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Fears of imminent crisis as IEBC staggers eight months to election

By Nzau Musau and Jacob Ng'etich | December 4th 2021

IEBC Chairman Wafula Chebukati (left) in Mombasa. [Robert Menza, Standard]

Barely eight months to the General Election, the country is once again staring at an electoral crisis in the eye, with the Independent Electoral and Boundaries Commission (IEBC) grappling with a multifaceted crisis.

Besides the storm caused by the revelation that IEBC had been sitting in alternate election planning forum, divisions are creeping into the commission once again. Tender wars are back to haunt and voters apathy is at its highest with the agency washing hands off it.

The stand off on campaign financing between the commission and Parliament persists, with the door now left wide for politicians to outgun each other with abandon. Yet, this being a transitional election, the stakes are slightly higher for candidates, and therefore for the country.

Some of the issues flagged out in the controversial 2017 election are still pending, with acting CEO Marjan Hussein Marjan telling editors in Naivasha yesterday that they were still looking up to the Communication Authority of Kenya (CA) to implement its commitment regarding the issue of 3G network coverage.

During that election which was annulled by the Supreme Court, 11,155 polling stations out of 40,883 did not have the minimum standard 3G network coverage necessary for transmission of the image of results forms. For four years, this matter has not been conclusively dealt with.

"CAK committed to enhancing 3G network coverage of polling stations through the Universal Service Fund (USF)," Hussein told a meeting of the Kenya Editors Guild.

Hussein himself is an acting CEO. The substantive CEO Ezra Cheloba was fired by the commission and was recently appointed the CEO of CAK.

Given the role technology played in annulment of the 2017 presidential vote, the commission had hoped to conduct an audit of the election technology to avoid the same pitfalls. The far the commission has gone in this regard is to develop technical specifications for the procurement of a reputable, independent certified firm, to conduct the audit. 

"However, the Commission has not procured a firm to audit its technology due to budgetary constraints," Marjan said yesterday.

The last audit of the commission's ICT system, an internal one for that matter, was undertaken in June 2017, a few months before the General Election. It covered, among others, issues of maintenance and licenses.

With regard to data centre and cloud hosting, IEBC has acquired and established two data centres, primary and secondary. However, and according to Marjan, the commission is still "in the process of identifying a data centre cloud infrastructure in Kenya to provide business continuity and contingency mechanisms."

With regards to preparation of the players, candidates have since gone into full campaign mode- some years before the election- building up the tempo, but also defying the law regarding campaign period. Partly due to weak electoral law regime, the commission remains powerless in regulating campaigns outside the official campaign period.

It has since been reduced into a spectator, occasionally barking out cautions to players to desist, with very little effect. 

Acting IEBC CEO Marjan Hussein Marjan. [Boniface Okendo, Standard]

While political parties, in complying with the law, submitted their nomination rules on October 18, it was a spectacular 100 percent failure as none of them had fully complied. They have since revised the rules and IEBC is in the process of reviewing them.

The parties were following in the spectacular failure of the commission in regard to voter listing. On Wednesday, IEBC Commissioner Abdi Guliye surprised the country with his statement on voter apathy.

Guliye was quoted as saying, "We registered about 1.5 million new voters and this can be attributed to voter apathy. The youth are not interesting in voting... they told us they did not expect any change in their lives. The commission cannot be blamed for the low voter registration."

He also partly blamed it on weak funding, revealing they were forced to deploy only three listing gadgets per ward.

Electoral expert Koki Muli was appalled by this admission: "It is such a willful and shocking dereliction of duty that I lack the words."

The elephant in IEBC's room, however, remains the matter of big tendering and the interests they attract. In 2017, late tendering forced by interest groups was partly blamed for the mess that ensued.

To date, while the procurement of election materials, equipment and services has commenced, it is beset by the same problems of 2017. IEBC is essentially walking down the beaten path as regard big tenders.

"The intention of the Commission is to ensure that the procurement of these items are concluded by 31 December 2021," Marjan told editors yesterday.

What Marjan did not say, however, is how ambitious this target is given the constant setbacks the commission has suffered at the tenders appeals board, and courts.

Mega tenders being watched include the migration of data from existing kits, purchase of additional kits, purchase of software and requisite licenses, ballot paper printing among others. Already, a Dutch firm Smartmatic has been awarded the KIEMS kit tender while the ballot printing tender went to Greek firm Inform P Lykos Holdings. 

The ballot printing tender is being fought at the Court of Appeal by a disgruntled entity. The KIEMS tender was challenged by yet another entity, arguing that the data migration was not budgeted for at the time the tender was floated.

The entity also claimed the procurement was not done with fully constituted commission as there were only three members at the time, among other claims.

Election Observation Group (ELOG) National Coordinator Mulle Musau says IEBC should anticipate and preempt some legal loopholes given that they have an entire legal department.

"Some of the issues coming up like local vendors denied an opportunity are some of the mistakes that make one wonder if polls agency were not doing due diligence, which might make one think that they were designing the tenders to fail. I do not understand why the legal department did not see the loopholes," said Musau.

Election Observation Group (ELOG) National Coordinator Mulle Musau. [Collins Kweyu, Standard]

Musau said the country was likely to experience the last minute rushed procurement like it happened in 2013 and 2017 where the electoral agency was forced to do undertake direct procurement.

"The problem with direct procurement is the interests and corruption that comes with it," said Musau.     

Other electoral preparation landmines include last minute electoral law changes which impact on the preparation and conduct of election. On Thursday, ahead of a long recess, parliament passed a motion to shorten the period of publication of amendments to Political Parties Act.

During his state of the nation address earlier this week, President Uhuru Kenyatta had asked parliament to consider fastracking among other bills, the political parties (amendment) bill. 

Finally, the cloud of suspicion gathering with regard to operations of the National Multi-Agency Forum on Election Preparedness. Commission Chair Wafula Chebukati quit the committee, saying its operations were eating into the independence of the body he chairs.

"They required us to report on issues that touch on our mandate to any other agency. But we are working with the relevant agencies through other mechanisms,” he said.

Curiously, Chebukati's admission was seemingly forced out of him by fellow Commissioner Irene Masit, who reminded him to tell a Senate committee if he had been issuing briefs to the forum. The taskforce comprises of among others, Cabinet Secretaries for Interior and Information, and is chaired by the Chief Justice.

The two CSs - Dr Fred Matiang'i (Interior) and Joe Mucheru (Information) - despite serving state offices, are deeply engrossed in political activities on the day, with the explanation that they are supporting their legacy of their boss, President Kenyatta.

Yesterday, Marjan said the commission "is on course and is committed towards delivering its Constitutional mandate." He asked stakeholder to support the commission towards conducting successful general election. In specific terms, he required media to pursue transparency and electoral integrity through awareness, objective and accurate coverage of electoral process.

He announced that the Commission is in the process of sourcing and independent audit firm to audit the register of voters.

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