So we are down to the hearing of the challenge to the presidential election involving some ten to twelve million voters in a country of over forty million. All of the voting was done by paper ballot and counting by hand. At the time of the hearing there is no list available to the petitioners or the court of who did and did not vote, nor one defined list of who was eligible as a voter.
Even with the breakdown of the intended election technology across the board, the IEBC announced a final vote count on the evening of March 8, just over three days after completion of the voting, in spite of having seven days available for the process, then formalized the result the next day, March 9.
It now comes down to one day of oral argument on each side in an adversarial proceeding between the IEBC represented by government counsel and AfriCOG and CORD for the Supreme Court to decide whether to let the IEBC pronouncement stand, or not.
There has been no administrative process or review, there has been no neutral body involved prior to the Supreme Court. The IEBC has been in an adversarial mode in defending its decision since the decision was made. The Court has determined that there is no time for detailed discovery of evidence sought by petitioners.
The Court will ultimately have to decide this case on the basis of generalities–either recognizing the standards required by the Constitution for voting were not met systemically:
Article 86:
At every election, the Independent Electoral and Boundaries Commission shall ensure that—
(a) whatever voting method is used, the system is simple,
accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results
announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and
accurately collated and promptly announced by the
returning officer; and
(d) appropriate structures and mechanisms to eliminate
electoral malpractice are put in place, including the
safekeeping of election materials.
or, alternatively, the Court will defer to the the IEBC on the basis that its decision is unimpeachable except to the extent that it can be disproven vote by vote in detail through admissible evidence in adversarial litigation in one day.
Related articles
- Why would we trust the Kenyan IEBC vote tally when they engaged in fraudulent procurement practices for key technology? (africommons.com)
- AfriCOG’s vital role as Petioner 4 challenging the Kenya’s IEBC (africommons.com)
- Was Kenya’s “Election Observation Group” or ELOG intended to be truly independent of IEBC? Or was it to “build confidence”? (africommons.com)
Two hours or so until the Supreme Court rules on the election petitions. The CBD resembles seems to be under a state of siege. Regardless of outcome an informed observer can only conclude that this election has been a profound failure and casts doubt on Kenya’s short to medium term economic growth and political stability. The anti- cord position is simply to concede failure, ignore reality and get big “A’s” for effort; just move on because the alternative is too expensive, too time consuming and too fraught with danger!
Western countries are also waiting for the judgements and will undoubtedly praise the court process for maintaining peace and avoiding the PEV of the last elections; Kenya is not however a post-conflict state emerging from years and years of brutal civil war or genocidal violence!
Even the atmosphere in the CBD could have been avoided but my written comments and recommendations to all and sundry have been ignored for nearly two months. The police Ned not appear menacing nor should they all be carrying assault rifles and wearing helmets; their seemingly overwhelming presence provides only an illusion of security. How can the security forces react to situations when they have already shot their bolts?
Thanks, Andrew.
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