How Raila Odinga’s Presidency was Stolen in 2007 ?

On Thursday, December 27, 2007, the voting process in Kenya went on without major problems save for a few hitches here and there. Raila was himself faced with a situation where he couldn’t vote because his name was missing from the voter’s register at his Lang’ata Constituency. But after Kivuitu intervened, Raila was able to vote. Throughout the voting process, there was no huge documentation of cases where voters could not cast their votes or where circumstances made it difficult or impossible for the voting process to proceed. However, there are several reports to the effect that ODM Party agents, local and International observers were blocked from entering polling stations. In 42 constituencies, “presiding officers at polling stations refused to make Form 16A available for signature by agents verifying counting” while at some polling stations, ODM agents were not allowed to enter. 377 There were cases in which fake ballot papers were intercepted by Wananchi as candidates tried to smuggle them into the official ballot boxes. A key example is the case of Kajiado North where the brother of Professor George Saitoti, former Vice President in Moi’s government, had to be shielded by police from angry voters who claimed that he was caught red-handed trying to smuggle votes into the voting room. On the whole, the voting process was passed by local and international observers as having been smooth by democratic standards. Some Kenyans began to line up at the polling stations as early as three AM. After the votes were cast and Kenyans retreated to their homes to begin following the tallying process and announcement of results, trepidation set in especially when it became clear that election was being rigged in favour of Kibaki and his PNU Party. The results were being communicated live on TV and some of the scenes that were witnessed at KICC strongly pointed to the fact that something had gone terribly wrong. But how exactly was Raila’s Presidency stolen before the very eyes of Kenyans and the international community? According to a compilation of irregularities by an ODM investigative Committee, (378) local observers, (379) international election monitors and independent groups that were also monitoring the process, there were several cases of shocking irregularities. For example, Constituency results were not physically brought in at the tallying centre at KICC, returning officers were threatened against making results, signatures of Party agents were missing from relevant documents such as Form16A, returning officers completed the forms at KICC while there were cases where results were announced at KICC when tallying was still going on at the Constituency. (380) Ms Koki Muli, who led a team of local observers and who testified at the Kriegler Commission, told the Commission that she saw ECK officials changing figures and added that “Some returning officers arrived and were allowed to fill in official forms to align them with figures that had been announced.”(381) Further, “She (Muli) said that she witnessed presentation of photocopies of Form 16A, which were readily accepted by the ECK contrary to regulations which stipulates that only original forms filled by all agents are acceptable… She said some of the returning officers arrived at the national tallying centre without documents and their explanation was that they had handed them over to district electoral cocoordinators.(382) In some cases, Form 16A that was being sent from polling stations were either unsigned or signed by the same person using the same pen.(383) Another glaring observation was that results that were announced at the Constituency and that were recorded by ODM agents were different from those that were announced at KICC by ECK officials.(384) In several other cases, the Presidential ballot was higher than the Parliamentary ballot,(385) an indication that results had been tampered with. In some cases, the final results were thousands more than the valid votes registered as having been cast.(386) As had been outlined in the previous chapter, results contained in Form 16A are supposed to be the same as those in Form 17A but in many situations, this was not the case. In certain dramatic cases, Form 16A could not be traced even though results from affected Constituencies had already been announced by ECK at KICC.(387) When stakeholders began to ask questions, returning officers simply disappeared when asked about irregularities related to results they are supposed to have filed.(388) In the most serious cases, Form 16A was altered and votes inflated in favour of Kibaki.(389) Available documents from ECK, ODM, Election observer groups and other parties indicate that the biggest rigging took place at Juja polling station number 100 where 52,097 votes were added to Kibaki’s votes by ECK officials who altered Form 16A dated December 28, 2007, that was delivered by Returning Officer Watson Mahinda at the Constituency level and indicated that Kibaki had received 48,293 votes.(390) This is the same figure ODM agents recorded at the Constituency before the figure was publicly announced there. The Mahinda Report, which is signed by Mahinda himself, contains a long list of provisional results for both Presidential and Parliamentary candidates.(391) A careful scrutiny of Form 16A that were used to rig the Juja vote could give a clue about the internal mechanism of the rigging machine by ECK officials at KICC and shed some light on how the stealing of Raila’s Presidency was organized and implemented before Kibaki was secretly installed as President. The original Juja results in the original Form 16A that came from the Constituency were received at KICC by Agnes Kisero (ID no. 6057692) who acknowledged their receipt by signing for them at 5.30 PM sharp.