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Kenyan top court begins writing judgment in presidential vote battle

NAIROBI (Xinhua) -- Kenya’s Supreme Court judges on Wednesday began to write a ruling on the presidential election petition hearing after Tuesday’s hearings on whether to uphold President Uhuru Kenyatta’s re-election or nullify the poll results.

The two days of court hearing concluded Tuesday night with the presentation of a report by a Supreme Court team of information technology experts, which showed the country’s electoral body failed to comply with the technology rules and regulations when it conducted the Aug. 8 presidential polls.

"These elections were shambolic," charged James Orengo, the lead lawyer for opposition leader Raila Odinga, who wants the election of Kenyatta nullified for failing to meet constitutional requirements of being free, fair, transparent and verifiable.

The Supreme Court ordered the scrutiny of the vote and the result declaration paperwork. Odinga’s lawyers produced result declaration forms that lacked security features as outlined by the Independent Electoral and Boundaries Commission (IEBC).

Odinga’s lawyers told the apex court the result declaration forms without security features were falsified and the results contained in them should equally be dismissed.

The lawyer representing the elections body, Paul Muite, said the election regulations did not specifically have strict requirements for the security features on the result declaration forms.

The team of experts assigned by the Supreme Court confirmed the access to the IEBC servers was restricted and therefore did not fully comply with the orders of the Court.

President Kenyatta’s lawyer Ahmednassir Abdullahi called for the dismissal of the petition to nullify the election results. He described the evidence provided by Odinga’s lawyers a "piece of science fiction."

Abdullahi said the opposition leader did not prove his case as required under the "burden of proof" to warrant the nullification of the results announced by the elections body.

During the hearings, the Supreme Court judges questioned the IEBC lawyers on the differences recorded between the presidential vote and the votes for all the other candidates who participated in the polls.

"There is room for the stray ballot," said IEBC lawyer Tom Macharia.

Supreme Court Judge Smokin Wanjala asked the IEBC what voters would do with the five other ballot papers if they refused to vote for the five other candidates.

The vote differentials was a key part of Odinga’s charge that the votes were rigged to the extent that it was impossible to ascertain if Kenyatta was validly elected.

In response to the orders providing the opposition leader access to the IEBC servers, Orengo said there were cases of users signing into the IEBC system multiple times against regulations.

Odinga’s lawyers also confirmed the identity of private users who gained access to the IEBC system using private mail addresses and uploaded the presidential election forms.

The examination of the IEBC server confirmed only 277 users gained access to the servers as opposed to the number of 40,833 election officials who were required to upload their forms on the system.

Odinga’s lawyers asked the Court to nullify the elections, but Kenyatta’s lawyers said the results provided in court from the verification of the IEBC servers differed from what their experts found out.

Orengo submitted that what the court ought to look at is whether the election was done accurately, efficiently, and in an accountable fashion.

"The question of legitimate election was settled by the Court of Appeal when they said the IEBC must be fully above suspicion and command the respect of Kenyans," said Orengo.

He argued that there must be a winner and loser in any contest, but that the contestants are more interested in the fairness of the process than the outcome.

On claims that the different margin of votes between the presidential votes and other seats were minimal and could not affect the final outcome, the NASA lawyers submitted that the IEBC was not telling the truth.

The Court is expected to rule on Sept. 1 on whether the election was valid or whether it should be repeated, if it finds evidence to nullify the process.

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