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Jinxed? Dark past haunts IEBC as Wafula Chebukati's term nears end

Electoral commission bosses since 2007, from left: Samuel Kivuitu [ECK], Wafula Chebukati [IEBC] and Issack Hassan [IIEC]. [File, Standard]

Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati is poised to exit on January 20 next year, and he seems to have suffered the jinx that has befallen his predecessors.

The commission he took over in 2016 is split. On the one hand is a team of four commissioners, led by Vice-chair Juliana Cherera, which has disowned the presidential results that saw Deputy President William Ruto declared winner. He garnered 7.1 million votes (50.49 per cent) against his closest competitor Raila Odinga’s 6.9 million (48.85 per cent).

On the other hand, is a three-member team standing with Mr Chebukati, whose decision to declare Ruto as the president-elect has set in motion a battle seemingly headed to the Supreme Court.

Both sides have traded accusations and counter-accusations, with the latest rebuttal being from Chebukati, who accused the four commissioners of trying to manipulate the results to force a run-off presidential election.

“During a briefing meeting held on August 15, 2022, at around 3pm before the final declaration of the presidential election results, the four commissioners demanded that the chairperson moderates the results for purpose of forcing an election re-run contrary to their oath of office,” the IEBC chairman said in a statement on Wednesday.

But with the jury still out on whether Kenya is headed for a repeat election, the developments within IEBC follow a script unwittingly written by past electoral commissions, which has seen them exit office with a tattered image under a cloud of controversy.

The 2007 Electoral Commission of Kenya (ECK) was forced out in controversial circumstances. Its announcement of Mwai Kibaki of Party of National Unity (PNU) as the winner of the hotly contested election triggered violence.

Trouble started as soon as ECK Chairman Samuel Kivuitu declared Kibaki the victor. Raila, his main competitor and leader of the Orange Democratic Movement (ODM), rejected the results, accusing the commission of rigging in favour of the incumbent.

The 2007/08 post-election violence took the country into a dark abyss and left over 1,300 people dead and hundreds of thousands displaced.

It took the intervention of the United Nations for a semblance of normalcy to be restored shortly after the formation of a coalition government between Kibaki and Raila.

Samuel Kivuitu's ECK lacked institutional independence according to the Kriegler Commission. [File, Standard]

Interestingly, when Kivuitu was queried on the fairness of the election and who he believed had won, he said he did not know who the winner was and had only read out to the public results that were handed to him.

A subsequent report by the Kriegler Commission – headed by retired South African constitutional court Judge Johann Kriegler – also failed to establish who between Raila and Kibaki was the clear winner.

The Krieger team, however, flagged the electoral agency as one that “lacked the institutional independence required to sufficiently discharge its mandate”, noting that various political actors had influenced the commission.

Hounded out

Shortly after, the commission was disbanded by Parliament. Subsequent attempts to revive it failed.

Enter 2010 and Kenya promulgated a new constitution, which ultimately birthed the Interim Independent Electoral Commission (IIEC) to replace ECK.

The commission led by Issack Hassan was also hounded out of office, following protests that it had not conducted the 2013 General Election in a fair and transparent manner. It is against this backdrop that the chair of the current commission assumed leadership.

But in 2017 – after overseeing the elections – the newly constituted commission found itself in another crisis after the Supreme Court nullified President Uhuru Kenyatta’s win.

 Issack Hassan's IIEC was hounded out of office after the 2013 General Election. [Jenipher Wachie, Stephen]

In the first round, Uhuru was declared winner after garnering 8.2 million votes against Raila’s 6.8 million.

Raila, however, contested the results in court and the Supreme Court’s decision caught many flat-footed; it ordered for a repeat presidential election.

Then Chief Justice David Maraga (now retired) in a landmark ruling – supported by a majority of the bench –  faulted IEBC for what it termed failure and refusal to conduct the presidential election “in a manner consistent with the Constitution.”

Although the outcome of the poll was not disputed, the judges said the process had neither been transparent nor verifiable.

A probe by the court established that IEBC servers had been interfered with, despite insistence by the commission that attempts from hackers were unsuccessful. The development came after IEBC’s top IT expert Chris Msando was murdered. This gave the Raila-led opposition the impetus to declare the elections as rigged.

In the repeat poll, Uhuru was re-elected with more than 93 per cent of the votes after Raila boycotted the election, citing mistrust on IEBC. He had demanded a clean-up of the electoral agency before the repeat poll.

Now, IEBC is torn down the middle. Two commissioners, Boya Molu and Abdi Giuliy, and CEO Marjan Hussein Marjan are nursing injuries. The other four commissioners – Cherera, Francis Wanderi, Irene Masit and Justus Nyang’aya – have disowned the presidential results announced by Chebukati. 

The chair has also suspended by-elections in Kakamega and Mombasa for governor seats as well as Kacheliba, Rongai, Pokot South and Kitui Rural constituencies because of what he termed as intimidation and harassment of his staff.

His commission is now facing criticism for his decision to postpone the by-elections that were initially slated for Monday.

Chebukati is, however, confident of his performance in his eight-year tenure.

“We have walked the journey of ensuring Kenyans get free, fair and credible elections. It has not been an easy journey,” he said at the Bomas of Kenya on Monday before declaring Ruto the winner.