The electoral agency has left Kenyans asking hard questions over the level of preparedness as several issues remain unclear and unresolved, just slightly more than a month to the polls.
At the same time, the Court of Appeal this week more or less gave politicians a license to misbehave during the campaign period after it set November 4 for the judgment on an appeal on the enforcement of the Electoral Code of Conduct. It will now be left to the police and the Director of Public Prosecutions to handle such complaints, an arrangement experts say is not effective.
Claims of a worrying level of opaqueness have given room to speculation about several aspects of the elections, particularly on technology, the register, printing of ballot papers and statutory forms and aspersions being cast on the appointment of county and constituency returning officers.
Despite recent public announcements and meetings with stakeholders to address some of the issues, the Independent Electoral and Boundaries Commission (IEBC) still faces tough questions. The recent court order on the enforcement of the Electoral Code of Conduct tied IEBC’s hands but licensed politicians to misbehave on the campaign trail without any fear of repercussions. The court order directed that any offences against the code should be referred to the Office of the Director of Public Prosecutions, which will cause investigations and prosecution if necessary, at the magistrate’s court.
“In the premises, and as provided by Section 21 of the Election Offences Act, it is only the Office of the Director of Public prosecutions (ODPP) that has the power to order investigations and to prosecute offences under the Act,” IEBC chairman Wafula Chebukati said following the violence at Jacaranda Grounds, Nairobi, last month.
The DPP is yet to take any action on the chaos that occurred at Jacaranda Grounds, Marsabit and Mandera, which could embolden offenders, who are almost certain to be on the ballot as the alternative route of investigation and punishment is likely to drag on
A decision on the appeal that IEBC filed has been set for November 4, several months after the elections would have been concluded.
In addition, unlike in the run-up to the 2017 elections when the IEBC readily published the independent audit of the register of voters report, this time the commission has declined to do so. Instead, it has only given a brief on some of the findings at a press event on June 20.
“We have always asked the commission for the report but there is no commitment from their end. We as parties asked for the report when it was handed over to the commission by KPMG at Bomas, but they said they will first submit it to Parliament. Every meeting we have had with the commission, we have asked to be given the report,” says Paul Mwangi, the legal advisor to Azimio presidential candidate Raila Odinga
“United Democratic Alliance (UDA) has requested for the (audit) report. We are yet to get a response. It is our right to get the report as per Article 35 of the constitution of Kenya, which establishes the right to information. In the alternative, IEBC should publish the report and make it available for everyone,” said Mr Irungu Kang'ata.
It turns out that even some IEBC staff are yet to see the report, which one insider said is “under lock and key”, with only the chairman and CEO Hussein Marjan having access to it.
When releasing the summary of the findings, Mr Chebukati said they were doing so “in the spirit of transparency and commitment to public confidence in the ROV (register of voters) and electoral processes…”
“In accordance with the Elections Act, the commission will also submit the report to the National Assembly and the Senate,” Mr Chebukati said.
Since then, IEBC’s explanation when asked about the full report has been that they have already submitted it to Parliament, which adjourned for the elections several weeks ago, even as pressure grows from political parties and the media for the full report to be published.
Frankline Mukwanja, the Executive Director of the Centre for Multiparty Democracy (CMD-Kenya) recently accused the commission of being aloof and communicating so little to the public.
“I think the most important thing about IEBC is that they should improve on apprising everyone about their preparedness and their challenges on the questions of technology, voter register audit, and vetting of candidates among others. You can judge them as less prepared or aloof wrongly when they could easily correct that by just being more communicative so that we can assess that level of preparedness and also appreciate the challenges,” said Mr Mukwanja.
That real or perceived aloofness has given room to speculation and leakages from the commission as stakeholders look for alternative ways to get information
For instance, there have been various claims around the technology procured from Smartmatic which replaced Idemia: whether data was transferred from Idemia to Smartmatic and how, claims that the new system is rejecting passport numbers for those who registered using the all-important travel document, and uncertainty over the capacity of the Greek company Inform Lykos which has been contracted by the commission to print ballot papers and statutory forms.
Azimio la Umoja One Kenya Coalition has demanded that IEBC facilitates travel to Greece by representatives of political parties to monitor the printing of the papers, a sign that they don’t fully trust what the commission has told them regarding the contract with Inform Lykos. In a recent meeting with presidential candidates, IEBC gave details on the company and indicated it was ready to organise a visit to its facilities.
Then there is the issue of which register to use. All parties agree that the electronic register should be the primary register. IEBC wanted the electronic register to be the only one.
“The electronic register will be the primary document that we shall use but we are also saying that we shall provide the physical register which would be used as a last resort,” Mr Marjan said.
It is supported on this by Kenya Kwanza Alliance while Azimio wants the physical register to complement the electronic register when the technology fails in certain circumstances. At the meeting with the presidential candidates and their representatives, the takeaway was that the commission will abide by the interim orders of the court to use the physical register as a complementary system awaiting the final determination of a case that is currently pending in court.
Even then, Kenya Kwanza and Azimio have continued to engage on the issue of which register to use. Dr Ruto’s running mate, Rigathi Gachagua yesterday told the Sunday Nation that the many questions about the mode of voting by Azimio were a sign of panic. “Our team is ready on all fronts and in a matter of 38 days, this matter will be sorted once and for all,” he said.
Mr Gachagua stated that the statistics did not favour Azimio and it would be in their interest to push for some opaque voting system to manipulate the situation.
“The situation is bad for them. All their traditional bases like Coast, Western and Ukambani have shifted in our favour. They have all the reasons to look for scapegoats in the voting system,” he added.
But Azimio’s ICT chief, Mr George Njoroge, the chief executive officer (CEO) and the managing director of East African Data Handlers, argues that the push to solely rely on the electronic register puts some 2.3 million votes at risk. “There are 1,111 non-connected polling centres, each stream is of 700 voters. If each of the dark sites has one stream, this is 777,700 voters. If they have three, it's approximately 2.3 million voters in dark sites we have no visibility of,” he says.
He says that their worry is a situation where those who cannot find themselves in the electronic register yet are valid voters will be turned away unless there will be a complementary method of identifying them.
“This flies in the face of article 86 (a) of the 2010 constitution which states that at every election the commission shall ensure that whatever voting method is used,” said Mr Njoroge.
