By Jack Tumwa
On 26
th December 2007, l left Kenyatta International
Conference Centre at about midnight.l had just held a final technical
committee meeting with the departmental heads during which we reviewed
and ran through a checklist containing the final arrangements for the
General elections, the voting of which was due on the following day.
Reports received from our Returning Officers all over the country
clearly showed that all was in order and ready for the voting the next
day. This assurance gave us confidence that all was set. My colleagues
and i confidently looked forward to the real test of our efforts
planned to take place on the following days.
I hardly slept on that night, as i anxiously waited for the
morning. I prayed and looked forward to a credible, free and fair
elections to run according to our plans. The last steering committee
meeting had confirmed that all logistical arrangements were in place.
These included election materials, the personnel who included our
officers, peace committee members, security personnel attached to eck,
and other stakeholders including those from the media and observers both
local and foreign.
Come 27
th December 2007, I left my house at around
5.00.am. My first stop was at a poling centre situated at Uhuru Gardens
Schools only a few metres from my resident. l was attracted by a huge
crowd of voters orderly lined up, and anxious to cast their votes as
soon as the station opened. I at the same time observed that the
gates to the school were blocked by some rowdy and what appeared to me
like self appointed agents who were guarding the gate, making it
difficult for anyone to enter. I noticed that amongst those locked out
were some of our election officers. The two police officers in uniform
at the station, who were expected to maintain law and order appeared
overwhelmed by the crowd. I feared that some of the eck officials
locked out of the centre, and, who needed time to organise themselves
before opening the station for voting were running late, and that
would inevitably have resulted in opening the station late.
Consequently, i decided to intervene by way of persuading those
responsible not to do anything that would obstruct the smooth running
of elections. It took me some time, but finally, managed to convince
them to allow officials on identification to get into the compound.
This was only after introducing myself as an eck Commissioner, the
position which appeared to command some respect. I left the station only
after ensuring that election officials had been allowed in and ready to
start the process of voting.
This early single incident caused me some discomfort. As i drove
towards the city centre, I kept wondering whether this was an isolated
incident or whether other poling stations were going through similar
challenges.
One other incident worth mentioning here was what I saw on Mbagathi
road. The road was awash with fliers depicting Raila Odinga as Idi Amin
in full military uniform. This was indeed unfortunate considering
firstly that the fliers were abusive, and secondly that this was a
voting day. The official campaign period was over. I reported this
incident to the police officer on duty at the KICC with a request that
they quickly investigate the matter.
Missing Name.
On arrival at KICC, I received a call from Tony Gachoka informing me
that Hon Raila’s name was missing from the register.Hon Raila Odinga was
not only contesting for a Parliamentary seat in Kibera constituency,
but was also a Presidential candidate. His name missing from the
register was inconceivable. Indeed, prior to this, and during the
campaigns, there were allegations that plans were underway by his
opponents to disqualify him [Raila] from contesting firstly, as a
Parliamentary and consequently, as Presidential candidate. ‘Not
possible’ was my response to Gachoka’s shocking information, and, as if
to add weight to what he had said, he handed the phone over to Mrs Ida
Odinga the wife of Hon. Odinga who repeated the same messege.I advised
the two to check all the registers at the centre as I believed that the
person who raised the alarm could have based his/her information on a
single register in one stream, forgetting that there were other steams
at the centre with registers, and in all cases, with names arranged in
alphabetical order.
These arrangements were meant to reduce congestion at centres that
expected large voter turnout. The plan was to have an average of 500
voters per stream to ease the flow of voting.
In order to facilitate and ensure that these arrangements work
smoothly, usher clerks were deployed at the entry of centres with
multiple streams. Their brief was to assist in directing the incoming
voters to their rightful steams. Presiding officers were not only given
adequate briefing in this regard, but were also directed to rehearse
the arrangements a day prior to the voting.
