Nairobi — The Africa Centre for Open Governance (AFRICOG) on Tuesday met tough opposition in the Supreme Court following its request asking the Independent Electoral and Boundaries Commissioner (IEBC) to produce the marked voter registers used during the March 4 General Election.
AFRICOG's counsel Kethi Kilonzo claimed that IEBC supplied manual forms 34 and 36 but submitted the electronic voters' register to court.
"The question is, the electronic register that they have provided you with... is that the register that was used during the election and can that register verify the number of registered voters indicated in the manual forms they have provided you with? The answer is no. If this electronic register of voters was not used and they used the manual register, why hasn't the IEBC provided that register? Is there something they are trying to hide," she queried.
Kilonzo further asked the commission to come clean on the method that was used during the voting. She also claimed that there were discrepancies of over 70,000 voters in the electronic register and those registered in the marked registers. She said it was only the principal register that could verify the actual number of registered voters.
According to her, the marked registers should not be in the hands of IEBC, which is a petitioner in the case, but should be in the custody of the court. "I dare say that the marked registers shouldn't be in the custody of IEBC, a respondent. The registers are of immense value to the case. We need the documents from the IEBC as the burden of proof is on us."
She felt that the marked registers used during the election cannot be reused hence IEBC should print new ones in case of a re-run. Her application was supported by lawyers representing the main petitioner - Prime Minister Raila Odinga - amid intense arguments by lawyers representing President-elect Uhuru Kenyatta and IEBC.
Odinga's lawyer George Oraro said it will be unfair if the registers are not delivered. "It will really be unfortunate that in the case of the presidential election the registers will not be produced unless there is a prior notice to produce them and it will depend on the convenience of IEBC. If it is not produced, on evidentiary level which registers will we use?"
IEBC's lawyer Paul Nyamodi explained to the court that the request to supply the registers came belatedly and within the time limits, it will be impossible to heed AFRICOG's 'late' request.
"It will require an order of this court to break the seals of the ballot boxes where those registers are, remove the tamper proof envelopes, open them and then have them delivered to court. That will take a week to 10 days to do that in respect of the 33,400 polling stations. Printed copies of the register run too nearly to 750,000 pages, it will be an immense expense to have them photocopied. The commission would however avail them at the petitioner's expense," he told the court.
Lawyer Kamau Karori for Issack Hassan said AFRICOG's request to produce the voters' register was presented late saying they were being unreasonable. He said IEBC was not refusing to produce any documents saying the problem was the time when the request was made and the time they have to get the documents.
He also said the re-tallying fro 22 polling stations was being done at the Kenyatta International Conference Centre hence it was not viable to start producing more documents on the last day of the pre-trial hearing.
Kenyatta's Lawyer Fred Ngatia also said AFRICOG ambushed IEBC with its request hence explaining why it delayed in making that request. He also said AFRICOG had not made a formal request yet they had time to do so but waited until late Monday. "The petitioner had all the time to make the request. Why did they delay to make the request? Results were declared on 9th March. Request was made on 25 of March."
Deputy President-elect William Ruto's Lawyer Katwa Kigen also asked the judges to dismiss the request by Kilonzo saying it was impractical for IEBC to supply such documents within the time available.
Chief Justice Willy Mutunga said the bench would communicate its decision on the matter on Wednesday at 9am.
Judie is a Special Projects Reporter. She has eight years experience in Journalism in Kenya and Germany. She has scooped awards in Reproductive Health, Population and Development and Gender and Development. She has participated in international conferences in Germany. She has a soft spot for human rights and justice stories.