BY SAM ALFAN.
The Supreme Court has accused Raila Odinga and his running mate Martha Karua of presenting false evidence in support of a presidential election petition at the top court.
The judges took exception affidavits presented by two advocates in support of the petition saying the conduct not only erodes trust but also borders of criminal offence.
The seven judges said the affidavits of Celestine Anyango Opiyo and Arnold Ochieng Oginga, while containing sensational information, were not credible.
The judges said a report of the Registrar on scrutiny of Forms 34A from 15 polling stations confirmed that the forms presented by Odinga were significantly different from the originals, certified copies and those on the Public Portal.
The judges said the purported evidence of Opiyo and Oginga sworn in their respective affidavits was not only inadmissible, but are also unacceptable.
“It has been established that none of the agents on whose behalf the forms were being presented swore any affidavit; that there is nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga to act for them. Yet the two have gone ahead to depone on matters that are not within their knowledge,” said Supreme Court.
Chief Justice Martha Koome said the Supreme Court cannot countenance such conduct because as officers of the court, they should not be presenting falsehoods.
The Chief Justice said affidavits filed in Court must deal only with facts which a deponent can prove.
“As a general rule, counsel are not permitted to swear affidavits on behalf of their clients in contentious matters, like the one before us, because they run the risk of unknowingly swearing to falsehoods and may also be liable to cross-examination to prove the matters deponed,” she said.
“We must remind counsel who appear before this Court, or indeed before any other court, or tribunal of the provisions of Sections 113 and 114 of Penal Code, that swearing to falsehoods is a criminal offence, and too that it is an offence to present misleading or fabricated evidence in any judicial proceedings,” added CJ.
The CJ added that Section 114 of the Penal Code states that “Any person who swears falsely or makes a false affirmation or declaration before any person authorised to administer an oath or a declaration upon a matter of public concern, and at such circumstances that the false swearing or declaration if committed in a judicial proceeding would have amounted to perjury, is guilty of a misdemeanour.”
The Judges further added that one of the most serious losses an advocate may ever suffer is the loss of trust of Judges for a long time.
Such conduct, the CJ said, amounts to interference with the proper administration of justice.
The court noted that the contents of the affidavit of John Mark Githongo, may have contained forgeries and dismissed it for not meeting the evidential threshold.They said the evidence was no more than hearsay evidence.
“No admissible evidence was presented to prove the allegation that Forms 34A were fraudulently altered by a group situated in Karen under the direction of persons named in the affidavit and video clip attached to it. In fact, his two affidavits amount to double hearsay, and incapable of being proved at each layer,” added Judges.
The Supreme Court further added that there were no significant differences captured between the Forms 34A uploaded on the Public Portal and the physical Forms 34A delivered to Bomas that would have affected the overall outcome of the Presidential Election.
According to the Judges decision, no credible evidence was presented to support the allegation that Forms 34A presented to agents differed from those uploaded to the Public Portal. The Report by the Registrar of this Court confirmed the authenticity of the original forms in the sampled polling stations.
The judges added that on the issue Form 34A for Gacharaigu Primary School which was sensationally presented by Julie Soweto, Advocate, to show that one, Jose Carmago, accessed the Result Transimission System (RTS) and interfered with the result contained therein turned out to be no more than hot air and we were taken on wild goose chase that yielded nothing of probative value.
The KIEMS kit relating to Psongoywo Primary School which bore the same serial number with another was admitted by IEBC as an inadvertent manufacturer’s error. We are also satisfied that the two kits had other identifying features that were markedly different including the time stamps and polling code. Nothing turns on that anomaly.