It was not clear to me how and why these simple instructions were not
followed, assuming it was true that some agent went to a wrong stream
in Kibera, and was unable to trace Raila’s name on the register leading
to his/her raising the alarm. It sounded unimaginable that Raila’s
name could miss from the register. I nonetheless called the Eck
Computer Manager requesting him to urgently verify the allegations and
get back to me immediately. He did this and cornfirmed that Raila’s
names were correctly in the register.
Shortly thereafter, Hon Raila came to our offices at KICC to register
a similar concern. It was clear and even more worrying that as at that
time, the allegation had already been captured by the media and
broadcast all over the country causing a lot of anxiety. It was
necessary to urgently correct the misinformation and, assure the country
that all was well. I advised Hon. Raila that I had checked and
established that his name was indeed on the register, and that all he
needed to do was to proceed to Kibera and confirm what I was saying by
casting his vote.
I took advantage of the media personnel who had accompanied him to
correct the misinformation regarding the missing name, and, as
severally done before, appealed to all wanainchi to co-operate with
election officials in order to allow for peaceful and smooth voting.
In the meantime, the Chairman of eck Mr S. M. Kivuitu who was touring
various poling stations in Nairobi, on hearing the news, headed
straight to Kibera to establish the cause of the allegations. He
similarly found that Raila’s name was on the register. Indeed his
appearance helped to calm the situation which was almost getting out of
hand, although he also got a share of the heckling. He further ordered
that a single register be readily availed for use/verification by the
doubting Thomases.
It was difficult to establish whether this scare was as a result of
some agent,s relying on a single register as stated above or whether it
was a deliberate propaganda gimmick by some unknown characters bent on
causing confusion and unrest.
Free, Fair and Credible Elections, Or Was It?
. In order to make a fair assessment of the 2007 general elections,
and the very unfortunate consequences witnessed in the country
thereafter, it may be useful to critically examine eck’s preparedness at
various stages, as mirrored against the electoral process cycle. In so
doing, I wish to focus on electoral activities, and the work done by
eck in an effort to enable Kenyans to hold a free, fair and credible
elections. The following questions asked at every stage of the electoral
process may in my view assist in establishing whether or not the eck
was sufficiently prepared to run the 2007 election.
- was the legal framework necessary to guide the electoral process
in place, and if not, what action was taken by the eck to complement
the then existing laws?
- was the delimitation of electoral units (constituency and ward
boundaries) in place, and if not, what corrective measures were taken
by the eck?
- was the voter registration and hence voter registers complete and
inclusive of all willing eligible voters, and if not, what corrective
measures were taken by the eck?
- was the voter education programme conducted to assist wananchi and
other stake holders to understand and effectively participate in
elections done to their expectations?
- were the preparations for voting, tallying and the announcement of results in place? and finally,
- was there sufficient arrangements for petitions for those who may have been aggrieved during the election process.
Early planning.
Although preparation for the 2007 General Elections picked tempo at
the conclusion of the 2005 referendum which was conducted by the eck and
praised as free and fair, the actual planning had commenced much
earlier upon the conclusion of the 2002 general elections.
Immediately after the elections, the Commission embarked on an
evaluation exercise which resulted in several recommendations amongst
which was that the Commission prepares it’s Strategic Plan covering
the years 2004 to 2008.
The plan as a road map to the Commission’s work was meant to guide
and to prioritize all the Commission’s activities. It indeed, proved
to be a very useful tool in our preparatory work.
Preparations started by:
- examining the electoral legal framework. This was meant to identify
areas of weakness and consequently recommend them to the Parliament with
a view to having it to amend and/or enact laws/regulations deemed
necessary in improving the management of future elections
- reviewing the constituency and electoral areas (ward) boundaries
in order to correct the imbalance in representation which had become a
matter of great concern.
- increasing the number of polling stations, while at the same time
adding to the number of streams in each station in order to ease
congestion and quicken the pace of voting.
