ECK Chairman Samuel Kivuitu appeared nonchalant to glaring irregularities
If rules governing the voting procedure at a polling station in Kenya are examined, it is almost impossible that a voter could cast his or her vote at the Presidential level and fail to do the same at the Parliamentary level. As has been shown in the above cases and in many other instances, ECK officials at KICC rigged elections by inflating Kibaki’s votes in a way that made the total votes cast at the Presidential level far much higher than at the Parliamentary level. Why was it physically impossible for voters to cast their ballots at the Presidential level and not at the Parliamentary level?
The National Assembly and Presidential Elections Act, Cap 7 of the Laws of Kenya provides several steps in the voting process that are impossible to beat. Under Regulation 29(1) of this Act, the first person a voter arriving at a polling station meets is a clerk whose work is to verify the voter’s identity. At this stage, the voter has to produce a National Identification Card and a Voter’s Card. This is for purposes of verifying the voter’s name in the Voter’s Register for the particular voting station and Constituency.
Once the verification is done, a line is drawn through the voter’s name after which the voter proceeds to the next stage manned by another clerk. At the second stage, the voter is provided with the ballot paper for the Presidential candidate before proceeding to the third and fourth stage where the voter gets ballot papers for Parliamentary and Civic candidates. All these ballot papers exist in different colours.
The voter then marks the ballot papers and inserts them in respective ballot boxes in the open hall in the same room. Once the voter has cast the ballots, it is time to move to the last clerk who dips the voter’s left small finger in indelible ink to confirm that he or she has voted. The voter then gets back his or her identification documents together with the voter’s card duly pressed to indicate that he or she has duly voted. This process prevents the same voter from voting twice. From this rigorous procedure, it is practically impossible for thousands of voters to have voted at the Presidential level and failed to vote at the Parliamentary level.
In almost all the forty-seven Constituencies where results were disputed by ODM, Presidential votes far much exceeded Parliamentary votes by a huge margin. Among Constituencies that were Kibaki’s strongholds and in which massive electoral malpractices resulted in appalling differences between Presidential and Parliamentary votes included Kieni, Molo, Juja, Limuru, Mwea, Lari, Kirinyaga Central, Kandara, Gatundu South, North Imenti, Igembe South, Igembe North, Tigania West, Nithi, Malava, Kimilili, 0l Kalou, Naivasha, Mandera West, Kajiado North, Tetu and Laikipia West.(401) In the case of Kirinyaga Central listed above, Kioko Kilukumi, a lawyer, told the Kriegler commission that a loser, Mr. John Ngata Kariuki, was declared winner although a Report compiled by the Kriegler commission indicated that the winner was Mr. Dickson Daniel Karaba, a former MP of the area. Mr. Kilukumi said errors by ECK gave losers seats that they did not deserve.
“From the fresh additions carried by this very commission, it is now clear that a loser was declared a winner as an MP,” said Kilukumi… The study says it picked on Kirinyaga Central because it was among constituencies where ODM claimed results for the PNU candidate declared winner at the constituency was changed at KICC… The study reveals erroneous handling of forms and data, erroneous transfer of the figures from Form 16A to 17A, errors in additions and even in the final results published by the ECK. (402)
The case of Presidential votes being higher than the Parliamentary votes is difficult to understand without an element of fraud coming into the picture because under section 29 (4) of Regulations guarding the voting procedure, it is the responsibility of the Presiding Officer or his/her Deputy to ensure that voters who enter the voting hall after passing through the initial stages cast their ballot papers at all the three stages of Presidential, Parliamentary and Civic elections. In case there is an error, rejected votes are supposed to be marked with the word “Rejected.” The point is that after the voting process, the number of Presidential votes should be equal to that of Parliamentary and Civic votes cast unless some are rejected and properly accounted for. According to the above-mentioned Act, it is a criminal offence for a voter to fail to cast his or her vote at all three levels. Since there was no mass arrest of voters who may have violated this rule, how did Presidential votes exceed Parliamentary and Civic votes in favour of Kibaki if the purpose was not to steal Raila Odinga’s Presidency?
When figures continued to emerge indicating that Presidential votes exceeded Parliamentary votes, sometimes with tens of thousands of votes, the assumption was that some voters cast their ballots at the Presidential level but either walked home with other ballot papers or simply threw them away. What did happen and how was election rigged in Kenya? A study of documents recovered after rigging tells their own story.
In Kandara, 36,618 votes were added to Kibaki’s votes, which rose from 33,825 declared and recorded by returning officers at the Constituency to 70,443 votes.(403) In this case, Form 16A was unilaterally altered by ECK officials at KICC while other Form 16As were filled in by two different persons. A new Form 16A dated December 29, 2007, was issued by ECK at KICC and signed by the same official. ODM agents at the Constituency were denied access to or copies of Form 16A as required by law.
