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The Kenya Presidential Election Petition 2013 was an election petition that was aiming at declaring the Kenya presidential election 2013 null and void. The Petition was filed at the Supreme Court of Kenya on the 16th of March 2013.

The main petitioner Raila Odinga in a press conference shortly after the results were announced on 9 March in a Speech he titled 'democracy on trial' noted that the election had been marred by massive and significant alleged failures of the BVR kits,[1] the EVID (electronic voter identifiication or "Pollbooks"),[2] the RTS (the results transmission sytem or "tallying system")[3] and the RPS (results presentation sytem).[4] He claimed that the manual tallying was suspect leaving him no choice but to contest the result in Kenya's highest court, The Supreme Court. In his Petition, Raila Odinga sought to subject the technical evidence of the IEBC to scutiny. Raila claims that the Kenyan Constitution imposes upon the Supreme Court, a fiduciary duty to investigate any matter brought to its attention. He says the Kriegler Report[5][6] on the Election Violence following 2007/8 general elections, inspired the Kenya Constitution and that the Kriegler Report places a special requirement of fiducairy duty on the Supreme Court in relation to any matter alleging election fraud.

Raila Odinga and his lawyers George Oraro, Mutunga Kilonzo and James Orengo, in confidence, instructed Raj Pal Senna from Barcelona, a Management Consultant to carry out a forensic investigation of the technical evidence of the IEBC in relation to the technology deployed during the Kenyan Elections and in particular a forensic investigation of claims made by the IEBC on TV and other media that the "EVID failed", the "server overloaded", the "server crashed", the "database crashed". The affidavits of the IEBC and of Uhuru Kenyetta during the petition were similarly subjected to forensic scrutiny. The findings of Raj Pal Senna were documented in a witness statement for Raila Odinga and became to be known as "Witness Statement R06"[7][8]

Background[edit]

After the 2007 general election and the chaos that followed, the report by the Kriegler Commission urged Kenya came up with a new constitution that was promulgated on 27 August 2010 that detailed on how any future dispute concerning election will be solved. The major avenue of this was to set up Supreme court that will hear all issue regarding presidential election and make a ruling. Its decision is final.

Judges[edit]

The following are the current members of the Supreme Court [9]

Petitioner[edit]

The cases filed in supreme court were three;[10]

  • The first was filed by Dennis Itumbi, Moses Kuria & Florence Sergon. They wanted the court ruling on how the rejected vote should be dealt with. They were represented in court by Lawyer Njoroge Regeru
  • The Second was filed by Africa Centre for Open Governance (Africog). They were represented by lawyer Kethi Kilonzo. The petitioner in this case was Gladwell Otieno and Zahid Rajan
  • The Third was filed by Raila Odinga. He was represented by lawyer George Oraro

All above cases were consolidated and heard at the same time.

The respondents were;

  • Uhuru Kenyatta as the beneficiary of flawed presidential election as president elect, represented by Fred Ngatia.
  • William Ruto as the beneficiary of flawed presidential election as deputy president elect represented by Mr. Kigen.

Other organisations and entities that wanted to be included as amicus curiae were;

  • Katiba Institute - Prof Yash Pal Ghai was declined to participate
  • Law Society of Kenya - was declined to participate

Pretrial Hearing[edit]

During the status conference judges decided on major issue brought up by the lawyers.

The court rejected 900 pages which formed the Second Affidavit of Raila Odinga to support Raila`s position. on the basis that it amounted to "new evidence" which is not admissible under The Kenyan Constitution. Senior Counsel, George Oraro for Raila Odinga, argued it was not "new evidence" but "further and better particulars", giving precise details of each alleagtion which the defence must answer. Chief Justice Willy Mutunga did not agree.[11] Also refused them a chance to audit the ICT system of IEBC citing that the process was time consuming.[12] The 900 pages included the evidence of Raj Pal Senna marked "RO6"

The court also rejected Africog request that IEBC produce all register that were used to identify voter at polling station citing time limit of 7 days to hear and rule the case.[13]

The court had also rejected LSK and Katiba institute a chance to be Amicus curiae as they were seemed partisan to Uhuru Kenyatta and william Ruto. But attoney general Githu Muigai was allowed

