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How Samuel Kivuitu colluded with State agencies to steal votes for Mwai Kibaki

Samuel Mutua Kivuitu. [File, Standard]

Samuel Kivuitu had earned the respect of Kenyans as a fair and competent electoral referee following his handling of the 2002 General Election and constitutional referendum in 2005. It was an open secret that Daniel arap Moi would have wished to get himself back into power through Uhuru Kenyatta.

Three factors, however, ensured this didn’t happen. One was the NARC wave that was so strong that little room for undemocratic manoeuvres was left. The other was the steadfastness of the Electoral Commission of Kenya (ECK), where the commissioners nominated by different political parties under the IPPG (Inter-Parties Parliamentary Group) pact checkmated each other.

Yet another critical factor was the willingness of candidate Kenyatta to accept the people’s decision even though the entire State machinery was in his corner. So, as Kenyans went to the polls on December 27, 2007, rigging of the vote by the ECK was at the bottom in their hierarchy of worries. Not that they were not alive to schemes to steal the elections. Far from it!

Many schemes to subvert the will of Kenyans at the polls had been uncovered and either reported to relevant authorities (who paradoxically were part of the schemers) or dealt with outside the law. One such scheme was the effort to post officers of the Administration Police disguised as civilians to polling stations in ODM strongholds. Whistleblowers’ reports indicated that these undercover officers were detailed to cause chaos at the polling stations, thereby scaring away the voters, and thereby depressing voter turnout.

The scheme backfired when these agent provocateurs were identified, pulled out of public transport and beaten. Tragically, no less than two lost their lives. The PNU (Party of National Unity) version was that these were the party’s poll agents. But the widely-held belief in our camp was that our competitors were keen on stealing elections. The referee would not permit it, many believed.

There were many red flags, indicating the stakes were higher than the previous General Election and the November 2005 referendum.

The first red flag was President Kibaki’s appointment of people to fill positions vacated by retiring commissioners without reference to political parties. Many commissioners had run their term and were due for replacement. Kibaki disregarded the IPPG arrangement and unilaterally packed the ECK with people perceived to be partial to him and PNU. Protests by his competitors and the civil society fell on deaf ears. Martha Karua, then Minister for Justice and Constitutional Affairs, dismissed the IPPG deal as a mere gentlemen’s agreement that had no force of law.

The second red flag was denying entry to ODM presidential agents at a number of polling stations. In many constituencies, especially in President Kibaki’s Mt Kenya backyard and parts of Nairobi, ODM’s presidential polling and counting agents were denied entry or forcefully evicted from some stations or constituency tallying centres. This was intended to deny ODM the opportunity to verify the tallying of votes; to ascertain the number of votes cast in favour of each of the presidential candidates; and to question any irregularities.

It provided Kibaki and PNU with unlimited flexibility to manipulate the figures, either by inflating the number of votes cast in favour of Kibaki or reducing the number of those cast in favour of Odinga. In not less than 20 constituencies, ODM candidates and agents were physically assaulted, intimidated and harassed at tallying stations by members of the armed forces. This was done in the presence and full view of, if not with the connivance of ECK officials. Formal complaints by the ODM leadership were contemptuously dismissed. It is instructive that most of these were constituencies where ministers and other senior government officials came from.

The third red flag was the deliberate failure by ECK to establish a national tallying mechanism. The ECK refused, failed and deliberately avoided establishing a national tallying mechanism through which it would, as required by law, formally and publicly receive results for the presidential vote from each returning officer in charge of a parliamentary constituency. This starkly contrasted with the 2002 election, when such a centre was established at the County Hall. Tallying agents nominated by political parties and duly accredited by ECK were restricted to the briefing hall for the press at the Kenyatta International Convention Centre (KICC) and could not witness or verify results from constituencies as returning officers submitted them.

Each returning officer submitted his or her returns through a document known as Form 16A to the ECK tallying officials in the absence of candidates or their appointed agents. The ECK officials would unilaterally receive results away from public scrutiny and announce them at the KICC press centre. When Kivuitu, who was the returning officer for the presidential election, was asked by ODM agents to confirm whether he had established a national tallying mechanism and to allow ODM agents into the room, he casually sent the agents to the press centre.

When Raila Odinga’s (ODM candidate) tallying agents demanded access to the hall/room where the ECK was fraudulently altering the results, armed police and paramilitary GSU officers barred their entry and denied them access to the ECK tallying activities. Kivuitu even had the audacity to confess that the results were being “cooked” even if he did not know in which kitchen the cooking was taking place and did not disclose who the chef was.

The fourth red flag was the ECK edict to gag the media from broadcasting the results they received. The media was prohibited from announcing or publishing results that were not certified by ECK in any form. This obviously negated the acts of news reporters being sent to various polling stations. Soon, it became clear why ECK was behaving the way it was. There was a string of aberrations.

The first aberration was noticed when the results started trickling into the ECK tallying room, which was declared out of bounds to candidates and their agents: ECK’s announcement of results was not supported by the statutory Form 16A. Presidential election results for 48 out of 210 constituencies were announced without any supporting Forms 16A. These forms were necessary for party agents to verify the results. In their absence, therefore, the results announced by ECK could not pass the test as being true, accurate and verifiable.

The second was the announcement of results that were at variance with those in Form 16A. The ECK announced presidential election results that differed fundamentally from the results issued and confirmed by returning officers and ODM agents in not less than 39 constituencies. In each of these cases, either the votes called for Mwai Kibaki were higher than those recorded in Form 16A and announced at the constituency level, or the votes announced for Raila were lower than the number recorded in Forms 16A and announced at the constituency level. In some cases, votes for the two candidates were correspondingly reduced, or increased, to maintain the original votes cast and the voter turnout.

The fourth aberration was the variance between the presidential votes and the parliamentary ones. In 10 of the disputed constituencies, the total number of presidential votes cast far exceeded the total of all parliamentary votes cast in the area.

The fifth was the refusal by ECK officials to make Forms 16A available to Odinga’s agents. Presiding officers in 42 constituencies refused, neglected and/or failed to make available to Odinga’s agents Forms 16A at the close of polling and counting for the purpose of recording figures relating to the presidential vote. Returning officers in these constituencies did likewise at the close of tallying. They simply announced they did not have Form 16A, and as such they could not fill in the form and issue Odinga’s agents with the relevant copies for onward transmission to Nairobi.

When ECK commissioners started announcing the results, our agents noticed that there were disparities. The first string of results was mainly from ODM strongholds where Odinga whitewashed Kibaki. But they noticed that votes announced in favour of Kibaki were higher than what was reflected in the copies of Form 16A in their possession. It later emerged that it was all part of the ECK design to begin with Odinga’s strongholds in order to assess how many votes they needed for top ups that would be necessary for Kibaki to remain in the country’s leadership.

In Part Two tomorrow: How ODM uncovered the rigging.