Court blames polls commission for botched vote

The full ruling detailing the court's shock decision on September 1 to annul President Uhuru Kenyatta's victory struck a searing blow to the credibility of the election commission, casting doubt on its ability to organise a new poll in less than a month.

Deputy chief justice Philomena Mwilu described "disturbing, if not startling, revelations" about the conduct of the Independent Electoral and Boundaries Commission (IEBC) and singled it out for ignoring a Supreme Court order to open up its computer servers after opposition allegations of hacking.

The four judges who decided in a majority decision to annul the vote said the election commission had failed to verify the numbers before declaring Kenyatta the winner. Two judges also delivered dissenting judgements in the court session which lasted over 10 hours.

Lawyers for Raila Odinga's National Super Alliance (NASA) coalition last month challenged Kenyatta's re-election alleging rigging, hacking and tampering with results.

On the hacking charge, the IEBC was excoriated for failing to provide evidence that could have cleared up some of Odinga's claims, with Mwilu arguing the burden of proof was on the electoral commission.

"Our order of scrutiny was a golden opportunity for the IEBC to place before the court evidence to debunk the petitioner's claim," Mwilu read from the court's detailed judgement.

"If IEBC had nothing to hide it would have readily provided access to ICT (information and communications technology) logs and servers to disprove the petitioner's claim.

"But what did IEBC do with it? It contemptuously disobeyed the court orders in these very critical areas."

Mwilu said the judges were left with no choice but to accept opposition claims the election commission's "ICT system was infiltrated and compromised and the data therein interfered with, or IEBC officials themselves interfered with the data, or it had bungled the transmission system and were unable to verify the data."

However Chief Justice David Maraga rejected Odinga's calls to prosecute top IEBC officials, saying there was no evidence to prove electoral offences.

"What we saw in evidence is systematic institutional problems and we were unable to find specific fingerprints of individuals who may have played a role in the commission of illegalities," he said.

Maraga also said there was no evidence of misconduct from Kenyatta.

'Mysterious puzzle'

Mwilu said that while voting day had gone off smoothly on August 8, the "system thereafter went opaquely awry".

The IEBC was heavily criticised for failing to prove it had received tally sheets, known as forms 34A, from all 42,000 polling stations before declaring the final result on August 11, awarding Kenyatta victory with 54 percent of the vote.

Mwilu described the obscurity around the forms 34A as a "mysterious puzzle of labyrinthine proportions".

Thousands of the forms were not made available, as legally required, by the time results were announced. A court study of a random sample of those that were provided showed many lacked security features, stamps and signatures.

The IEBC blamed network failures for missing and delayed tally forms, but the judges dismissed this excuse saying they should have been prepared, and that it should have taken only a few hours to get to a spot with enough connection to scan through the forms.

The way the result is transmitted "is as important as the result of the election itself", said Mwilu.

"Failure of the electronic system was a direct violation of the law."

'Neither transparent nor verifiable'

Maraga slammed "inexplicable irregularities that go to the very heart of electoral integrity".

Both judges questioned how an election costing taxpayers 43 billion shillings (347 million euros, $416 million) could result in problems with transmission and "disturbing" questions over the security of forms -- which were all meant to be printed by the same company.

"We find that the 2017 presidential election was neither transparent nor verifiable," leading to the unprecedented decision to nullify the vote, said Mwilu.

Maraga ordered the IEBC to "put in place a complementary system" to be used in the event that technology fails in the new election due on October 17.

Wednesday's detailed ruling, plus opposition demands for an overhaul of the commission and warnings from the French firm that provided digital voting kits that it will not be ready on time, have raised fears it will be impossible to meet the poll deadline.

Kenya's constitution says a new election must be held within 60 days of the court's annulment.