Case Hearing[edit]

Africog petition sought to demonstrate that constitutional and legal safeguards on the election process were so breached that the accuracy and legitimacy of the electoral outcomes was laid open to question. They sought to demonstrate that the electoral process was neither accountable nor transparent and its results are, therefore, non-verifiable.[14]

Raila`s petition sought to bring out the difference of actual registered voter, use of Green Book and introduction of Special register. He also sought to bring attention of technological failure that cast doubt on provisional result and breakdown of BVR Kit at polling day. He also alleged massive electoral fraud and malpractice occurred that helped his opponent to win. He claimed that IEBC server and TNA server were hosted by KENCALL using same IP address.,[15][16]

During the case closing Lawyer for IEBC chairman Ahmednasir Abdullahi coined the term Raila Doctrine that state that an election can never be free and/or fair unless Raila Odinga wins the election;[17]

Case ruling[edit]

The case was decided unanimously by the six sitting judges.;[18]

  • The elections were indeed conducted in compliance with the Constitution and the law.
  • That Uhuru Kenyatta and William Ruto were validly elected
  • That rejected votes ought not to have been included in calculating the final tallies in favour of each presidential candidate.

The final judgement was issued on 16 April 2013. The ruling in full can be downloaded here [19]

Other Issue[edit]

The court ruled that all members are to pay for their own cost.[20]

Aftermath[edit]

After the supreme court gave its ruling on 30 March, both Uhuru and Raila accepted the ruling.

In a televised speech, Uhuru said that "judgment upholding his election as the fourth President of Kenya is a victory to all Kenyans". He also said that his administration will be an all inclusive one and nobody should feel isolated. He further extended an olive branch to his major competitor, Raila Odinga.[21]

In his concession speech, Raila said 'Kenya is more important and urged Uhuru to reunite all Kenyans and uphold constitutionalism'. He also disagreed with the court but he also noted that their decision is final.[22] However the next day he Told BBC that he will seek peaceful ways to end a row over poll results.[23]

President Swearing in Ceremony[edit]

The swearing in ceremony of Uhuru as president and William Ruto as deputy president was held on 9 April 2013. According to Article 141 (2) (b) of the constitution says that in case the Supreme Court upholds the victory of the president-elect, the swearing in will take place on “the first Tuesday following the seventh day following the date on which the court renders a decision declaring the election to be valid.”,[24] The event was held at Kasarani Stadium.

Recent developments[edit]

The full report of forensic investigation carried out by Raj Pal Senna was published on the website www.kenya-legal.com[25] This inspired a documentary called "50%+1 - The Inside Story" by KTN TV and the notable journalists John Namu and Mohammed Ali [26][27]

Souces close to Keriako Tobiko, the DPP for Kenya confirmed that the investigation by Raj Pal Senna and the legal notices filed by a voter George Nyongesa[28] triggered the arrest and prosecution of the James Oswago,[29][30] the former CEO of the IEBC

The evidence filed by the IEBC and Uhuru Kenyatta included technical evidence on the technology deployed during the elections and the claims of what went wrong with the technology. The OpCo Report, following a forensic investigation of the affidavits of James Oswago (CEO of IEBC), Isaack Hassan (Chairman od IEBC), Immaculate Kassait (Director of Voter Registration at IEBC) and Dismas Ong'Ondi (Director of ICT at IEBC), and Raj Pal Senna highlighed the following findings:[31]

The IEBC stated in sworn affidavits that: 1.IEBC purportedly spent KES 16 billion on BVR(biometric voter registration)kit to acquire the following:

 1 HP DL 580 Proliant Server 2TB HDD + 128GB RAM for Central Biometric Server
 SMART Array P410
 15,000 Dell 500GB HDD laptops
 15,000 MorphoTop fingerprint scanners
 15,000 MorphoCivis software licenses
 15,000 cameras
 15,000 printers
 15,000 USB flash drives
 15,000 USB modems
 15,000 3G/GSM SIM
 15,000 Windows 7 licenses
 15,000 MS Office licenses
 15,000 MS Windows Server 2008 license
 Unspecified number of solar chargers
 15,000 hard carrying cases

