How well has IEBC complied with Supreme Court’s orders on preparedness?

IEBC chair Wafula Chebukati’s standoffishness and casual approach to implementing  Supreme Court guidance and reluctance to enforcing Chapter Six of the Constitution on ethics worrying .

By Ouma Ojango

Are you confident that the IEBC (Independent Electoral and Boundaries Commission) is going to deliver a credible election come August 9 from what you have seen so far? As a voter in this month’s General Election, what would be your answer?

Eric Latiff of KTN asked this critical question to Paul Mwangi, a legal advisor to Azimio La Umoja One Kenya Alliance presidential candidate in an interview last month. Avoiding castigating the Commission a few days to elections, Mr. Mwangi said he is concerned that the IEBC is not exhibiting preparedness – saying that IEBC chair Wafula Chebukati and his team are not going out of their way to satisfy everyone about their preparedness.

Unfortunately, but unsurprisingly, Mr. Mwangi’s sentiments seemed to speak for the majority of the Kenyan voters in the homestretch to the election. 

The same challenges that have dogged IEBC in the past, some of which being the basis for which the Supreme Court nullified the 2017 Presidential Election, continue to undermine the Commission. IEBC, it seems, didn’t around to issues to do with timely and adequate voter education and registration, procurement of services and equipment and testing of their suitability for deployment in the elections and clearing of candidates for purposes of primaries and for the final contest.

The Commission has not been proactive in enforcing Chapter Six of the Constitution that seeks to raise the bar on ethics and integrity for public officers. It has, in total disregard of the Ethics and Anti-Corruption Commission (EACC) advisory, gone ahead to clear candidates who are subject to corruption and criminal investigations and some who are already convicted on the same but only out on bond and pursuing appeals. 

It hasn’t also applied standard rules on dealing with candidates who have presented fake academic papers for purposes of clearance to contest in the elections. In some cases, the Commission has been candid and barred candidates with questionable academic papers yet in some, it has feigned lack of jurisdiction, unbelievably displaying a bias that has left egg on its face.

A few days to elections however, some worrisome issues stick out: one, whether the Commission will, as per the law, deploy a manual register in all polling stations as a complimentary mechanism to the electronic process of voter identification; two, how to address a scenario, as was canvassed in the Supreme Court in Petition No. 1 of 2017 where Presidential election votes, for instance, are exceedingly more than for the other elections in a polling station with no evidence of the unmarked ballots for the others and lastly, how Kenyans will follow presidential elections as they unfold.

Section 44(A) of the Elections Act 2011 states that IEBC shall put in place a complementary mechanism for identification of voters and transmission of election results. This would be complement an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results as stated in Section 44.

The Commission has however remained dodgy on whether it will deploy a manual register in compliance with this legal requirement, insisting that there will be several KIEMS (Kenya Integrated Elections Management) kits so that if one fails for a reason or the other, another would be deployed. At the time of press, Chebukati and his CEO Marjan Hussein Marjan were non-committal when they faced a joint media panel for a live interview on election preparedness at the Bomas of Kenya. Neither did the Commission yield much in panel discussions at the recently concluded National Election Conference at the Kenya International Convention Centre on the nagging question of deployment of a manual register.

Section 44(A) in its totality is explicit that “Notwithstanding the provisions of … section 44, the Commission shall put in place a complementary mechanism for identification of voters and transmission of election results…” Could that have meant a similar form as a complimentary mechanism?

IEBC was put to task in the Supreme Court in the Presidential Petition in 2017 on how presidential votes in a polling station could be exceedingly more than votes in other elections including for gubernatorial or parliamentary elections. In particular, the court wanted to know how IEBC accounted for the ballot papers for the other elections as a prospective voter is, on entering a polling station, by law given all six ballot papers for all the elections including for Presidential, Gubernatorial, Senatorial and for National Assembly, Woman Representative and Member of County Assembly.

The Commission’s legal team was never able to explain itself out of this situation, which left a majority of the judges to conclude that either ballot boxes were stuffed or numbers for Presidential Election in some polling stations were exaggerated, substantially forming the reason for voiding of the Presidential Election.

It is possible that a voter can walk into a polling station and decide to only vote for the President, or Governor or Member of Parliament. IEBC needs to have by now come up with regulations and sensitized the electorate on the same on how the presiding officers will deal with the unused ballots in this case, which are neither spoilt nor stray, so that they can be accounted for.

Lastly, for the first time, the Commission has allowed media houses and political parties to access polling stations and tally presidential results as they are announced. Chebukati revealed this at the joint media interview with the Commission. Previously, this has been restricted only to the Commission. It is remembered that in the last General Election, the police raided the Opposition’s tallying centre and destroyed equipment in a bid to gag it from counter-announcing Presidential Election results. Media houses have too, never been allowed to announce
their tallies. 

Now that the IEBC Chair has pronounced himself on this controversial issue, what are the modalities of how the media houses and political parties will use the tallies? Yes, Mr Chebukati insists it is his reserve as the National Returning Officer to announce the presidential results. Will, for instance, media houses be allowed to project parallel results to IEBC’s? If that be the case, what happens where projections of a media house differ from that of the IEBC? Are political parties free to use their tallies as they wish?

There’s a high potential for this leeway to be exploited in a manner that may be counterproductive in the high stakes elections. Political parties, if allowed to publish their tallies may seize the opportunity, especially with liberated social media tools, to use it as a propaganda tool with possible devastating consequences. IEBC needs, as a matter of urgency, to work on guidelines on how this freedom will be used by the media and political parties.  (