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Failure to address conduct of polls betrays handshake aim

By Maina Kiai | December 22nd 2019

One of the biggest disappointments with the Building Bridges Initiative (BBI) report was its cursory treatment of the conduct of elections in Kenya since multipartyism, and its refusal to delve deep into how and why elections divide us, especially since it was the illegitimate and stolen elections that led to the tense stand-off that the handshake was meant to cure.

Nothing in Kenya creates more anger, frustration and disappointment than elections, and efforts to straighten out elections have systematically failed. We even instituted electronic safeguards, meant to act as a second check on the manual counting and voting, but this then became the locus of initial rigging as results electronically sent in did not conform to reality.

I believe the reason the Independent Elections and Boundaries Commission (IEBC) has continued to disobey court order to allow access to its servers from 2017 is because that would show clear evidence of manipulation of numbers. Or it could show deletions of information to avoid being caught “in flagrante delicto.”

The numerous times that IEBC chairman Wafula Chebukati was noted to have accessed the server during the “counting” which he strenuously denied suggests that some staff were working in league with others manipulating the results. Of course, it could be that he is simply denying his own actions, but I doubt he would have had the technical capacity or even interest to get into these sorts of logistical issues as the chairman.

Moreover, the dissenting opinion by Njoki Ndung’u during the petition where she asserted that she personally checked, verified and confirmed perfect forms covering all the 40,000 plus polling stations—never mind that would take a superhuman effort given the time—suggests that there were different sets of forms with results. One set was the ones presented at the Supreme Court with significant anomalies, and another could have been the set that Ms Ndungu “perused.”

The problem starts with political leaders who see the state as a private entity that they can use any way they want. They feel entitled to use state agencies to reward political friends as patronage. These our leaders do not believe in independent institutions, no matter what the law states. This is why most of the independent commissions created by the 2010 Constitution have now been turned into retirement or resting zones for politicians out of work. And this is why parastatal boards are the “zero-grazing” grounds for retired civil servants to continue raking in outrageous allowances to complement their hefty pensions.  

And it gets more intense with the electoral management body which ultimately decides the winner in elections. While it is supposed to be independent, it has been anything but. In 2017, it was run by Wafula Chebukati and Ezra Chiloba, as chairman and CEO respectively, both of whom had very little experience in managing such a huge body and enterprise, and limited expertise in running elections. While they eventually were at loggerheads publicly, ultimately, they conjoined in ruling in favour of might over right. The assassination of IT expert Chris Msando was the turning point and worked to increase fear and intimidation within the IEBC, clearly presaging the eventual announcement.

Their shenanigans were eventually exposed by the Supreme Court petition and ruling which found serious defects and weaknesses. But rather than doing the right thing and resigning in shame, heads bowed, the IEBC instead insisting on continuing in office, making only cosmetic changes and holding a totally incredible and weird election. Eventually, Chiloba was forced out but he has gone to court insisting on compensation, which has become the Kenyan way of doing things even after failure and losing credibility and support. Perhaps this intransigence can be traced to the antics of former IEBC commissioners who literally had to be forced and chased out of office in 2016 when only one political faction had confidence in them, and their continuation in office could easily have triggered conflict and chaos.

Their bias was so extreme that the then chairman, Ahmed Isaac Hassan, had the audacity to declare his animosity against Raila Odinga in his written final submissions in the petition before the Supreme Court. It is still unclear if the judges at the Supreme Court considered these submissions at all, or if they even read them at all in coming to their decision.

What is baffling is that after all this shame and mess, Hassan rebounded and is active globally as an “elections’ expert.” Today, he serves as an International Commissioner in the Afghanistan Independent Electoral Commission, seconded and paid by the UNDP. It is unclear why UNDP would get involved in matters electoral when there is the Directorate of Political Affairs at the UN with that mandate.

But UNDP does more harm than good when it recycles failed officials who could have taken Kenya to chaos and who insist on staying in positions despite lack of public confidence.  I wonder if Afghans know Hassan’s history of bias, incompetence and chaos. But the message his appointment sends is that it is okay to be biased, incompetent and take a country to the brink.

- The writer is former KNCHR chair. [email protected]

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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