According to an ECK official, there were “…commissioners and three Cabinet ministers” who “were willing to have results tilted in a certain direction” while two of the Ministers who pushed for doctoring of results in a “rigging machinery” which was only known to a few commissioners, lost their seats.(404)
At Ol Kalou, Kibaki got 50,280 votes (405) but after routine manipulations by ECK officials, Kibaki’s total votes shot to 76,998 Votes (406) therefore, Kibaki gained by 26,718 votes. For some reason (or probably to make the figures look probable) ECK officials would inflate Kibaki’s votes and at the same time inflate Raila’s votes. At the same station, Raila’s votes were inflated by 176, that is, from 243 to 419 votes. Increasing Raila’s votes was of no consequence because at the end of the day, it is Kibaki’s votes that were increasing. According to evidence gathered by ODM, there is no single case when Raila’s votes were increased more than Kibaki’s because the agenda of ECK officials who were rigging at KICC was to ensure that Kibaki emerged as the overall winner.
In Molo, ECK officials altered Form 16A at KICC by changing Kibaki’s votes from 50,175 released by ECK at the Constituency to 75,261 votes, released by the Electoral body at KICC, a difference of 25,086 votes that all went to Kibaki. Once again in this case, a new Form 16A dated December 29, 2007, and signed by a new official was issued by ECK at KICC to facilitate the alteration. In the same Constituency, 4,073 votes were added to Raila Odinga’s votes whose tally increased from 19,195 released by ECK at the constituency to 23,268 released by ECK at KICC. The increase in Raila’s votes was of no consequence, given that Kibaki’s votes had been inflated with over 25,000 votes. The Molo case had an important feature in the sense that the announcement of the altered results was made by Kivuitu himself at KICC amid protest by ODM agents who insisted that they had documents that contradicted the results that were being announced but Kivuitu refused to listen. Even international observers who were at the briefing room at KICC and who were present when votes were announced at the Constituency were surprised that the final results that were being announced by Kivuitu exceeded the results they recorded at the polling station by over 25,000. This fake announcement was captured live on national TV.
In Kajiado North, ODM agents were forcefully evicted from the polling station after they refused to accept the counting of ballot papers from extra ballot boxes that had been introduced at the polling station. (407) After this eviction, Kibaki’s votes were increased by 27,682 votes, from 21,356 to 40,038 released by ECK at the constituency to 49,038 released by the Electoral body at KICC. The Presiding Officer refused to avail Form 16A to ODM agents while the total Presidential votes cast was 79,901, a figure that exceeded votes cast at the Parliamentary level (66,190) by 13,711 votes. (408) In the same case, ODM recorded that a total of 210 votes were stolen from Raila Odinga and added to Kibaki by ECK officials. (409) Segments of disturbances at Kajiado were broadcast live on national TV with scenes showing Saitoti’s brother being whisked away by armed security personnel when he first tried to smuggle in ballot boxes stuffed with ballot papers in favour of Saitoti. A youth then addressed police briefly, insisting that the people of Kajiado North would not accept the result of a rigged election. Eventually, Saitoti’s brother was whisked to safety as officers at the polling station proceeded to rig the election with the protection of several armed security personnel. With the brutality with which votes were being stolen to rig Kibaki in as President of Kenya, even some ECK officials at KICC who were not in the loop began to get suspicious. According to a KPTJ log of the tallying process that was done between December 29 and 30, 2007, some officers even refused to accept certain results because of serious anomalies. In its report, KPTJ wrote:
The atmosphere inside the ECK is tense. The day teams leave without properly handing over to the night teams. Kipkemoi Kirui, deputy leader for Team II (night), notes that although results for Lamu East, Lamu West, Wundanyi and Dujis have come in, they do not have the statutory documents, Forms 16A, 16 and 17A, accompanying them. The day team leaders responsible have therefore not signed for them. Kirui also refuses to receive them without the necessary documents because there are doubts about the verity of the data. Word goes round that his team is not accepting results without the accompanying Form 16As. For most of the night, he and his team repeatedly call the returning officers for results together with statutory documents. Statutory documents for Ijara, Galole, Wundanyi and Dujis are not received even though the results are phoned in. (410)
This incident happened at 16:00 hrs on Saturday December 29. At that same time, heated exchanges were happening at the press briefing room between Kivuitu and ODM agents who had insisted that the results were being doctored at KICC by ECK officials but Kivuitu did not act. This failure to act on the part of Kivuitu, even when his own officers who were not part of the rigging were raising alarm is a pointer that Kivuitu knew more than he was telling the public. In its investigative report on election rigging, the ODM Committee noted that:
“The ECK refused to act on disputes raised on the results announced for 47 constituencies where grave voting anomalies had been established by a tally team made up of representatives of political parties and observers. In most of these constituencies, the actual votes cast for Kibaki were lower than those announced by ECK”. (411)
Then, there was the case of North Imenti where Form 16A dated December 28, 2007, was altered at KICC by ECK officials to add 16,216 votes to Kibaki who received 62,468 votes (412) announced at the Constituency but whose votes were increased to 78,684 (413) at KICC. In this case, a new Form 16A dated December 29, 2007, was issued by ECK officials at KICC and signed by the same official, Dickson M. Mweu. In a rare case of extreme manipulation, the same official then increased Kibaki’s figures for the second time from 78,684 to 84,006 votes while maintaining Raila’s votes at 3,370. (414) The returning officer did not avail Form 16A to ODM agents for safe custody as required by law. The case of North Imenti is significant because three different forms were used to submit different results. Secondly, the layout of the three forms was extremely different from other forms.
