SECTIONS

Fears over constitutional crisis should IEBC fail to hold repeat polls within 60 days

IEBC Commissioner Roselyne Akombe acknowledges greetings from fellow worshippers at the Umoja 1 SDA Church.

A flurry of nocturnal meetings involving different stakeholders have been taking place since Friday in a bid to beat a possible constitutional crisis in the event the October 17 repeat presidential election is rescheduled.

Saturday, indications were rife that the Independent Electoral and Boundaries Commission (IEBC) could be reconsidering October 17 date following admission by the company that provided it with the voter transmission systems that it may not upgrade the kits for flawless use by the set date.

The delegation of the French company – Safran Morpho – led by its Chief Executive Anne Bouverot was said to have been holed up in discussion with the electoral officials, apparently looking for available options that would ensure the Kenya Integrated Elections Management Systems (KIEMS) are upgraded without loss of the August 8 data, and in time for the repeat polls, that must be held by November 1.

The possibility of the change of dates triggered action, with sources informing Sunday Standard that Jubilee team immediately assembled its legal minds to look into the “realistic options” to put forward to the electoral body, in the event of change of dates.

“We are still meeting from Friday. Walking from one (meeting) to another, and considering the realistic options in the very likely event that this date is changed. It largely appears that the October 17 date may be moved,” said a source within Jubilee.

He said the greatest concern will be if the French company is unable to upgrade the systems in time before the lapse of the 60 days, directed by the Supreme Court to the IEBC to ensure a repeat election is held.

“God forbid! But that could be an unimaginable crisis,” he said.

An IEBC commissioner declined to comment on the talk of change of dates or what was being discussed with the Safran Morpho bosses, only saying whatever decision the electoral body takes will be independent and devoid of any influence.

Time concerns

“The commission is intact and the practical independence of the commission has led to it taking its own decision without influence,” the Commissioner said.

Debate raged over the matter, with stakeholders maintaining that it was upon the IEBC to ensure the repeat poll is held within its set time.

Some leaders and experts who spoke to Sunday Standard downplayed the budget and time frame concerns, saying the quagmire the commission finds itself in has everything to do with a breakdown in relations between the commissioners and the secretariat.

“IEBC has a responsibility to ensure there is free, fair and credible elections. To ensure their decisions are respected and their word honoured, they must ensure they deliver the elections on the day they announced to the people,” said Senate Majority Leader Kipchumba Murkomen.

He added: “Change of date can only be occasioned by exceptional circumstances that can be understood by a reasonable man. However, they are bound to hold the elections within the 60 days as per the constitution and nothing can vary that constitutional timeline”.

The commission has been censured for failing to form a working technology committee involving various stakeholders and political players as per the election regulations rule 2017 to thrash out the misgivings raised on the conduct of the August 8 polls.

“The commission is in a dilemma that is self-made. It is purely administrative. After the court determined that the electoral process was not credible, you conduct a self-audit on what really happened,” said Makueni Senator Mutula Kilonzo Jnr.

He said the biggest problem in the commission is with Chebukati and CEO Ezra Chiloba.

“If we sort out this mess, everything will be straight forward. There is nothing complicated in the servers or the KIEMS that can block us from having the elections,” he said.

Senator Kilonzo Jnr questioned why IEBC has not constituted the technology committee to deliberate of the issues raised. “We don’t need to purchase any new devices or new system. This committee, once constituted, will discuss the budget and purchase what is need,” said the legislator.

Constitutional crisis

Gabriel Mukele, a former electoral official, underscores the importance of public confidence and respect to the rule of law in the electoral process.

“The time frame prescribed is defective but it’s in law and therefore the electoral body must put everything in place for the polls. The exercise should strictly be in accordance with the law.”

Although Jubilee and NASA have never agreed on anything since the Supreme Court verdict that ordered fresh polls, its leaders acknowledge that the elections must be held within 60 days.

“If IEBC fails to conduct polls on October 17, it will still have 13 more days to remedy the situation. The date set by the electoral agency is not cast on stone,” said Rarieda MP Otiende Amollo.

Otiende says if Kenyans fail to go to the polls, there will be a constitutional crisis.

“The process is contemplated in the Constitution and it cannot go on indefinitely outside the provisions of the law. If this happens, the legitimacy of the president and the Executive will be in doubt. This will force both parties to negotiate outside the constitution,” he said.

Meanwhile, OT-Morpho has said an “in-depth audit” of the system showed the opposition’s claims about hacking to be untrue. In a letter to the French government, Raila had accused OT-Morpho of allowing unauthorised access to its servers and manipulating the transmission of results.

The company’s chief operating officer Frederic Beylier told AFP the audit, undertaken with help from external experts from security software companies, had shown the system “in no way suffered manipulation of data, attacks, attempts to penetrate it or anything of that kind.”

NASA had also claimed an algorithm was introduced into the system to manipulate the results as they streamed in.

“We obviously checked if there could have been questionable manipulations by any authorised or unauthorised persons and can confirm there was no manipulation of data that could raise questions,” said Beylier.