EXCLUSIVE: ODM dossier - How the rigging was done

Preamble

CHAIRMAN OF THE ELECTORAL COMMISSION SAMUEL KIVUITU PUBLICLY ADMITTED:

• That he is not sure Kibaki won the election.

• That he announced the results under duress from Kibaki’s Party of National Unity and from the ODM-K of Kalonzo Musyoka (Kibaki has since appointed Musyoka vice-president).

• That he was aware that ECK officials, especially in Central and Eastern provinces, were tampering with results before the end of tallying.

• That he was aware that in some constituencies, the total votes amounted to more than the total registered voters.

• That he was not in control of his officials in the field in the critical tallying period, and in some of the key places where votes were rigged the officials had “disappeared” or “switched off their phones”.

• That election documents have been tampered with by ECK officials since the results were announced.

THESE ARE ASTOUNDING ADMISSIONS BY A LEGAL OFFICER IN CHARGE OF A NATIONAL ELECTION PROCESS.
It is doubly astounding that the same legal officer, aware of these anomalies, refused to fulfill his legal obligation to obtain satisfactory resolution of these issues before pronouncing a winner, as the law demands, and then he rushed within minutes to State House to facilitate the hurried swearing-in of that person.

The Orange Democratic Movement has rejected the December 27, 2007, Presidential Election results on grounds of massive vote rigging. The following information is distilled from a report by an ODM committee that scrutinised voting procedures in polling stations, along with result reporting procedures, and returns from agents, constituency tallying centres and the national tallying centre at KICC.

The committee found that the Electoral Commission of Kenya erred when it announced on December 30, 2007, that Mwai Kibaki had won the election with 4,584,721 votes to Raila Odinga’s 4,352,993. The committee found that 471,063 votes had been fraudulently added to Mwai Kibaki’s total and 2,772 votes had been deducted from Raila’s. The result computed by the committee and based on vote tallying from the 162 constituencies listed below, and also deducting the votes given to Mwai Kibaki (see table next page) and those taken from Raila Odinga, came to 4,356,001 votes for Raila and 4,109,014 for Kibaki.

Rigging began with the appointment of ECK commissioners against the IPPG guidelines. The appointment of new judges just before the election was also part of the plan. The persistent calls by the real losers that ODM go to court are misleading in this light. It is clear that ODM would get no redress in court. Besides partisan judges, the facts are that:

• Samuel Kivuitu and a number of the ECK commissioners who helped to perpetrate this fraud are lawyers.

• Some petitions from the 2002 general election have still not been heard, yet the MPs’ term in parliament has expired.

• The Chief Justice himself was at State House, all ready, with his robes on, to swear Mwai Kibaki in, 20 minutes after Kivuitu announced his result. That can only have happened if he knew in advance what would take place, and by being there he condoned this.

• Since December 29, the documents relating to the election have been tampered with and changed, to help justify the results announced.

• Some ECK commissioners and officials, returning officers and clerks have come forward to admit that rigging took place.

These factors and others make going to court pointless. It is just a ploy to tie ODM up in courts for years, while Kibaki stays illegally in office. The following analysis is made purely on the basis of documentary evidence that was obtained from the ECK. It is reasonable to assume that, as further evidence becomes available, Raila Odinga will have won by an even greater margin.

THE CALCULATIONS IN THIS REPORT ARE BASED ON THE FOLLOWING:

ODM accepts the results in 162 constituencies, but only because it has no documentary evidence to the contrary. In these 162 constituencies, Raila garnered a total of 3,735,604 votes, while Kibaki garnered 2,312,870. However, of these 162 constituencies, 37 are mentioned in the preliminary report of the civil society group Kenyans for Peace with Truth and Justice as having problems and discrepancies, ranging through:

• Party agents’ signatures were missing.

• Forms 16A were altered.

• Forms 16A were missing but the results were announced anyway.

• The returning officer completed the Forms 16A at KICC.

• There were many unsigned Forms 16A from polling stations, all filled by one person using the same pen.

• Forms 16A did not tally with Forms 17A.

• The constituency results were not physically brought to KICC.

• The results were announced at KICC while tallying was still going on at the constituency level.

• There were differences between results announced at the constituency and those announced at KICC.

• The presidential ballot was higher than the parliamentary ballot.

• The results announced were thousands more than the valid votes cast.

• The returning officer disappeared when questioned about missing documents.

• The returning officer was threatened against making returns.




