Although all forms submitted by returning officers at the Constituency level were supposed to be Form 16A, the forms from North Imenti used in the tallying process were stranger because on the top left, they were described as Form “16-(r.40) (1)(a).” I have not examined whether Form 16As used to record results across the country had a standard layout but in the wake of massive rigging that was witnessed at the 2007 election and the consequences of this criminal act, questions could as well be asked. Were the forms used at North Imenti authentic and why were there three different forms for the Constituency signed by the same officer to report the same results?
Another development that makes the case of rigging at North Imenti interesting is that it was Kivuitu, the ECK Chairman himself, who announced the results! This happened at exactly the time when Lawyer James Orengo was trying to intervene so that he could make a point to Kivuitu. Kivuitu refused to listen and continued to read the results. Orengo began to attract Kivuitu’s attention by saying, “Mr. Chairman…Mr. Chairman…” (415) as Kivuitu continued to read results from North Imenti. Shouts of “Mr. Chairman…Mr. Chairman” by Orengo persisted but Kivuitu could not listen. Orengo then moved to the Chairman’s table and continued to say, “Mr. Chairman….Mr. Chairman can you listen to me…we are entitled to a recount” (416) but Kivuitu continued with announcements. Eventually, Orengo managed to get the microphone and addressed Kivuitu but only after a scuffle in which Orengo had to be held by aides to prevent the situation from getting uglier. The GSU personnel were then called in although they were never given instructions to act.
This is a situation where the Chairman of ECK himself was reading fabricated results to the media in the official press briefing room when he probably had, in his possession, documentary evidence that results had been tampered with. Worse still, a Party official who had stakes in the elections was trying to intervene but hecould not listen. Can Kivuitu convince the world that he was not part of or did not know that elections were being rigged? To be continued in part 3…
Raila Odinga’s Stolen Presidency: Pages 283-289
Excerpts from Chapter Sixteen: “How Raila Odinga’s Presidency was Stolen”
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Key witness was bribed: Bensouda
By EMEKA-MAYAKA GEKARA
Posted Wednesday, February 27 2013 at 21:47
International Criminal Court prosecutor Fatou Bensouda has said she has evidence of bribery of a key witness in the Deputy Prime Minister Uhuru Kenyatta’s case.
In her submissions, Ms Bensouda claims the critical Witness Four, a former Mungiki leader, who withdrew his testimony after the confirmation hearings was paid to do so.
This is the witness who said he was present at meetings in State House and the Nairobi Club where Mr Kenyatta and former head of Public Service Francis Muthaura allegedly planned violence.
In a later statement to the ICC, the witness said he lied about his presence in the two meetings.
“Witness Four revealed in an interview in May 2012 that he had been offered and accepted money from individuals holding themselves out as representatives of the accused to withdraw his testimony and provided e-mails and records that confirmed the bribery scheme,” said the prosecutor.
Ms Bensouda was responding to an application by Mr Kenyatta’s and Mr Muthaura’s defence calling for dismissal of the case because of the withdrawal of evidence by the key witness.
Mr Kenyatta, the Jubilee Alliance presidential candidate and his running mate, Mr William Ruto, are charged with crimes against humanity. The other accused is journalist Joshua arap Sang.
The prosecution maintains that despite the withdrawal of the testimony, it had sufficient evidence of Mr Kenyatta’s alleged participation in violence planning meetings at Blue Post Hotel in Thika and Nairobi’s Yaya Centre.
According to Ms Bensouda, the prosecution also has direct evidence showing Mr Kenyatta financed Mungiki youth for retaliatory attacks and his alleged phone call to Mungiki founder Maina Njenga who was then in prison.
The prosecution argues that it has more evidence against the accused that was collected after the confirmation hearing.
“The fact that evidence relied by the Pre-Trial Chamber is withdrawn or new evidence is substituted cannot be sufficient to require a new confirmation process,” said the prosecutor.
She argues that the law allows the prosecution to withdraw or add evidence after the confirmation hearing.
Mr Kenyatta’s defence has asked the court to return the case to the Pre-Trial Chamber, saying it would not have been confirmed without the recanted evidence.
But the prosecution says even without Witness Four, the evidence relied upon by the Pre-Trial Chamber at the confirmation stage was sufficient to commit Mr Kenyatta’s case to trial.
However, Ms Bensouda has no problem if Mr Muthaura’s case was referred to the pre-trial judges for review following the development.
Ms Bensouda also clarified that they had not withdrawn allegations that Mr Kenyatta attended a meeting at State House and at Nairobi Club.
The defence teams accepted to have committed an error for failure to produce Witness Four’s recanting testimony to the pre-trial judges.
The train has started Yet Raila is yet President Z Big thieves arrested Tommorrow will be appear in court The Un-touchables>Kikuyus>
http://www.kenyan-post.com/2013/02/muthauras-icc-witness-and-ps-thuita.html