Back in February 2013 The Africa Report ran a feature entitled “Can Kenya’s judiciary and election commission pull it off?” on readiness for the general election on that March 4. In a blog post from that April after the Supreme Court upheld the election I discussed Hon. Willie Mutunga’s “judicial philosophy” in the context of what he had had conveyed in that Africa Report just before the vote.

With this year’s Supreme Court decision annulling the August 8 presidential vote with Paul Muite, one of Kenya’s most prominent lawyers–and sometimes “Central Province” politician and official–representing the Election Commission (IEBC) I thought it was worthwhile to highlight his pre-election integrity concerns when he was not litigating:

There is, however, nervousness about how the IEBC will fare.

Led by Ahmed Issack Hassan, the IEBC has enjoyed public confidence since August 2010 when it ran the referendum on the new constitution.

It then held several by-elections with textbook efficiency.

But troubles began last year over a tender for biometric voter registration kits.

After anomalies were exposed, the government intervened and awarded the tender to France’s Safran Morpho at almost double the stipulated cost.

The delayed voter registration was com- pressed to one month instead of three.

James Oswago, the IEBC chief executive, says it is absolutely committed to transparency: “In fact, I am not aware of any public procurement officer who has referred a controversial process to the government for arbitration. I did. You have not heard anybody going to court for corruption linked to this process.”

Unlike the old Electoral Commission of Kenya, whose top officials were in the president’s gift, the IEBC has nine one-term commissioners including Oswago, who acts as secretary to the board.

Each commissioner was selected after consultations between President Kibaki and Prime Minister Odinga, the two main rivals in the 2007 election, and then vetted by parliament.

“We have in place structures that invalidate a discretionary announcement – a rigged vote. You can accuse the commission of inefficiency or of lateness and so on, but not of rigging,” Oswago says confidently.

INTEGRITY QUESTIONS

But Paul Muite, a lawyer who is contesting the presidency himself, does not share such certainty: “The IEBC is not inspiring confidence. I am not sure that they have the capacity or political will to conduct credible elections.

“There are integrity questions regarding some commissioners […] the composition of the commissioners was motivated not by merit but by the coalition government’s need for ethnic and regional balance.”

Similarly, a report by South Consulting, which has been monitoring the coalition government for the Panel of Eminent African Personalities led by former United Nations secretary general Kofi Annan, raised questions about the IEBC’s capacity.

It questioned its capacity to act decisively on electoral disputes and pointed to its inability to censure rogue parties and politicians during the chaotic party primaries in January.

In January, the IEBC vetted and registered eight presidential candidates, rejecting two on technical grounds.

Among those approved was Uhuru Kenyatta, although he was facing a local case challenging his candidature on integrity grounds.

The case is unlikely to be decided before the presidential elections.

It seems the IEBC did not want to prejudge it, so was happy to let the courts decide.

Pressure is certain to build on the new and inexperienced IEBC as elections approach and then again in likely second round elections.

The courts, determined to uphold their independence, will probably act as a buffer against violent street protests.

The police force, overstretched as it is and caught in a maelstrom of reform, resistance and warring political factions, may not.

Voters may find themselves caught between these two institutions●

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