- Organizing voter registration exercise to complement the continuous
voter registration program. The law required us to conduct such yearly
comprehensive all inclusive voter registration exercise.
- While performing the above assighnments, other important activities
including the procuring of election materials, recruiting training and
deploying of election officials, the co- opting and involving other
stakeholders such as the media, civil society, government departments,
religious organizations etc in the electoral process were simultaneously
being undertaken.
Although the 2002 elections conducted by eck were applauded as very
successful, free and fair, by both Kenyans and the International
community, we at the commission felt that there were several
weaknesses and challenges that needed to be addressed in order to
improve on the gains of 2002, in readiness for the 2007 elections.The
first logical step was to examine the laws governing election.
- l) Legal framework.
The NARK Government promised to avail to Kenyans
a new constitution within a hundred days of it’s coming to power. As an
Institution charged with the responsibilities of overseeing election
matters, we at the electoral commission felt duty bound to make our
contribution on matters touching on electoral law.
A committee was set up under the chairmanship of Mr G.K. Mukele the
then Vice Chairman of the Commission with a brief to review various
sections of the law relating to elections, and make recommendations
pointing out areas that required amendments. The committee moved with
speed completed it’s assignment and prepared a memorandum covering the
electoral law.
The said memorandum was presented to the Constitution of Kenya Review
Commission in May 2002. The same recommendations were later given and
appear to have been adopted by the Kriegler Commission of inquiry.
The following areas were covered.
- A) Recommendation to the Constitution of Kenya Review Commission. (CKRC)
Our recommendations to the Constitution of Kenya Review Commission,
covered the following areas:
- Conflict resolutions on matters arising from electoral malpractices.
We were of the view that the lawlessness and impunity that this
country experiences every time there is an election could only be
checked if
a legal mechanism were put in place to
expeditiously examine election disputes and pronounce the verdict
including barring of offending candidates or parties from taking
part in an election whenever there was sufficient evidence of serious
electoral malpractice.
- Service of Petition Documents on Respondents:
The issue of presentation and service of petitions to respondents
had and continued to be controversial. The requirement that service on
respondents must be presented to them personally had in many cases
proved difficult to implement especially where respondents were powerful
individuals surrounded by security agents. In some cases, respondents
fearful of being served merely went into hiding until after the service
period. It was therefore recommended that the law be amended to include service by gazette notice or by advertisement in any of the daily newspaper with a nationwide circulation.
Electoral Commission finances.
It was recommended that
the electoral commission expenses should be
charged on consolidated fund, and be subject to the usual government
audit procedures. It was felt that apart from enhancing the Commission’s
independence, such arrangements would expedite the Commission’s operations.
Appointment of Commissioners:
A clear and generally acceptable criteria for the appointment of Commissioners was in our view central
to the way the Commission was perceived by the public. While the then
Constitution gave the powers of appointing Commissioners to the
President, the 1997 IPPG [ Inter Party Parliamentary Group of
1997 ] resolved and gave the responsibility of appointing Commissioners
to Parliamentary Political Parties. The sharing was to be done in
ratio to Party’s Parliamentary strength. Unfortunately, and perhaps
deliberately, the 9
th Parliament did not find it necessary to
enact this agreement into law, leaving it to remain as a mere
gentleman’s agreement subject to abuse.
Establishment of viable and regulated political parties.
Given the important role Political Parties play in any electoral process, it was recommended that
they be elaborately catered for in the Constitution and a law be enacted to regulate their activities.
The Commission observed that disciplined and well organised political
parties with clearly set out ideology and party programmes were a must
for a conducive political environment.
It was further recommended that those parties that met the set criteria be registered and be assisted by way of funding by the Government.
This was considered necessary especially at the formative stages when
parties with sound vision for the country needed support for a take
off. Funding Parties would also neutralise the self serving practice of
rich individuals habit of funding and in a way appearing to own them.
