Kriegler piles pressure on Kivuitu team

By Oscar Obonyo

The Electoral Commission of Kenya (ECK) is at the centre of renewed attention as the team probing the conduct of last year’s election prepares to wind up. In one of its last-minute assignments that have included a meeting with the President and ECK commissioners, South African Judge Johann Kriegler, who is chairing the inquiry, returned a harsh but firm observation — the electoral system is flawed.

“It’s quite unfortunate that the country’s electoral systems are getting worse by the day. In fact, the 1992 elections were better organised than 2007,” he told commissioners led by vice-chairman Kihara Mutu when they presented proposals to reform the commission on Monday.

Another development on that day put ECK even under closer scrutiny. A senior official at the commission, Ms Priscilla Wamiru, declared Party of National Unity’s (PNU) Samuel Mbugua MP-elect of Nairobi’s Kamukunji constituency, attracting immediate protests from ODM.

“The court ordered for a re-tallying, but instead the Returning Officer pronounced a winner. Re-tallying could not have been done without use of Form 16A, which the ECK officials have confessed in a sworn affidavit —a copy of which is in our possession — went missing,” Nominated MP Rachel Shebesh told The Standard On Sunday.

With the absence of Form 16A, the ECK official’s dilemma was indeed understandable. Re-tallying was not foreseeable and that probably explains her argument that a winner had long been determined last year, “but an announcement was not made owing to chaos in the counting hall.”

Kamukunji is just one of the trouble spots where the electoral body registered history by failing to return parliamentary results in three constituencies. The others are Kilgoris in Rift Valley, which, like Kamukunji, was riddled with confusion, and Wajir North where two contestants tied on votes.

But the situation was more chaotic at the presidential level and two latest crucial reports have published findings on what happened and ECK’s role in the circus.

“There is agreement among most analysts that the violence that swept through Kenya following the disputed December 2007 elections was a consequence of the flawed tallying process, as well as underlying issues predating the 2007 elections,” states the Kenya National Commission on Human Rights in a report titled, On The Brink of The Precipice: A Human Rights Account Of Kenya’s Post-2007 Election Violence.

The Human Rights Watch, in an earlier report of March 2008 titled Ballots to Bullets: The Hijacking of Kenya’s 2007 Presidential Poll, is more categorical.

Cause of violence

“While it is true that the post-election violence in Kenya has deep-seated roots, the immediate trigger for the violence was the rigging of the election,” states the 70-page report.

The study says the most damaging acts of fraud were committed during the final stages of tallying the presidential results when the ECK presided over “what was by all appearances a desperate last-minute attempt to rig the contest in favour of incumbent Mwai Kibaki.”

“In the closing hours of the tabulation process a lead of over one million votes for opposition candidate Raila Odinga evaporated under opaque and highly irregular proceedings and was transformed into a razor-thin margin of victory for Mr. Kibaki. The result was also entirely at odds with the Orange Democratic Movement’s successes in the parliamentary vote in which ODM won 99 seats to PNU’s 43,” it adds.

lost face

But it is ECK chairman Samuel Kivuitu’s damning confession that he announced presidential results under pressure from vested interests that completely eroded the credibility in the institution.

The two studies further point out that Kivuitu’s casual statements that he could not reach some of his returning officers and his speculation that they were probably “cooking results”, irreparably damaged any confidence left in those who feared rigging may have taken place. What’s surprising is that the question of rigging—which primarily triggered the chaos—has hardly featured. Focus has been more on who sponsored the chaos and who played which role in fuelling it. Heated arguments have also propped up on who “exactly” won the presidential race, with each side claiming victory.

clear winner

One of the latest positions is that fronted by an American scholar, Prof David Throup, who believes Kibaki won the presidency “fair and square”. Noting that there were reports of massive rigging by all political parties in their respective strongholds, Throup maintains that his findings — after a three-month probe into all results released separately by ODM, ODM-Kenya and the ECK — put Kibaki top .

Quit calls

The ping-pong is indeed endless and one former commissioner regrets that the situation got to this level.

“Unknown to many Kenyans, what they witnessed was an execution of a clear criminal act. The ECK system is not as porous as the commissioners are trying to suggest to Kriegler. Those officers simply chose to engage in a criminal act by announcing figures at the tallying centres that are completely different from those on the ground,” the former official told The Standard on Sunday.

Although ECK has since presided over five by-elections, its credibility remains questionable. Law Society of Kenya chairman Okong’o Omogeni wants the entire body disbanded on grounds that it has suffered irreparable damage.

“Why are the commissioners insisting on staying in office that has since lost its credibility? They ought to save face and give Kenyans an opportunity to revamp the electoral system,” he charges.

However, some MPs think otherwise. ECK, they argue, performed fairly well and the slip up was only at the presidential ballot because of high competition.

“The challenges witnessed in the tallying the presidential vote are not reason enough to discount the body’s performance. It is even more dishonest for such a reaction to come from an MP because we are all in Parliament courtesy of an exercise executed by Kivuitu,” observes Assistant minister Njeru Githae.

According to Ms Elizabeth Marete, a programme officer at the Institute for Education in Democracy, ECK should be revamped to enhance efficiency.

Those who share Marete’s view argue that ECK has all along performed well, including at the 2005’s constitutional referendum and that it was only victim this time around because of the high political states.

This position is shared by the Kenya National Commission on Human Rights report, which notes that the polls were historical in that “it turned out to be one in which the incumbent, unlike any incumbent before, faced a real and serious challenge.”

intriguing questions

“This meant that on its own this election generated immense interest: Would Mwai Kibaki decide to remain the MP for Othaya were he to lose the presidency? And how would his backbencher and former president status be managed? At the same time, supposing Raila Odinga was elected president but failed to win Lang’ata parliamentary seat?”