2. The IEBC purportedly spent KES 9 Billion on EVID (electronic voter identification) kit to acquired the following:

 33,400 Dell 500 HDD laptops
 33,400 Futronics and Nordsen fingerprint scanners
 33,400 Innovatrics ExpressID software licenses
 33,400 printers
 33,400 CD Cards
 33,400 USB modems
 33,400 3G/GSM SIM
 33,400 MS Office licenses
 33,400 Windows 7 licenses
 33,400 hard carrying cases
 Unspecified number of solar chargers
                                                        

3. The IEBC purportedly spent $45 million on the RTS (results transmission system)to acquire the following:

 1 HP DL 580 Proliant Server 2TB HDD, 128GB RAM :National Tally Centre           
 1 HP DL 900 Proliant  Server 2TB HDD, 128GB RAM backup National Tally Centre
 290 HP DL 580 Proliant Servers 2TB HDD, 128GB RAM :Constituency Tally Centre
 47  HP DL 580 Proliant Servers 2TB HDD, 128GB RAM for County Tally Centre
 66,800 laptops (2 at each polling station)
 580 laptops (2 at each county tally centre)
 94 laptops (2 at each county tally centre)
 67,813 3G/GSM SIM Cards for USB modems
 33,400 3G/GSM SIM Cards for mobile phones
 67,813 USB modems
 10,000 Nokia 100 mobile phones
 25,000 Nokia 1680 mobile phones
 Thuraya satellite phones (quantity unknown)
 Web based manual over-ride system ( CRM application “African Focus CRM”)
 RTS software (NEMS – developed by Next Technology for 2010 Referendum)
 Java Application developed by IFES to transmit results of 6 elections
 339 Windows Server 2008 R2 licenses
 67,474 Windows 7 licenses
 67,813 MS Office licenses
 Unspecified number of solar chargers
 Unspecified number of carrying cases
 339 display screens and stands

4. IEBC admitted that it covertly single sourced server and database services from Kencall and spent no less than $26.5million on the RPS (results presentation system) which comprised:

 1 Server at Kencall running Oracle 11g Goldengate
 1 HP DL 580 Proliant Server at Bomas
 Oracle 11g Goldengate database license
 33,400 Oracle 11g user licences

In a letter to the Court during the Petition hearing, a voter George Nyongesa,[32] invited CJ Mutunga and the Bench to do the simple math to work out the total amount of computing power that IEBC acquired:

 (i)   Total storage capacity on disk drives             = 56,769.82 TB
        HP DL580 Proliant servers  =    339 x 2 + 1 x 1 = 679 TB
        Laptops =(15,000 + 33,400 + 66,474) x 500Gb = 56,090.82 TB
 (ii)   Total DDR3 RAM                                                       = 266.86 TB
        HP DL 580 Proliant servers = 340 x 128GB = 43520GB   = 42.5 TB
        Laptops=(15,000 + 33,400 + 66,474) x 2= 229,748 GB = 224.36 TB
 (iii)  Total CPUs                                             = 115,554
        HP DL 580 Proliant servers         = 340 x 2 = 680
        Laptops =(15,000 + 33,400 + 66,474) x 1 = 114,874
 (iv)  Total Cores                                            = 232,468
        HP DL 580 Proliant Servers        =  340 x 8 = 2720
        Laptops = (15,000 + 33,400 + 66,474) x 2 = 229,748
 (v)   Total data for BVR = 636 TB
        14.5 million x 46MB = 636 TB  (116 million files, 8 per voter = 46MB in size)
 (vi)  Total data for RTS = 978 MB
        30kb x 33,400 = 978 MB  (0.006% of one server : There were 340 servers)

To put this amount of computing power into perspective it is important to consider one of the most powerful servers on the market, the reputable Oracle Exadata X3-8 server. Full Rack costs $1.2 million and has:

 2 Database servers (each with 8 x Xeon 10 Core CPUs, 2TB RAM, 8 x 3TB HDD )
 14 Storage servers (8 x 3TB HDD, 2x Xeon 6 Core CPUs, 1.6 TB Flash Memory)
 Useable storage capacity 224 TB (RAID 1 – mirrored)
 Total CPUs = 30      (IEBC had 114,874 available)
 Total Cores  = 328   (IEBC had 232,468 available)
 Total CPU Cache = 4 TB
 Total DDR3 RAM/Flash =26.4 TB   (IEBC had 226 TB available)
 This has the capability to carry out 1,500,000 (1.5 million) simultaneous transactions PER     SECOND.
 Lifespan = 10 years
 Load capacity = 16TB per hour (17,000 times beyond the requirements of RTS)

This summary was included in the evidence of Raj Pal Senna marked "RO6" in the 900 pages attached to the affidavit of Raila Odinga which was rejected by The Supreme Court.