The set threshold required to form a political party would deter
briefcase politicians whose only purpose of forming political parties
is to use them as a means of making money.
Demarcation of Constituencies:
The commission considered that while the provisions under Section
42(3) of the Constitution provided useful guidance in the process of
constituency boundary delimitation,
a complementary amendment providing for a variation formulae should be added. This would clearly show the % variation from the average population allowable per constituency/ward, ie the minimum and maximum allowable population figures in each constituency and ward bearing in mind the country’s topographical differences.
The contrasting landscape of Kenya necessited a variation
formulae allowing for a population plus or minus the country’s
constituency average.
Separation of Presidential and Parliamentary election’s day from that of the Local Government.
The commission observed that following an increase
in the number of political parties and the consequent increase of
candidates participating in any given general elections, there was a
resultant major logistical challenge. Voting locations like schools
where classrooms are utilised are inadequate to accommodate observers
who include agents, media, election officials etc.
It was therefore
recommended that the law be amended to allow for Local Government
elections to be held on different dates from that of the President.
The alternative type of representation [Proportional Representation]
While our current electoral system is based on constituency First
Past the Post, consideration should be given to supplement this
electoral system with that of Proportional Representation.
The Commission recommended a system referred to as Mixed Member Proportional System.
Other recommendations included,
The need to have election calendar enacted in our laws so that voters know in a advance
when elections would be held. The Commission was at the time under
Pressure from several groups to consider December period as inappropriate for
Election.
Level playing ground
The need
to legislate level playing ground between the parties in Government and those in opposition especially during election period.
This would keep in check the common abuse of positions and misuse of
public resources by those in power. Public servants wishing to run for
elective positions should be required to resign in time to avoid taking
advantage of their positions to campaign.
Gender balance.
The Commission considered the disadvantaged position of women arising
from our cultural practices, poor economic power, aggressive and even
violent political campaigns etc, and recommended that affirmative action
be taken in favour of women to accelerate their promotion in elective
and other public offices and hence,
the need to enact laws that would guarantee gender balance in representation.
- B) Consolidation of electoral law:
The Commission observed that the then laws governing the electoral process in Kenya were not contained in one single document.
It was often difficult to identify relevant peaces of legislation as
one had to combine different provisions from different law documents to
get a clear and full picture of what was applicable. The laws
governing elections were by then covered under:
- The Constitution of Kenya (1998 edition)
- The National Assembly and Presidential Elections Act (Cap 7 Laws of Kenya 1998 Edition)
- Electoral code of conduct
- The Local Government Act (Cap 265 Laws of Kenya,1998 edition)
- The Election Offences Act (Cap 66 Laws of Kenya)
- The Societies Act (Cap 8 Laws of Kenya)
- The Public Order Act ( Cap 56 Laws of Kenya)
- The Kenya Broadcasting Corporation Act ( Cap221 Laws of Kenya)
- The Penal Code ( Cap 63 Laws of Kenya)
- The Constitution of Kenya Review Act (Cap 3A Laws of Kenya) and the
- Constitution of Kenya Amendment Act 2004.
Consequently, the commission found it necessary to combine these laws
under one statute for easy of reference. The Commission initiated
action in this regard and worked very closely with the Kenya Law
Reform Commission, the Ministry of Justice and Constitutional Affairs,
Political Parties and the Institute of Education in Democracy to
consolidate the relevant laws.
By the time we went for the elections in December 2007, the
revision and consolidation of the Elections Bill 2007. in draft form was
almost finalised and ready to be forwarded to the Attorney General
for his input and thereafter, to Parliament for debate with a view to
coming up with a single Act.
- C) Political Party Law:
As stated earlier, Political Parties play a central role in any
electoral process. In Kenya, Political Parties were then registered
under the provisions of the Societies Act (Cap108). The Act was
considered inadequate and generally inappropriate for political
parties. The Commission found it necessary and recommended that rules
and regulations governing their registration and activities be put in
place.
