Kenya presidential re-vote: highlights of closing argument for invalidating the IEBC’s second try

The good people at www.NeverAgain.co.ke have given us an edited version of the concluding argument in the Supreme Court from Julie Soweto, counsel for petitions Njonjo Mue and Khelef Khalifa: Kenya’s Supreme Court judges have a choice between upholding the beacon they raised or apologizing for doing the right thing:

We, the people, are beseeching this Court to act again in defence of the law and the Constitution. If we are to summarise our grievance in this petition, it is this, IEBC and the Chairperson of the IEBC simply do not seem to understand the Constitution and the law. Either they do not understand it, or they believe they can get away with disregarding the law.

The starting point is September 1, 2017 because that is where this Court gave its direction: Go and conduct a fresh election in strict compliance with the Constitution and the applicable law.

We are going to demonstrate that IEBC and the chairperson simply did not do this.

. . . .

Our petition rests on five limbs: the absence of universal suffrage, the environment of violence and intimidation; the independence of the electoral management body; its dishonesty and duplicity; and its failure to follow the law and its own procedures.

. . . .

Thirdly, this Court cannot avoid the reality before its eyes, which is that the IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent. Their pleadings are either similar or complementary. The affidavit of the IEBC chairman, is proof that the commission was never independent but was working overtime to please political players such as the National Super Alliance and the Jubilee Party. The internal incoherence of the commission is proof of its discordance, brought to light most dramatically by the resignation of Commissioner Roselyn Akombe.

Part of IEBC’s dysfunction is right before the Court in the form of the affidavits sworn by the vice chair on her own behalf and on behalf of five other commissioners excluding the chair. What is to be understood by this?

IEBC is wholly to blame for this state of affairs. Their own internal environment precipitated the climate of violence and intimidation.

Dr Akombe feared for her life. The Chairperson’s address on October 18, 2017 acknowledged her as “one of our brightest”. His statement show and confirm his awareness that this was no environment to hold a free, fair and credible election. This is the National Returning Officer making such statements a week to the election. Can it then be argued that his own statement did not have an effect on the conduct of the electorate? For one side, definitely, he must have affirmed and reinforced their convictions that the election was a sham. Could this damage be undone in seven days?

That damage had led to the withdrawal of a candidate, which precipitated boycotts and attendant consequences. The IEBC is squarely to blame for this state of affairs. This is the chairperson confirming the internal environment of the IEBC was discordant. At this point the damage is already done. It is too late. He confirmed that there were attempts to interfere with the commission and that there was partisanship within it.

What could he and should he have done? He could have come to this Court and presented his challenges. He came to clarify what to do about wrong numbers! How to do add numbers. If he had read and applied the Constitution holistically he could similarly have come to seek help. He did not.

Fourth, the IEBC decided what law to follow and what law to ignore. It chose to rely on the Supreme Court decision in 2013 where it provided that only the President-elect in a nullified election and the successful petitioner should contest the fresh election; but it did not want to obey the direction that one candidate abandoning the race would automatically require a new election. The IEBC printed ballot papers with Shakhalaga Khwa Jirongo’s name on the list of candidates on October 19, and then gazetted his candidature on October 24, 2017. It declared that no nominations would be conducted, when it could have declared the candidates as having been nominated by dint of the Supreme Court’s nullification of the August 8, 2017 election. It held consultations with a variety of stakeholders but neglected to inform political parties about the gazettement of returning officers.

Finally, the IEBC has been unable to tell a consistent story about the elections. The number of registered voters is a moving target. The voter turnout in the fresh presidential election changed at least three times. Voter turnout is the true north of any credible election result, and it is locked down at the close of polling. The Commission’s behaviour around the voter turnout suggests that it was fluid.

. . . .

Raila on the Kenyan elections at CSIS

Catch the webcast, live Thursday morning 9:30-11:00 EST:

“Raila Odinga on the Kenyan Elections” with Amb. Mark Bellamy at the Center for Strategic and International Studies in Washington.

The link will also take you to the video for CSIS Africa programs addressing the Kenyan election in June, July, August and September.

Meanwhile, the AP has a story out this afternoon widely re-published in American newspapers: “After Kenyan vote drama, successionist talk hits the mainstream“.

The succession concern may likely have resonance in Washington given U.S. interests, although my sense is that the economic boycotts are the most salient message in Nairobi.  During the PEV period following the corrupted 2007 election, ODM backed off on threats of such economic boycotts which seemed risky as unprecedented and perhaps perceived to be “over the top”.

Vogue gives us “Three Nairobi Fitness Excursions Prove There’s Plenty of Life Beyond the Safari” for Americans who want to play around the city after their “humanitarian” trip to Kakamega from the U.S.

And the Carter Center has released a statement on the October 26 re-vote mirroring the State Department’s call for “national dialogue”: “Repeat poll polarized Kenya: Carter Center” headlined the Daily Nation.

Update: A Thursday story in The Star reports that  “British Army may pull out of Kenya, decision by end of month“.  The issue is KDF approval for leases of private land in Laikipia, the established practice, as opposed to a restriction to using only Kenyan government property.

For a good overview, see “The Kenya Election Crisis, Explained” at UNDispatch         by Kimberly Curtis.

Must Kenyans bear a “model” cross?

In his sermon, Archbishop Welby said reconciliation was the only way that the country could retain its status as a model nation for Africa, and that disagreements can only be sorted out through understanding.

“Kenya has been a good model of peace and reconciliation across Africa,” he said. “Reconciliation is a supreme gift of Jesus, and is so costly it caused Jesus to die on the cross.”

(From the Sunday Nation, Talks in the air as Uhuru, Raila meet” featuring the visit of the Archbishop of Canterbury to Nairobi.)

As a Christian, I embrace the message of the Archbishop on the value and centrality of reconciliation for Kenyans, as for the rest of us. I am just not sure that the purpose or motivation needs to involve further taking up the burden of being a “model nation” as that term has been used. Kenyans need reconciliation among themselves, for themselves–really to become a nation in a more meaningful sense than they are now.

The history and immediate circumstances of Kenya are rather specific. The spiritual and temporal challenges of reconciliation in Kenya certainly have a fair bit in common with those faced by Americans. I am sure others elsewhere, in places that I have not lived, including in various other nations on the African continent have substantial commonality in their experiences, needs and circumstances.

It is natural–almost reflexive and inevitable perhaps–for leaders from the UK to call on Kenya’s leaders to bear the burdens of being exemplars for the region. And are Kenya’s elitemost not to able to be motivated by the extra status of ruling the country that is recognized as a sort of head boy for the whole neighborhood? To me this sort of thinking has been a fixture of Anglo American establishment orthodoxy toward Kenya and effectively served the interests of Anglo American foreign policy as the current relationships were worked out during the 1950s, ’60s and ’70s. While it has arguably worked out better in some important respects for quite a few Kenyans than many possible alternatives might have, it is decidely shopworn and insufficient now for the future.

The cross of being a “model nation” has always been in another sense the burden borne by most Kenyans in carrying on their backs in parade profoundly corrupt and frankly greedy “prefects”. Kenyans have more valid dreams than this. In reality the Kenya of Kenyatta/Moi/Kibaki/Kenyatta (and the rest of the usual immune suspects) is not something that could (or should) be replicated anywhere else, and it is not even a viable model for Kenya on into the 21st Century. There are too many more people without jobs or enough to eat, with many many more coming.

And let us be clear that a specific cost of being used as a “model” by outsiders: truth.  One of the main reasons Kenyan elections are so bad but so uniquely expensive is that we pretend that they are better than they are, to serve the idee fixe of the model.  We still cannot come to grips with talking openly among ourselves even about our role in the disaster of 2007, to go along with our role in mitigating the crisis in 2008-10.

See my post from August 2012: Didn’t we learn from the disaster in 2007? Kenya does not need to be anyone’s “model” anything; it does need truth in it’s election.

The Cold War is long over and the Anglo American orientation to Kenya as it evolved up into the 1970s might well be due for a serious refresh, especially with more aggressive Chinese and French mercantilism offering competing opportunities for Kenya’s rentier class and Western technology, along with global oil proceeds routed through the Gulf Monarchies greatly expanding the reach and toxicity of militarized jihadist ideology since the early days of al Qaeda activity in East Africa more than twenty years ago now.

Regardless, the United States and the United Kingdom are not going to be leading the reconciliation of Kenyans, much less any of the other outside influencers.  We can provide moral support or detract from opportunities by supporting an inadequate status quo.

In the case of the United States we all know enough now about Donald Trump to know that America will not have anything along the lines of foreign policy in any traditional sense during his presidency.  This means overall inertia within the military in an expanding role and within the bureaucracy in other areas in a receding role.  It also means a greater latitude for non-state actors such as the aggressively “libertarian” billionaires who helped make Trump president, such as the eccentric quant fund mogul Robert Mercer who will be of note to Kenyans through his role as an investor in Cambridge Analytica of Kenyatta’s 2013 and 2017 campaigns.

Trump has explained that it is not necessary to fill many of the policy and other positions in the State Department because he himself “is the one that matters” for policy.  Presumably in the case of a crisis in Kenya cataclysmic enough to require decisions on his part regarding U.S. policy, Trump would be inclined to rely on the Pentagon.  Otherwise perhaps he would also reach out to friends who have business interests as he referred to in his lunch with African leaders alongside the UN General Assembly.

Trump and his cronies aside, if Kenyans are able to find ways to reconcile and seek specific support from the United States, they will find many Americans including even within Congress who will wish to be of assistance for the reasons that we otherwise wish to help with the needs of Kenyans for food and medicine, for instance.

In first instance , however, Kenyans are in the same boat as everyone else and have to decide how they value reconciliation and love frankly, versus greed, power, hate, heirarchy and other alternative priorities.

Kenya cannot have a free and fair presidential election without consent of the President

This is the underlying reality that I have routinely pointed out privately as well as mentioned here.  No president in Kenya has ever lost a re-election.  Uhuru Kenyatta had a decision to make as to whether he was willing take a risk of losing at the polls or not. (In 2007 it was clear, as seen with hindsight, that Mwai Kibaki was not willing to take that risk.  He controlled the ECK accordingly.)

Peace Wall Kibera Nairobi Kenya 2008

Under the new Constitution adopted by virtue of the 2008 Post Election Violence settlement and with effectuation of some reform, the new Supreme Court to almost everyone’s surprise held its independence and applied the law to find that the IEBC did not meet the minimum requirements of the law in declaring the President re-elected without full and reliable results under required proceedures.  Even in this context the Court was careful not to blame the President or the Executive branch for the use of state resources and the underlying irregularities and illegalities that were seemingly born as orphans within the IEBC.

Since the Supreme Court’s ruling the Court and the Judiciary have been under attack from the Executive just as the IEBC has been under attack by the opposition.  On balance, the international diplomatic community re-iterated its ongoing multi-year endorsement of the IEBC, consistent with the “Preliminary Statements” of the major international election observation missions in 2013 and on August 10, 2017.  On balance, the international diplomatic community has said little about protecting and preserving the hard won independence of the Judiciary.

Today, the Supreme Court fell.  The Interior Minister signaled an intent to order that today be a public holiday (“election day eve”?) and the driver of the Deputy Chief Justice was shot while running an errand in the Justice’s car.  When the Court convened to hear and decide the urgent matter of whether the presidential election nullified from August 8 could be conducted by the IEBC tomorrow in light of the Court’s previous ruling, only the Chief Justice and one associate showed up.

With a majority of the Supreme Court “missing in action” the Chief Justice determined that no quorum existed, the hearing could not be held so that so that there is no authority to determine the law separate from the President who has declared throughout that his one “irreducible minimum” requirement is that the presidential vote be held on October 26.

Then the High Court ruled on a separate challenge—reminiscent of Judge Leonola’s ruling in 2013 on AfriCOG’s petition to enjoin the vote tally by the IEBC after the “failure” of the results transmission system—that jurisdiction to challenge actions involving the presidential election rests only at the quorumless Supreme Court.

It is clear to all that the IEBC is not ready, and belated calls have been coming to postpone the vote but the bet on the IEBC was already placed and when the diplomatic community chose to leave it down in the face of the dramatic defection of Roselyne Akombe, whose name is now usually “one commissioner”,  the game may be over on that front.

I do not assume that writ large this outcome in Kenya constitutes the fruition of or is consistently underwritten by some coherent foreign policy agenda of the United States and/or the UK or other Western countries that have supported the ECK/IIEC/IEBC over the past 15 years.  This is the third U.S. administration to be involved in this scenario and going back even through the entirety of Kenya’s history the persistent thread is that we support the President (whether we like or respect him).

Uhuru Kenyatta has specific relationships of various sorts among certain American elites, but that is a very different—and perhaps contradictory—thing from the idea that Kenyatta’s behavior supports specific foreign policy objectives of the United States.  The great strength of the United States as a relatively open, chaotic society with turnover and diffusion of power is that much of what is often seen as “policy” from more repressive vantage points is more like “stuff that happens” seen from within our system.

[Nonetheless, I will have more detailed and informed opinions about the August elections when I finally get from USAID documents I requested in 2015 about our support for the IEBC in 2013.]

 

What to do now in Kenya?

Old Party Office in Kibera

Solo 7–Kibera

Kenya’s election rerun could be a major setback for African democracy” a new Washington Post editorial was published Monday evening in the United States.  I suspect The Post here has fairly well reflected the general view of the Kenyan situation in Washington.

What to do?  I think the International Crisis Group has a long track record of assessing conflict in Kenya and offering helpful suggestions.  They did good work that I relied on in the 2008 crisis.  The Daily Nation picked up their latest recommendation here:

 

At the same time, a conflict prevention organisation, International Crisis Group, asked the Independent Electoral and Boundaries Commission to go back to the Supreme Court and seek a limited extension of timeline by 30-45 days to allow all parties to take part in the election and avert a crisis.

The group said Kenya’s political leaders should support such an extension and commit to participate.

SUPREME COURT

According to ICG, the precedent for such a delay exists.

“The High Court in 2012 delayed elections by six months, which helped ensure a credible and peaceful vote,” the group said in a statement.

“The Supreme Court should favourably consider such an extension, given the IEBC chairman’s own acknowledgement that the commission cannot guarantee a credible vote within the allotted timeline.”

The ICG said that should it grant a delay, the court ought to state clearly that President Kenyatta would remain in office pending the fresh vote and that Nasa leader Raila Odinga should take part in a delayed poll without additional conditions.

“He should renew the welcome public pledge against violence that he made on October 20.

“He also should rein in and hold accountable supporters who have attacked election officials, made inflammatory threats to disrupt election or otherwise broken the Kenyan law,” the group said.

See my post discussing the International Crisis Group’s March report on “Avoiding another electoral crisis in Kenya”.

And see “World papers and magazines to postpone repeat poll” in the Daily Nation.

Don’t be confused: preparations for Kenya’s failed August election election were controlled by Kenya’s ousted “Chickengate” IEBC and its CEO and staff with support of international “partners”

From this blog late last year:

Meanwhile, Kenya is paying an average of about $343,000.00 “severance” to each of the outgoing Independent Electoral and Boundary Commissioners for leaving earlier this fall rather than completing their terms through November 2017. No signs of accountability for the #Chickengate bribes to the IEBC by Smith & Ouzman that were prosecuted by the UK and no sign of accountability for corruption in the subsequent 2013 election technology procurements.

While the “buyout” has been negotiated, the incumbent IEBC staff without the “servered” Commission has been proceeding to undertake election preparations that will be fait accompli for the new Commission when it is appointed next year.  

Accordingly, the chief executive has proceeded to report plans to spend an astounding 30Billion KSh to conduct the 2017 general election, while setting a target of 22 million registered voters. In other words and figures, roughly $13.40US per registered voter if the target is met or $19.60US per currently registered voter. (For comparative data from places like Haiti and Bosnia,see The Ace Project data on cost of registration and elections.)

Update: see Roselyne Akombe’s interview in the Saturday Nation, Credible Oct. 26 election not possible: Akombe” 

A must read and some thoughts on context as Kenyan presidential politics continues


  1. As a necessary corrective to fatalism, start with an important piece from Patrick Gathara in today’s Washington Post:

Raila Odinga and the surprising bright side to Kenya’s never ending election.

Events of the last few days are more twists, turns and wrenching associated with Kenya’s status as being stuck or frozen by the stolen election of 2007 and its aftermath, pending forward movement to truly realize a new system under the new constitution approved overwhelmingly in 2010, or back into a now-digitized/globalized version of a single party power structure based on elite-level tribal bargains.

Based on the 2013 election and Kenyan history, in the immediate run the continued retrenchment of democracy is surely likely, but we can hope otherwise.  And most importantly, Kenyans can keep their eyes on the horizon and recognize that much of the work of getting Kenya (back?) to the state of democratic openness that was preceived to have existed in the early times after the defeat of KANU at the polls in 2002 will remain regardless of who is president.

And the vital task of acheiving a transparent and trustwothy, bona fide independent electoral commission must not stop with the immediate “fresh election” regardless of when it is or whatever limited progress is obtained through current NASA demands for “irreducible minimums”.

ODM and Wiper and other parties made a mistake by waiting until early 2016 to focus on forcing reforms of the Issaak Hassan “Chickengate” IEBC of the badly administered 2013 election.  Even though agreement was obtained to replace the Commission with loss of life of protestors killed by police by mid-2016, the old Hassan Commission stayed in control until early this year, after budgets and plans (and some contracts apparently) were in place, assistance programs by the United States and others contracted–and apparently adjusted by demand of the incumbent ruling party.

The new Commission inherited Hassan’s staff and remains quite murky as to the extent that they are de facto independent enough to effectively manage and discipline that staff.  The selection process was messy and murky and the Vice Chair of the Commission turns out not to have resigned her job with the UNDP but rather taken “leave” of undisclosed terms while serving.  Are other Commissioners of uncertain independence from other players in administration of the elections? (I am not concluding that Dr. Akombe is not independent of the UNDP–just that there are unavoidable questions which neither the UNDP nor Dr. Akombe seem willing to address–nor Kenya’s media to take up.)

No incumbent president in Kenyan history has been found by Kenya’s election management body to have lost an election–certainly the opposition has always known it had an uphill battle to have real hope of winning, aside from the fact that the incumbents have strong support in their bases and were ahead by a few points in most polls as of late July.  In this environment, the failure to achieve deeper reform of the old IEBC by early 2017 was probably fatal to a real chance to win all other things being equal.

The surprising and gutsy decision of the Supreme Court of Kenya to rule that the IEBC’s conduct was just too far beyond the pale to pass legal muster gave everyone another chance, but of course it did not change any hearts and minds of people who were never willing to risk of losing office at the polls in a free and fair vote.

The United States and other donors attracted a lot of published advice from its own employees and through indirectly supported sources like the International Crisis Group stressing the importance of transparency for trust building but elected instead to continue to stay the course of underwriting the ECK-IIEC-IEBC and publicly promoting its output to Kenyans without re-consideration of the risks and costs of non-transparency and undisclosed failures with the electoral management process, such as the alleged bribery in 2007 that warranted undisclosed US “visa bans” and the subsequent “Chickengate” bribes and the bogus procurements of technology that left Kenyans exposed again in 2013.

This is not rocket science.  Kenyans who are increasingly divided by tribalism as their politicians offer and deliver less democracy and less other models of leadership, are more likely to accept and trust what they are openly shown and explained.

Trust and Accountability”-  Africa Center for Strategic Studies scholar discusses steps to a peaceful  election.

I will be prepared to more substantively address the 2017 vote/s once I get the documents I am due and expecting from my 2015 FOIA request about the 2013 election.  Until then, we can still decide to do what we know can be most helpful to build trust if we want to.

Update: do not miss this – “Against second rate democracy in Kenya” from Aziz Rana in the Boston Review.

Western envoys in Kenya decry difficult pre-election environment, but say too late for substantial reforms, leaving no obvious way forward

[Update: Here is an Oct. 3 Daily Nation story on the status of negotiations and demands among Kenyan politicians and Western diplomats: “Envoys threaten travel bans to politicians derailing poll plans“.  The International Crisis Group meanwhile offers a good brief: “How to have a credible, peaceful presidential election in Kenya“.

The independent European Union Election Observation Mission issued a new 3 October statement saying “decisive improvements are still achievable if Kenyans come together in a constructive manner” while decrying excessive demands and proposed law changes and with confrontation from both sides.

And to refresh the memories of the envoys and candidates here are the September 14 recommendations of the European Union Election Observation Mission for reforms ahead of the election re-run.]

It is in fact very unfortunate that time has been running hard against the 60 day deadline for the “fresh election” necessitated by the failure of Kenya’s IEBC (significantly supported by the United States and, at least indirectly through the UNDP so-called “basket funding”, other donors) to conduct a lawful presidential election on August 8 as determined by the Supreme Court of Kenya.

With the passage of time things like the then-shocking torture/murder of acting IEBC ICT head on the eve of the election are no longer mentioned in such statements as today’s from the envoy group.  Too long ago that murder (passing 60 days) and with no sign of progress or serious effort to solve the case we should of course “accept and move on” that it was simply an unfortunate coincidence (or at most one of those political murders that happen periodically in Kenya that are agreed to be ignored so that we don’t have to face the darker realitity of how “democracy” really works in such a pretty country).  Of no relevance to the August 8 election or its rerun in the hands of the his suspened predecessor who got his job back when Msando was killed even though he had been earlier suspended as ICT director for refusing to cooperate in an audit.

Rather it is noted today that it is “too late” to replace staff hired under the removed Issack Hassan Chickengate regime or otherwise substantially reform the IEBC.

Longstanding CEO Ezra Chiloba doubled-down last week and signed (reportedly) a new (amendment??) with the controversially sole-sourced ICT vendor OT Morpho now owned by a US-based fund and a fund of the Government of France.  Pretty much an “in your face” gesture toward reformers if true. [Update 4/17: The IEBC twitter feed has reported that the OT Morpho contract will be released – I gather this is confirmation of the reported new agreement but we shall see.]

Either the donors have lost all significant influence, if they had any, toward transparency and trust building at the IEBC or they are really gambling hard on selling whatever the IEBC in existing form–without meaningful reform–will offer up on October 26 and the seven days thereafter.

As for me, I think this is a bad gamble, both in terms of odds and because the known character of the other players at the table.

As an American who was involved in the 2007 fiasco from part-way inside and witnessed 2013, I would like to see my Government cease to help underwrite this IEBC as a matter of our own integrity and of our long term ability to provide some future positive influence to the future development of independent democratic institutions in Kenya.

The American dollars supporting through USAID this IEBC would be much better spent on urgent humanitarian needs (see the UNDP’s call for additional funds of more than $100M for Kenya famine relief).

It may be that NASA will throw in the towel and agree to go along to run in a “not so fresh” election without IEBC reforms.  That is for NASA to decide.  I just do not want my Government to interfere in that decisionmaking process unless we are willing to provide some independent assurance of transparency and support for fairness to all Kenyans (not just NASA) that the Government of Kenya cannot be expected to agree to unless we are willing to stand up to them in a way that I have not seen from us in 2007 or 2013.

The United States and other donors to the IEBC must not let (again) the power of incumbency in Kenya obscure the dangers of “fear and loathing” on the campaign trail

This is a straightforward lesson.  We have acted in this movie in Kenya before.
(To refresh, here is my piece “The Debacle of 2007: How Kenyan politics was frozen and an election was stolen with U.S. connivance” in The Elephant.)

Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq.  This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)

We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well.  Our choices have consequences, too.

We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence.  If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.

You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income).   Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.

In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).

Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates
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Kenya’s election “compromised and contaminated” or “compromised and bungled” by IEBC finds Supreme Court

The Supreme Court of Kenya’s long awaited reading of its full opinion on the presidential election petition this morning squarely hammered the discrepancies between the process requirements of the law and what the evidence showed  happened.

The Court found explicitly, for example, that the affidavit submitted by the IEBC asserting that all of the tally papers had security features was contradicted by the documentary evidence eventually produced by the IEBC under order of the Court in the hearing.

The Judiciary website seems to have been down from before the announcement so I will have to wait to read the opinion.

The Court made clear that there would be no basis for it to uphold a similarly compromised process in a fresh election.

The ball is squarely in the “court” of the IEBC and its advocates and funders to grapple with the “contamination” and its causes to find a solution.

(On the submission of the Preliminary Statements of Election Observation Missions as evidence to bolster the defense of the IEBC, the Court said they could not be considered as they did not go beyond looking at the voting and counting at a sample of polling stations.  This is good news in correcting one of the flaws from the original 2013 presidential petition litigation.)

Update: Business Daily: “”Supreme  Court says IEBC failures led to poll nullification”.   

Globe and Mail:  “Kenyan Court blasts Election Commission as political tensions rise”