Why Raila’s case failed at supreme court

Lack of evidence and forgery of documents are some of the reasons that moved the Supreme Court of Kenya judges to unanimously dismiss the petitions challenging the election of William Ruto as President.

The court found the petition was to some extent, based on falsehoods by some lawyers and falsified online logs by a witness. The judges expressed displeasure that the false evidence was contained in sworn affidavits.

“Affidavits filed in court must only deal with facts, swearing to falsehoods is a criminal offence,” CJ Koome said as she referred to affidavits by lawyers Celestine Opiyo, Arnold Ochieng Oginga and former corruption whistler John Githongo.

Githongo’s affidavit

“The contents of John Githongo’s affidavit, which may contain forgeries, are dismissed for not meeting evidential threshold,” said the CJ, referring to the document that purported to demonstrate claims of hacking of poll systems.

In the affidavit, Mr Githongo had narrated to court of a young man, who claimed he was part of a 56-member team of hackers employed to manipulate Forms 34A that captured results from polling stations that the Independent Electoral and Boundaries Commission (IEBC) was posting on its public portal.

Not even the live video played in court by one of Mr Odinga’s lawyers, Julie Soweto, demonstrating alleged interference of the election systems by a Venezuelan, Jose Carmago, could impress the judges. 

The inadequacies in the petition plus the oral arguments made by his lawyers prompted the top court also to use strong words while dismissing the case. The judgment discredited the evidence presented by the petitioners as “hot air, outright forgeries, red herring, wild goose chase and unproven hypotheses”.

Although the judges acknowledged the divisions in the IEBC that saw four commissioners reject the results announced by chairman Wafula Chebukati, they noted the feud appeared to have emerged at the tail end of the electoral process and could not therefore warrant nullification of the presidential results.