) access these forms and do our own tallies. The media houses tried but all of them stopped at some point. One reason the media houses stopped is the claim that some outsiders had injected an algorithm into their tallying system to interfere with the figures. Another allegation was that the IEBC portal had been hacked by someone who was uploading non-IEBC-issued form 34As. The implication of these allegations is that the forms in IEBC portals cannot be trusted fully.

To ensure that the figures that were to be used in declaring a president-elect, the IEBC chair and his clerks followed the law by verifying form 34As presented by the Constituency Returning Officers, tallied the results from those forms, and then announced on live television the results from those constituencies. This announcement went smoothly for 259 constituencies but was never done for 32 constituencies. Until now we still do not know the verified results from 32 constituencies. This leads us to the second argument that may invalidate the declaration of William Ruto as President-elect – Opaque Nature.

Before discussing Opaque Nature, let me wind up this section by reiterating that if Azimio can present evidence that a substantive number of form 34As in the IEBC portal are different or have different figures when compared to the original, physical, official form 34As, then the Supreme Court may listen to their prayer.

2. Opaque Nature

The phrase opaque nature in the context of the just concluded 2022 presidential election originated from four IEBC commissioners who distanced themselves from the results. The four commissioners complained that towards the tail end of the verification process of form 34As, the commissioners did not have access to the tallying numbers and that upon completion of the verification process, the IEBC chair surprised them with results that he had obtained from somewhere else. The IEBC chair would later explain that the results he was declaring were results obtained from form 34As as posted in the IEBC portal and that anyone willing to verify could verify the figures for themselves. It is worth pointing out that by the time Wafula Chebukati was making the announcement, there were 46,202 out of 46,229 forms at the IEBC portal, and that by the time of writing this article, the number of forms had decreased to 46,201 out of 46,229. It is also worth pointing out that not all the forms uploaded in the portal are illegible.

The question in my mind right now is, which version of form 34As should constitute the final tally for the presidential election? Should they be the original physical copy of form 34As? Or should they be the scanned/photographed versions of the same forms? This question is pertinent because there is a chance someone uploaded a non-official version of form 34As whose figures do not match those in the original version. This can be seen in the case of Kiambu county where total results from Kiambu county for Raila Odinga as announced by the IEBC commissioners come to 219,534 votes whereas Chebukati published that Raila Odinga had garnered 210,580 votes, a difference of 8,954 votes – implying that Chebukati potentially denied Raila Odinga 8,954 votes from Kiambu county. Other discrepancies have been noted too.

The discrepancies that exist between the IEBC verified figures as announced by the commissioners and the non-verified figures as announced by Chebukati implies that there is a case IEBC needs to answer in as far as transparency and verifiability of the final tallying process is concerned.

3. Substantive discrepancies between Women Representative, Senatorial, Gubernatorial, and Presidential votes cast in some counties

One of the measures IEBC has put in place to ensure easy verification of the votes cast is the requirement that each voter is given six ballot papers. The voter is then required, after choosing the candidates he wishes to vote for, to put every single ballot paper in their respective ballot boxes, whether or not he has voted for a candidate. That is, immediately after the first voter has cast his votes, the total number of votes cast for every elective seat will be 1. There will be 87 votes cast for every elective seat after the 87 voters have cast their votes, and there will be 312 votes cast after all the 312 voters who turned up to vote in that polling station have voted, assuming a 65% voter turnout in a polling station with 480 registered voters.

If that process happens smoothly in all the polling stations in a given county, then we should expect the number of votes cast (not valid votes) in the presidential, gubernatorial, senatorial, and women representative ballot boxes to be exactly the same in that county. If there are any differences (e.g. due to failure to issue a voter with all the six ballot papers or due to the unlikely event that the voter walks away with the unmarked ballot papers, or due to counting errors resulting from the fact that those managing the election at the polling stations have been exhausted by the time of counting) then the differences ought not to be substantive as to cast doubt in the integrity of the voting and tallying process.

The possibility that there were substantive discrepancies in the number of votes cast for the president as compared to the other elective seats at the county level has been alleged, though no reliable evidence has been produced so far. If such evidence will be produced during the Supreme Court hearing, then Azimio may give the Supreme Court judges a foundation upon which to question the legitimacy of William Ruto’s win.

Conclusion – The 50% + 1 mark

According to the published presidential results by county, William Samoei Ruto garnered a total of 7,176,141 votes against 14,213,137 total valid votes, implying that he passed the 50% mark by 69,572 votes. In this case, therefore, the arguments by Azimio simply need to show that any irregularities or illegalities in the electoral process affected at least 69,572 votes. One irregularity that I have already mentioned is the failure to upload all the 46,229 form 34As. This irregularity has the potential of affecting up to a maximum of 18,900 votes.

The second irregularity is the decision by Chebukati to declare results based on uploaded forms, yet the verification process resulted in figures that do not tally with the uploaded form 34As. If the total number of votes found through the verification process differs to the tune of 69,572 votes in favour of Ruto, then Azimio shall have presented an argument that may compel the judges to nullify the presidential election.

After all is said and done, Azimio doesn’t appear to have a water-tight case against the IEBC, Wafula Chebukati, and President-Elect William Ruto that may compel the judges to nullify the election. In the unlikely event that such a nullification is granted, Raila Odinga is likely to lose by garnering a paltry 45% against Ruto’s 55% in a rerun or runoff.