IEBC gave poor reasons for tech failure, forms 34A misuse - Mwilu

The Supreme Court cannot accept IEBC's argument that technology failed in some areas, Deputy CJ Philomena Mwilu has said.

Mwilu said the commission's ICT officials must have known some areas had weak networks and should have provided alternatives.

On August 6, the electoral agency said 11,155 out of 40,883 polling stations lacked network coverage and that returning officers there would move to areas with internet hot-spots to relay results.

The commission said the areas were out of the 3G or 4G GSM network coverage. Kisii had the highest number of such stations (922) and was followed by Muranga (912) and Homa Bay (892).

More on this: Over 11,000 polling stations lack network coverage, returning officers to 'move' to relay results

Mwilu said: "It must have not dawned to them in two days that they could not get network and this was in violation of the law. Failure to access 3G or 4G is not a failure of technology.

"They said they were going to be unable to transmit from 11,000 polling stations but they should have done that earlier so we cannot accept the IEBC's explanation."

The judge said the electoral agency failed to electronically transmit results and that the poll was neither transparent nor verifiable.

Mwilu, who read details of their historic ruling alongside colleagues, said the commission declared results without receiving forms 34A.

"Why was IEBC unable to supply forms 34A, that were said to be 11,000 in number, four days after the election results? Why would it have been impossible to avail the copies to the petitioners?"

The judge further said responses by the electoral agency's lawyers showed "disturbing if not startling revelations"

"The first respondent used forms 34B as opposed to forms 34A in declaring the presidential results...according to the IEBC, they modified forms 34C to 34B and used these as source documents to determine winner instead of using form 34A," she said.

"Neither the first nor second respondent provided a sufficient response as to whether all forms 34As had been transmitted to the tallying centre....the forms had dubious authenticity..."

She added the IEBC did not respond adequately on how the manual Form 34Bs arrived faster than electronic versions.

On August 10, Jubilee and NASA presidential teams scrutinised forms 34A and 34B at Bomas to ascertain the integrity of the election process.

The two sides of the political divide took their rivalry to this exercise, making conflicting claims on the findings.

During the process, Jubilee Party Secretary Raphael Tuju asked if anybody could manipulate 40,883 F34As to tally with the displayed results He said no anomalies had been detected that far in the verification of form 34As and told opposition to concede.

More on this: NASA, Jubilee inspect forms 34A, 34B after IEBC resorts to manual check

'ELECTION A PROCESS NOT EVENT'

Mwilu further said the election is a process, not an event, whose conclusion is showed without a showcase of the steps.

"IEBC ignores that elections are not only about numbers. Even in numbers, we were taught that when you arrive at a mathematical solution, there is always computation and one has to prove the process used."

The Deputy Chief Justice said IEBC flouted the law and the constitution to the extent that they became the law themselves.

"While integrity is important in the whole electoral process, it's more important in counting and tallying of votes," she said.

"It is important to note the terms simples, secure, verifiable system are engraved in our constitution."

In her address earlier on Wednesday, Mwilu said the electoral agency's system was infiltrated and data contaminated.

Read: IEBC's system was infiltrated, restricted access suspicious - Mwilu

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