Consequently, the Commission initiated the convening of meetings with
relevant stake-holders, including, political parties, civil society
groups, Institute of Education and Democracy, Attorney General, etc who
jointly drafted the electoral law. The object of this draft was to
regulate the registration, activities and funding of political
parties. The Political Parties Act, 2007. which came into force
on 1
st July 2008. was as a result of those efforts.
- D) Elections Regulations.
The Commission made a thorough review of the
elections regulations under Cap. 7 (1998 Edition) and made significant
amendments which were contained under Legal Notice No.178 of 2007
amendments. These efforts were a continuation of the review which led
to the amendments contained under Legal Notice No.172 of 2002.
The question we may never find an answer to is if Kenya’s history
relating to the elections of 2007 would have been different had the 9
th
Parliament enacted some if not all the recommendation that were
proposed by the Commission. Perhaps not. These same recommendations were
adopted by the Kriegler Review Commission, and there after belatedly
enacted after the nasty election experiences of 2007. There was no will
on the part of the political class to enact laws that appeared to check
the excesses they had been so much used to.
Even then, the political will to enforce the rule of law
inadequate as it may have been at that time was lacking. The selective
application of the law coupled with assumed impunity and the resultant
immunity of Kenya’s political class from prosecution especially
during election time leave no doubt that the conflicts experienced
during the previous elections would most probably have been repeated in
2007.
11] Delimitation of electoral units.
The law as at then required that constituency review be carried out
every after ten years or after a national census.The last review was
held in
1996 just before the general elections. Three years thereafter, the country held a national census in 1999.
It was therefore considered absolutely necessary to review the
boundaries before the next elections which were due in 2007.Guided by
the Law as contained in the Constitution and Cap 7, the Commission in
consultation with relevant actors including Government Ministries,
Political Parties, and the University of Nairobi, worked out a formulae
on how to review the electoral units. After consultations, and bearing
in mind the input of the mentioned stake holders, the Commission
proceeded to formulate a formulae to be applied.
Taking the population as central to the review, the Commission
decided to use the 1999 official census of 28,686,607 people. This
total gave us an average of 136,603 inhabitants per constituency,
considering the then 210 constituencies in the country. The commission
was also mindful that the law allowed for variations based on
differences brought about by topographical features, community of
interest, means of communication etc. In consideration of the above,
Commission settled on a variation formulae of 30% from the average
136,603. constituency population. In effect this meant that densely
populated constituencies like urban areas would each have a population
of 136,603 plus 30% giving a maximum of 177,584 people per
constituency. On the other end, sparsely populated areas would have a
population of 136,603, minus 30% giving a maximum of 95,623 people per
constituency.
After developing the formulae and before the Commission embarked on
field visits, we as a matter of courtesy briefed the President and all
registered political parties. A letter was written to all registered
political parties informing them about the formulae we planned to use
and seeking their further input if any.
A consultative meeting between the eck and all registered political party leaders was held on 22
nd
July 2004, with the main agenda being the planned review of
constituencies bearing in mind the criteria the Commission intended to
use.
In determining the number of additional seats in Parliament,
Commission was guided by the population increase between the years 1989
and 1999.
The country’s population according to the 1989 census was
21,448,774 people. By 1999, this figure had increased to
28,686,606.people, an increase of 34%.
Accordingly, we recommended that Parliamentary seats be increased in
proportion to the population increase. This would have resulted in an
additional 64 seats. However, since there was an increase of 22 seats in
1996, the balance left for consideration would have been 42 extra
seats.
This was the figure eck settled for bearing in mind the economic
burden required to sustain a large Parliament. Consequently, the 2008
Parliament would have had 252 elected Members of Parliament.
It was hoped that this moderate figure would have gone along way to
progressively narrow the gap between the largely populated
constituencies and those that are relatively small in terms of
population, and thus make a first step towards achieving some level of
equity in parliamentary representation.
