Unanswered questions about the Kenyan presidential election

The introduction of biometric voter identification and results transmission systems by the Independent Electoral and Boundaries Commission (IEBC) was a stipulation of the election act that was meant to ease the problems associated with the manual voter registration and tallying after the Krigler report of 2007 election faulted the manual system as unreliable for fair electioneering in Kenya.

At a cost of 6 billion shillings, the IEBC introduced the biometric voters register and electronic tallying systems with scanners and computers in all the 33,000 polling stations to verify the voters and protect the tallying process from tampering.

To further cure the mischief of rigging and entrench transparency in the voting, the election law established a procedure that when polling stations close, ballots are counted and verified by presiding officers and political party agents, and the results are posted publicly on the door of the polling stream. These results from each polling station are thereafter transmitted electronically to the national elections tallying centre in Nairobi so that they can be announced as provisional results by the IEBC, pending certified verification from the constituency returning officers and political party agents. Such a system was aimed at ensuring accountability, transparency, public participation and confidence in the IEBC by the voting public and electoral competitors.

The procedural duty of the IEBC to announce and post provisional results electronically was breached. On the voting day, there was an almost 80% systematic failure of technology employed by IEBC to identify voters and upon completion of voting, electronic transmission of results failed and was halted. IEBC admitted fault and blamed a computer bug that was multiplying only rejected votes by eight but claimed no other votes had been multiplied or reduced by this bug.

The causes and nature of this failure have not been disclosed to the public and no official audit report has been offered so far despite this transmission being required by law and being the primary check to entrench integrity in the election process.

Within such a context of procedural fault, fears that the digital system might have been tampered with grew. One of the presidential aspirants in this election has since rejected the results, stating that the level of the failures in the system made it very difficult to believe that the results were credible.

Further, there are allegations by the Coalition for Reforms and Democracy (CORD) presidential aspirant that IEBC ejected their agents from the tallying room as part of the scheme to manipulate the results. This allegation in essence defied the principles of public participation, transparency, integrity and accountability as espoused by article 10 of the Constitution of Kenya, 2010.

CORD also alleges that in over 30 constituencies, voter turnout was either over one hundred or results were adjusted to give the Jubilee candidate, Mr. Uhuru, undue advantage.

We must be conscious as a nation that we passed a constitution and new electoral laws that provide for electoral justice through the Supreme Court should any presidential contender in election claim unfairness in the electoral process. Every candidate has the right to exercise this provision should he/she be unsatisfied with the handling of the election by the IEBC.

That is why CORD has cause to move to the Supreme Court to lodge their case, in which they are seeking to have Uhuru’s declaration as president-elect nullified on grounds of anomalies that marred the poling and vote tallying exercises.

The Supreme Court will have an opportunity to audit the election process to determine if the IEBC violated the law when the electronic voter identification devices failed and it resorted to using the manual register to identify voters, and if the collapse of the electronic voter tallying too was a negation of the elections act.

The IEBC is on record admitting that their systems had failed due to technical problems. During the voting day and pursuant five day of waiting as votes were being tallied, virtually every electronic instrument the IEBC had deployed for the election—the poll books, the servers, the telephonic transmission, the BVID—all failed despite the billions spent on acquiring them. The Supreme Court will have an opportunity to hold IEBC accountable to tax payers for this waste and hold a candle to whether the IEBC satisfied article 81(e) of the constitution, which requires it to administer the elections in an accurate, accountable and impartial manner.

CORD’s Odinga and his supporters therefore have legitimate questions that have to be answered before this election can be accepted. Granted that Mr. Kenyatta may in fact have won the election according to the IEBC official tally, but that hasn't been demonstrated to supporters of Odinga or to logical people watching the election.

It is important to underscore that the law is concerned with both procedure and outcome. With such obvious procedural glitches, the Supreme Court must audit the procedure followed by the IEBC to determine whether the result announced by the Independent Electoral and Boundaries Commission is lawful.

Such an audit is in line with the tenets of democracy where independent institutions such as the IEBC and judiciary check and balance each other to ensure fairness in electoral governance; it is no way a usurpation of the independence of the IEBC, nor is it a threat to the will of the people of Kenya. It is in every way a commitment to the rule of law, to justice and to fair governance of elections.

The people of Kenya need also to understand that CORD's court action is not against the Jubilee coalition but against IEBC. Further, this court case is not just about Raila's quest for presidency, but it's good for the country in general that IEBC is held to account on allegations raised. Your candidate might have benefited from IEBC's weaknesses but remember tomorrow it could be your candidate who is disenfranchised due to these kinds of anomalies. The Supreme Court will help audit the election process and deliver the right and final way forward. The audit will help all of us, both the winner and the losers.

We must also remember that the Judiciary is also a feature of our democracy which most of the winners are citing in dissuasion against CORD’s court action. Let us also bear in mind what precedent we are setting for future elections should the due process in elections not be followed. Mr. Odinga has every right to pursue judicial redress and those calling against his action are causing more worry to our national values and consensus that electoral disputes will be vindicated in court.

As the former chair of the KNCHR, Maina Kiai, posed in one of the dailies, ’are all these errors deliberate? And even if not, if this was a doctor treating a patient would this not be sufficient evidence of malpractice? And do they sufficiently impugn the credibility of this election?’

* Ann Njogu and Eric Gitari are human rights lawyers and activists. This article was first published by Identity Kenya.