Of stubborn facts and why the Jubilee logic does not add up

Maina Kiai by Maina Kiai
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John Adams, the second president of the USA, said that “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

This is truer today, in an era where fake news and slick propaganda work on “our wishes, our inclinations” to subvert facts and evidence to suit the “dictates of our passions.” Kenya is fast becoming a global leader in fake news and propaganda, led from within the highest levels of the state, assisted by western propaganda teams.

So let’s get some facts straight. First, Jubilee has been shouting from the rooftops that it won the presidential elections in August. That is plain hogwash. 

The fact is that it is impossible to tell who won the election.

The Supreme Court’s scrutiny — observed and certified by agents of the IEBC, Jubilee, and Nasa — found that 56 Forms 34B (constituency tallying forms) did not have security watermarks, certifying them as authentic. 31 Forms 34B did not have serial numbers, as a guarantee that they were the genuine item, printed by the same printers.


This means that in about 80 constituencies — with about 5 million voters — it was impossible to tell whether the IEBC figures were genuine or made up. A flawed process can never produce genuine results; it only produces predetermined results.

The same scrutiny also looked at a sample of 4,120 Forms 34A (10 percent of all forms) from 5 counties. It found that some forms were carbon copies; some did not include IEBC stamps and others were photocopies, again making it impossible to ascertain whether the figures were genuine as found at the polling station, or they had been tampered with to produce the required results.

Now, the IEBC through Ms. Immaculate Kassait, swore an affidavit that all Forms 34B and 34A had security watermarks and were serialised, and produced the contract with Al Ghurair requiring these features.

So either Al Ghurair did not conform to their contract, or thus misled IEBC, or there was significant tampering with the figures and the forms. And if it did conform to the contract, then Ms. Kassait lied to the court, and should be charged with perjury.


Judge Njoki Ndungu’s assertion that she personally went through 41,451 Forms 34A and 291 Forms 34B between September 1 and 20th is suspicious and should be ignored, if not taken forward for further action.

Unless, of course, she is superhuman and can work more than the 24 hours a day to do this scrutiny as well as have the time to draft, write, edit and/or read a 440 page judgment, complete with research, citations and court decisions! 

Anyone who has drafted a serious paper of 20 pages knows that the researching, drafting and counter checking alone will take more than 21 days!

But the more serious indictment is that she conducted this scrutiny in secret, after the Court ordered one, in which all parties were represented, and which she did not dispute until she read her judgment on September 20.  Her different findings from her personal and secret scrutiny raise serious ethical and legal questions on her veracity and integrity.


Or could she have looked at different forms than the ones earlier scrutinised with all parties present and agreed? If so that raises even more questions about how she got them, and after the decision on September 1.

Second, Jubilee has been claiming it has the numbers to win the next phase of the election. But if so, why then is it so determined to change the rules mid-stream (remember the Supreme Court did not raise any issues with the law, only how IEBC implemented the laws) and give themselves advantage?

Why take us back to the dangerous, unverifiable and easy-to-manipulate manual system? And why is it opposed to opening up the IEBC servers so we can all see what happened and who has deleted what?

The fact is that if it did indeed have confidence in its numbers it would be the first to push for more transparency, more accountability, and more verifiability. But it is doing the exact opposite. So what does that stubborn fact say?

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