(392) When these results arrived at KICC, a new Form 16A was issued by ECK officials and Kibaki’s votes was inflated from 43,290 to 100,390 after which the same official, Watson Mahinda (ID No. 3346925), allegedly signed the altered form.(393) Mahinda’s telephone number on the altered form was given as 0728458093. A key difference in details contained in the two forms is that after Form 16A was altered to show that Kibaki got 100,390 votes which was announced by ECK, a different ECK official named Catherine W. Mburu is the person whose name appears as the officer who “received” the results.(394). Other key differences are that the name “Mahinda” which appears on the original Form 16A at Juja, is miss-spelt to read “Mahiga”, the signature is overtly different in the two forms while the altered form is hand-written as opposed to the original form which is computer generated. What this shows is that ECK officials were consciously collaborating to rig elections by internally receiving results after they had been handed over by returning officers with the sole objective of changing them. In the case of Juja, it could be safe to conclude that the ECK officer who may have altered the results in Kibaki’s favour was Catherine W. Mburu because there is no other logical explanation as to why figures, changes in spelling of the name of the Juja Returning Officer and an alteration of Mahinda’s signature in the Juja Form 16A became apparent after it was handled by her. Although the original Form 16A submitted by Mahinda indicate that the results were signed at KICC on December 27, 2007, at 5.30 PM, the time and date changed to 8.30 AM and December 28, 2007, respectively when a new Form 16A was issued and received by Catherine Mburu. After the first results were received for this Constituency, ECK officials had more than fifteen hours to change the results which was then announced! Another interesting difference is that at the bottom of the original Form 16A signed by Mahinda, information exists to the effect that the form was printed on December 28, 2007, a day after the ballot was cast. In the altered Form 16A signed by Catherine, the date when the form was printed is December 26, 2007, a day before elections and two days before the Mahinda form was printed. A big question that has to be posed is why ECK officials at the tallying centre had Form 16A in their custody and where they got them because their work had nothing to do with entering results in Form 16A after voting but dealing with results after they were submitted from the Constituency. Where did they get these forms? The implication is that the forms that ECK officials were using to manipulate figures in Kibaki’s favour were printed BEFORE elections and what can be logically deduced from this glaring discrepancy is that the rigging at KICC might have been planned or anticipated. In the same manipulation at Juja, Raila’s votes were increased by 7,671, that is, from 6,081 to 13,752 votes. The increase in Raila’s votes was of no significance as Kibaki’s votes had been increased sevenfold. In the case of Juja, both the Presiding Officer and the Returning Officer refused to avail Form 16A to ODM agents at KICC while they also refused to avail copies of these forms at the Constituency as stipulated by law. I wish to argue that the reason why ECK officials refused to follow the law by refusing to avail Form 16A to ODM agents is that they were privy to or were aware that elections were going to be rigged and availing the forms could have worked against this objective. In Embakasi, Presidential votes cast were more than the total number of Parliamentary votes cast. Total Presidential votes cast was 141,125 while total Parliamentary votes cast was 103,570. According to ODM’s results recorded by ODM agents, observers and other sources at Embakasi constituency which was also publicly announced, Kibaki got 34,821 votes which were inflated by ECK at the constituency level to 72,376 395 votes which were later released by ECK at KICC. Here, Raila’s votes stood at 50,001 which was announced at both the constituency and at KICC. In other words, Raila defeated Kibaki at Embakasi but ECK overturned this result to give Kibaki the lead. An ODM investigative Committee Report on Election rigging indicated that a total of 37,555 votes were added to Kibaki’s votes. The argument is that it is unlikely that over 37,000 voters could have turned up to vote at the Presidential level and not at the Parliamentary level because, according to regulations, both votes are supposed to be cast at the same time. The same pattern of rigging was used at Nithi where 29,348 votes were added to Kibaki’s votes from 66,345 (396) to 95,693. (397) In this case, the returning officer refused to avail Form 16A to ODM agents at the close of polling and counting(398) and this was understandable given the huge number of votes that had been stolen and added to Kibaki to give him victory. It is instructive that this same case of rigging was emotionally alluded to by Henry Kosgey at the press briefing room at KICC. Kosgey asked Kivuitu how 66,000 votes could suddenly turn to 95,000 (399) after passing through the ECK’s tallying room but Kivuitu opted not to respond directly to the question. At this same Constituency, the total Presidential votes cast was 99,006, a figure that exceeded the total number of Parliamentary votes, which stood at 95,981. To give Kibaki an advantage, 3,025 votes were added to Kibaki’s votes on top of the total votes cast 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”