DURING the polling in these 47 constituencies, and afterwards at the KICC tallying centre, gross violations of express provisions of the law on voting took place. In 42 of them, presiding officers at polling stations refused to make Forms 16A available for signature by agents verifying counting. When these votes reached the tallying stage, the returning officer did the same.

This was so that fictitious results could be completed at KICC in favour of KIbaki. In some other cases where the Forms 16A were completed, officers at KICC simply altered them (see Juja example on next page). At some polling stations, ODM agents were not even allowed to enter, or they were forcefully thrown out. This gave those rigging the vote the opportunity to do whatever they wanted – mostly stuffing ballot boxes with the ballot papers that ODM and one whistleblower had told the world before the elections were being filled in for the purpose of rigging. In 21 of these constituencies, ODM agents were physically assaulted, intimidated and harassed by members of the armed forces.

These were all constituencies of ministers and senior government officials. At KICC, the ECK had failed to establish a national tallying mechanism, which it is obliged to do by law. The ECK allowed returning officers to submit their returns in the absence of agents, which is against the law. The ECK received ‘results’ away from public scrutiny from candidates or their agents, and then announced these ‘results’, which is against the law.

When ODM agents tried to get into the tallying room where results were being fraudulently altered, their way was barred by armed police and paramilitary officers. When ODM asked about the national tallying mechanism that should have been established and under express legal provisions should have allowed them to witness the tallying, they were sent to the press centre at KICC where they could only watch as unverified results were announced at will.

Many of these results were not supported by Forms 16A. This was confirmed on the night of December 29, when ODM and other party agents spent the night in the tallying room going through the files for all the 210 constituencies. In 48 constituences, the results announced had no Forms 16A, which made them unacceptable under the law as true and accurate results. These results had simply been made up and then announced by ECK officers at KICC. In 10 of the disputed constituencies listed on the previous page, the total for presidential votes cast in the constituency exceeds the total for parliamentary results.

We all know how we vote. We check our names in the register with one clerk, then proced to the next three clerks to collect presidential, parliamentary and civic ballot papers. Is it believable that tens of thousands of people lined up all day at the polling stations, got inside, and then only voted for the president? It is not only incredible but it is totally against the law, which gives a legal duty to the presiding officer to ensure that everyone marks all three papers and places them in the proper ballot boxes. What were these presiding officers doing if tens of thousands of people did not, for some unknown reason, cast all their ballots? It is obvious that these tens of thousands of extra votes were again part of the marked ballot papers ODM and others were talking about before the election. They were fraudulently introduced into the ballot boxes in those areas where Kibaki was assumed to be popular and where ODM agents had been prevented from carrying out their duties of scrutiny.

All of these matters are covered by law in the Constitution of Kenya. The law was grossly violated, yet the law enforcement officers of this country have not seen fit to charge anyone. At the tallying centre, the ECK also announced results for 39 constituencies that were different from the results issued and confirmed by returning officers and ODM agents, mostly increasing results for Mwai Kibaki and reducing them for Raila Odinga. On the evening of the second day of c o u n t i n g , December 29, when Raila Odinga had a lead of more than a million votes and was going to win, the ECK’s activities moved into desperate mode. Suddenly, parliamentary results were announced without the corresponding presidential results. When an announcing ECK officer was challenged about this, he said they were “very tired” and would announce some more after two hours. What was actually happening was that results for constituencies where Kibaki might be popular were being held back, so that they could be inflated by the appropriate amount to give Kibaki more votes than Raila – when all the votes were in and officials could see how many votes needed to be added to Kibaki’s totals. This blatant fraud was conducted in full view of the world via TV screens. Five commissioners and one other officer have come out in public to confess what they saw happening. Samuel Kivuitu himself has talked of the rigging that went on. There is thus empriical, verbal and documentary evidence of massive rigging. Any government worth its salt would have already instituted legal proceedings against the offendors.

WHAT OTHER EVIDENCE are our law-enforcement officers waiting for? ECK chairman Samuel Kivuitu said he had been put under pressure by PNU and ODM-K to announce the
results. The law says that “In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction of any other person or authority.”

JUST ONE EXAMPLE: THE CASE OF JUJA CONSTITUENCY
In Juja, the votes for Mwai Kibaki were inflated by a massive 52,000, from the 48,293 recorded by the returning officer, to the 100,390 announced by the ECK. A number of other constituencies had similar stories – Kieni, Kirinyaga Central, Gatundu South, Kajiado North and others (see table left). The documents from Juja suffice as one example. Let the documents tell their own story: