Order on election servers throws Raila and Ruto talks into a spin

The order is a major blow to Raila as it now forestalls his quest to have an audit of the August 8, 2022 election. It is also likely to spark another round of sour relations between the government and the opposition. [PSCU]

Court has slammed brakes on a report by teams set up by President William Ruto and opposition leader Raila Odinga, putting the truce between the two in jeopardy.

The basis of the report was scrutiny of election servers, the reconstitution of a panel to select Independent Electoral and Boundaries Commission (IEBC) officials among others.

Court has now stopped parliament from either discussing or adopting the National Dialogue Committee (Nacdo)’s recommendation for the IEBC to open its election servers for scrutiny.

This is the second blow after High court in January ordered the team appointed by Ruto to conclude the recruitment of IEBC commissioners.

However, with the two demands by Raila in exchange for calling off the street protests dimmed and uncertain, the center that held the two leaders together could crumble.

Raila, the Azimio la Umoja One Kenya Coalition party leader, called off street protests on condition that there will be an audit of the last general election.

At the same time, Ruto yielded and softened his stand on the appointment of Independent Electoral and Boundaries Commission (IEBC).

However, the orders by Justice Dola Chepkwony has stopped the implementation of the National Dialogue Committee's (Nacdo) recommendation for the IEBC to open the servers.

In the meantime, High Court Judge Mugure Thande in January this year watered down the bipartisan talks and directed that the team appointed by Dr. Ruto to finalize the appointment of the commissioners.

The order by Justice Chepkwony is a major blow to Raila as it now forestalls his quest to have an audit of the August 8, 2022 election.

At the same time, it is likely to spark another round of sour relations between the government and the opposition.

In the case filed by Francis Muruthi Ndegwa, Justice Chepkwony ordered that Parliament should not sit to discuss or adopt para 203 to 263 of the Nadco report on auditing the 2022 presidential election until the hearing and determination of the application.

At the same time, she ordered that National Assembly and Senate cannot implement the recommendations on the audit and further barred the clerks of the two houses from processing the part on the audit.

“The application be and is hereby certified as urgent. The application be and is hereby allowed in terms of prayers (2), (3), and (4) thereof pending the inter-parties hearing on April 16, 2024,” ruled Justice Chepkwony on Thursday.

When President Ruto sat with Raila, perhaps his hope was to have a quiet time to implement his agenda.

The give and take was to avert years of skirmishes and little progress owing to election differences.

However, he now finds himself in the same waters that his former boss, retired President Uhuru Kenyatta was in with the Building Bridges initiative (BBI).

The test will be whether the document that he alongside the main proponent of the BBI will pass the court’s scrutiny.

In the case, Muruthi claimed the Supreme Court scrutinized the servers and found that Ruto had won.

He asserted that re-opening the servers for scrutiny would amount to a waste of time and money as no outcome can change or alter the apex court’s findings.

Muruthi wants the court to expunge the entire section that requires an audit.

“Therefore, the presentation of the report as is, from the first respondent to the second respondent (Parliament and Nadco) poses a direct challenge to the rule of law in Kenya as it seeks to conduct an election audit outside the constitutional framework. The said audit deviates from established procedures, creating uncertainty and negatively impacting electoral preparations, reforms, and voter education,” he argued.

In January this year, Justice Mugure dismissed bipartisan talks on expansion of the selection panel and reconstitution of IEBC for lack of constitutional and legal backing.

Justice Thande Mugure ruled that the strict timelines to recruit the commissioners, by elections and boundairies review cannot wait anymore for politicians to agree.

She directed the current panel to immediately continue with the recruitment of a new chair and six commissioners to avert a constitutional crisis.

Mugure observed that although the reconstitution of the IEBC is a political process, the prolonged stalemate between President Ruto and Raila factions has in turn halted IEBC functions.

Ruto was in favour of the current panel chaired by Dr Nelson Makanda. However, Raila in his raft of demands to cease Azimio protests required political parties to have a say in the selection of the panel.

The panelists are drawn from the Public Service Commission, Political Parties Liaison Committee, Law Society of Kenya, Parliamentary Service Commission and Inter-Religious Council of Kenya.

Other members are Novince Eurakia Atieno, Charity S. Kisuitu, Bethuel Sugut, Evans Misati James, Fatuma Saman and Benson Ngugi.

According to Justice Thande, the law requires the commission to conduct by-elections within 90 days after a seat falls vacant.