References[edit]

  1. ^ http://kenya-legal.com/main/articles/6/bvr-not-biometric
  2. ^ http://kenya-legal.com/main/articles/1/evid-not-compatible-with-bvr
  3. ^ http://kenya-legal.com/main/articles/2/rts-was-sabotaged
  4. ^ http://kenya-legal.com/main/articles/3/oracle-was-used-to-rig-and-steal-election
  5. ^ https://en.wikipedia.org/wiki/Kriegler_Commission
  6. ^ http://kenyastockholm.files.wordpress.com/2008/09/the_kriegler_report.pdf
  7. ^ https://www.ktnkenya.tv/?articleID=2000083919&story_title=what-raila-failed-to-tell-in-petition-against-uhuru&pageNo=2
  8. ^ http://www.standardmedia.co.ke/print/2000083919/the-raila-supreme-court-evidence
  9. ^ http://www.kenyalaw.org/klr/index.php?id=800
  10. ^ All Africa .Kenya: Text of Supreme Court Decision Upholding Election Results [1]
  11. ^ Supreme Court blow for Cord as judges reject new evidence. . Business Daily . March 26, 2013 [2]
  12. ^ Supreme Court rejects Raila's application for IEBC IT system audit. Daily Nation. March 26, 2013 [3]
  13. ^ Court Rejects Africog’s Manual Voter Register Application. Citizen TV
  14. ^ AfriCOG Question and Answer about the Electoral Petition
  15. ^ Summary of CORD's petition. Standard Media
  16. ^ CORD Reply to Affidavit.[CORD Petition: Summary of the Substance of the CORD Response to Defence Teams of IEBC, Uhuru Kenyatta and William Ruto][4]
  17. ^ Nullifying poll results could spark a crisis, electoral body boss warns Standard Media acc date 2nd may 2013 [5]
  18. ^ All Africa .Kenya: Text of Supreme Court Decision Upholding Election Results [6]
  19. ^ Full Ruling [www.kenyalaw.org/klr/fileadmin/pdfdownloads/Petition_No.5of2013_Full_Judgement.docx]
  20. ^ All Africa .Kenya: Text of Supreme Court Decision Upholding Election Results [7]
  21. ^ PPS. Supreme Court’s judgment a victory to all Kenyans: Uhuru
  22. ^ Raila accepts Supreme Court verdict. Standard Media
  23. ^ Kenya's Raila Odinga 'to continue struggle peacefully'.BBC> [8]
  24. ^ Inauguration ceremony on April 9th at the Kasarani Stadium
  25. ^ http://kenya-legal.com/main/articles/4/opco-report
  26. ^ http://www.standardmedia.co.ke/ktn/video/watch/2000077350/-part-one-the-inside-story-50-1-what-really-happened-during-the-2013-elections
  27. ^ http://www.standardmedia.co.ke/ktn/video/watch/2000077350/-part-one-the-inside-story-50-1-what-really-happened-during-the-2013-elections
  28. ^ http://kenya-legal.com/main/albums/view/4
  29. ^ http://www.standardmedia.co.ke/ktn/?videoID=2000071378&video_title=james-oswago-arrested-over-bvr-kits-scandal
  30. ^ https://www.kenya-today.com/news/breaking-iebc-ceo-james-oswago-arrested
  31. ^ http://kenya-legal.com/main/public/efile/d0/00d0_2416.pdf?c=a029
  32. ^ http://kenya-legal.com/main/albums/view/4

Original courtesy of Wikipedia: http://en.wikipedia.org/wiki/The_Kenya_Presidential_Election_Petition_2013 — Please support Wikipedia.
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