Chief Justice Martha Koome has asked the Independent Electoral and Boundaries Commission to show proof that it has addressed the integrity issues that were raised by the Supreme Court when it nullified the presidential election in 2017.
The CJ on Friday said the Wafula Chebukati-led commission had yet to show that it had addressed the concerns raised by the apex court barely two months to the polls. She added that failure to demonstrate could have implications in the integrity of the upcoming election.
Speaking during a breakfast meeting with editors in Nairobi, the CJ said the Supreme Court in 2017 was categorical that the IEBC had failed to conduct the presidential election in line with the Constitution. As such, the CJ said the commission had a responsibility to show the court and the country that it had indeed dealt with the concerns before presiding over the next polls.
“The Supreme Court did not find any evidence of misconduct by the candidates but instead saw in evidence, a systemic institutional problem. More specifically, IEBC failed to ensure that the process of ‘transmission and declaration of results’ of the presidential election was verifiable as stipulated by the Constitution.
“The court specified that IEBC, while discharging its constitutional mandate, must always conform to the Constitution and electoral law by ensuring that all requisite processes are simple, accurate, verifiable, secure, accountable and transparent,” she said.
While nullifying the presidential election in 2017, the Supreme Court, then led by retired Chief Justice David Maraga, said the IEBC had failed to conduct the presidential election in a manner consistent with the dictates of the Constitution. The court said the commission had also committed irregularities in the transmission of results.
In effect, the IEBC was criticised by the court and advised to, among other things, address the illegalities that affected the process leading to the declaration of President Uhuru Kenyatta as president-elect. The court also advised IEBC to do “a soul-searching and go back to the drawing board”. The judges added that “If not, this court, whenever called upon to adjudicate on a similar dispute will reach the same decision if the anomalies remain the same, irrespective of who the aspirants may be. Consistency and fidelity to the Constitution is a non-wavering commitment this court makes.”
In 2017, one of the most glaring irregularities was the deployment by the IEBC of prescribed forms that either lacked or had different security features. A scrutiny ordered and conducted by the court brought to the fore momentous disclosures. For instance, it was discovered that of the 290 Forms 34B that were used to declare the final results, 56 had no security features.
The court questioned where the security features touted by the IEBC disappeared to and whether the critical documents could still be considered genuine.
The court said the documents could have been forgeries introduced into the vote tabulation process and could have had impact to the numbers.
CJ Koome yesterday termed it the expectation of the Judiciary that IEBC is working to ensure its processes meet the demands of the principles of the electoral system as stipulated in Articles 81 and 86 of the Constitution. “We also expect IEBC to have worked or to be working with stakeholders to consolidate the progress made in integration of technology to manage election day activities and management of results.”
“There should be clear steps to address some of the challenges in integration of technology in voter identification and transmission of results. These will help address some of the challenges identified in the last two election cycles,” she said.
The CJ further asked the commission to also address some of the disputes that were arising from the audit of the voter register ahead of the polls.
She said that the Judiciary was prepared and ready to address all disputes that were arising from the ongoing clearance of candidates by the IEBC, and that some 120 judges had been gazetted to deal with all electoral disputes.
“I also want to emphasise that it is important that all the processes running to the election day that include voter registration, transfer of voters, verification, certification and publication of the register of voters should be done in a manner that promotes and ensures the complete and accurate franchise of eligible voters,” the CJ said.