However, the Judge observed that constituents such as those Banissa have no representatives in Parliament after the death of their former MP Kullow Maalim in March last year.

At the same time, she said, the deadline to review constituency boundaries will lapse at the end of this month but nothing seems to be moving from the panel’s side.

“I respectfully reject the notion that the political question doctrine should override the very explicit constitutional provisions and that the prevailing circumstances should be allowed to continue to threaten and infringe on rights guaranteed by the Constitution. As such, compliance with the constitution should not be suspended for the sake of political expediency,” said Justice Mugure.

In addition, Justice Mugure was of the view that although the commission’s recruitment process was halted to pave way for by-partisan talks between Kenya Kwanza and Azimio la Umoja, the deadlines set by the constitution supersede the truce being sought.

The Judge ruled that ordering for recruitment of IEBC chair and commissioners was justified as the talks are not anchored on the constitution.

“The holding of by-elections in Banissa constituency is a constitutional process with strict timelines. Similarly, the review of the names and boundaries of electoral units has strict timelines.”

“Given that the deadline for the said review is looming, the threat of violation of the provisions of Article 89 of the Constitution is very real. Additionally, the establishment and functions, composition, appointment and terms of office of commissioners of the IEBC is stipulated in the Constitution."

"As such, compliance with the Constitution should not be suspended for the sake of political expediency. The intervention of this Court is therefore justified, more so, because the bi-partisan talks are, to the best of my knowledge, not anchored in either the Constitution or the law.,” she added.

IEBC is required to review the names and boundaries of constituencies at intervals of not less than 8 years, and not more than 12 years.

Any review must however be completed at least 12 months before a general election of Members of Parliament.

The last review was done in March 2012. Therefore, the next ought to be conducted and concluded by February 2024.

The case was filed by Adan Mohammed who argued that failure to conduct the recruitment in time had in turn violated the rights of those who needed to do a by-election and affected the timelines for boundaries review.

In his case, he sued the Attorney General (AG), the selection panel and Parliamentary Service Commission (PSC).

The AG filed grounds of opposition but later withdrew them stating that he would address issues of law in his submissions. However, the court observed he never filed the same.

**The court has stopped parliament from either discussing or adopting Nacdo’s recommendation for the IEBC to open its election servers for scrutiny.**

The panel on the other hand stated that the High Court had no powers to intervene in a political process, a position that was taken by National Assembly.

IEBC however supported the case arguing that lack of quorum had hampered with its operations. It stated that it could not conduct by-elections, or review boundaries.

After being sworn in on March 3 last year, the panel commenced the recruitment process.

They advertised and called for applications to be received by on 28th of the same month. The exercise has however not been completed.

The section panel was supposed to call for applications, conduct interviews and forward the names of shortlisted candidates for the IEBC jobs to the President.

The president then nominates them before forwarding their names to the National Assembly for vetting and then successful ones are appointed.

The fate of the panel however lay in a limbo after it stopped working following an agreement between Azimio and Kenya Kwanza.

In his opposition to the panel carrying out its duties, Azimio leader Raila said its appointment was skewed in President Ruto’s favour.

The two coalitions settled for talks in the first round that failed and one of the demands that Azimio had to the National Dialogue Committee was fresh reforms in the IEBC secretariat.

Then the second round of talks saw the formation of a dialogue committee Wiper party leader Kalonzo Musyoka and National Assembly Majority leader and Kikuyu MP Kimani Ichung’wa serving as co-chairs.

The committee agreed to prioritize IEBC restructuring and an audit of the 2022 Presidential election results.

The dialogue committee agreed to pause the work of the panel to give the talks a chance since reconstituting it was one of the issues to be addressed.

Before stopping its work, the selection panel’s chairperson Makanda told the media they received 925 applications for the commissioners’ posts before the deadline.

Of these, the chairperson's post attracted 25 applications while the remaining 900 were for the six commissioners' posts.

The law provides for the process of recruiting the selection but Odinga wanted all political parties included in the process of selecting members of the panel.

IEBC was left without commissioners after the chairperson Wafula Chubakati, Boya Molu and Professor Abdi Guliye all retired.

The remaining commissioners Juliana Cherera, Justus Nyang’aya and Francis Wanderi resigned after President Ruto appointed a tribunal to investigate their conduct in the contested 2022 presidential elections.

Irene Masit chose to go to the tribunal hearing which recommended for her removal with President Ruto firing her.