Armed with this background, Commission carried out a comprehensive
review of Parliamentary constituencies and Local Government electoral
areas between 2004 and 2006. The review was not without threats. In some
places such as Mandera Central, Narok, and sections of Teso, and
Eldoret town, among others, locals expressed fear that the democraphy
presented a risk of domination by migrant communities and hence were
very un co-operative with the commission’s review process.
This in our view presented a challenge that required careful handling
considering the sensitivity and hostility which was largely based on
ethnicity. This challenge is real and must be carefully and rationally
addressed by all of us and in particular, our political and economic
giants in order to avoid future disintegration of the nation.
In spite of such incidences, we nonetheless completed our assignment
and grafted extra constituencies bearing in mind the views expressed at
both local and national levels.
At the Local Government level, we increased civic electoral areas or
wards by 368, bringing the total to 2,472 wards countrywide. It was felt
that councillors at the grass-root level play a major representation
role for their people. In regard to parliamentary seats, we identified
42 most deserving constituencies and, at the same time made an
allowance of 18 extra seats to give some leeway to Parliament should
it consider it
absolutely necessary to increase to a figure beyond the 42.
At the same time, and driven by the need to ease congestion at the
polling centres, we increased polling stations from 14,114 to
21,652.This increase effectively meant that there would be on average
500 voters per stream, a figure which we expected would make it possible
to complete voting and counting of the votes before sunset.
It was unfortunate that the Ministry responsible for tabling our
proposals
in
Parliament ignored our recommendations and tabled figures that were
at variance with the Commission’s. The motion was rejected with the
unfortunate consequence of Kenyans holding yet another election with
uneven parliamentary representation.
111] Voter registration
In the year 1997, the Commission computerised its voters’ registers.
Since then, a master register of voters was maintained. Prior to this,
voters were registered afresh every time there was an election. In
2002, and, on the initiative of the Commission, the Parliament enacted a
law providing for a continuous voter registration. Consequently,
officers were recruited and deployed in all districts to carry out
this exercise. Their work involved:
- Registering of new voters consisting mainly young people who had attained voting age.
- Capturing particulars of voters who wished to transfer their voting locations.
- Deleting from the register persons who may have died.
- Replacing of voters lost or mutilated cards
- In conjunction with the District co-ordinator, organising and
running voter education activities in their respective districts.
The major limitation in carrying out the above activities was lack
of logistical support including transport. As a consequent, much of the
activities were carried out at the District headquarters. Voters were
expected to travel long distances to register and hence, very few voters
were captured under this programme.
Over and above this, the law required that once every year a massive
voter registration be carried out with registration officers operating
at voting centres at village level and cover the whole country.
However, owing to financial constraints it became difficult to carry
out this yearly exercise as required by law. Additionally, the heavy
work lord that was necessitated by the 2005 referendum limited the
Commission to three major registration exercises as follows:
- Between 15th August and 14th September 2006, we held a registration
exercise which netted 1,122,525, new voters. At the same time, 1,456,440, voters transferred to new stations.
- Between 1st March and 30th March 2007, a
second national-wide registration exercise was carried out netting,
601,706 new voters, and 716,033 voters transferred to new stations.
- Between 11th June and 31st July, 2007 a final exercise was carried out capturing 1,241,278, new voters.
The total final figure for the 2007 elections stood at 14,296,180,
voters. These large numbers of people turning up to register was largely
attributed to the voter awareness following extensive and intensive
voter education activities by the Commission and it’s partners. The
Institute of Education in Democracy played a very important part in
this respect. Ms Koki Muli the then Director and her staff did a
commendable job. [Vijana Tugutuke Ni Time Yetu] progrmme which helped to
arouse voter awareness in many young people causing them to register
in big numbers was the Institute’s brainchild. Thanks to the Australian
Government for funding some of these activities.
Removal of dead voters from the register.
As mentioned above, prior to 1997, voters were registered every time
there was a general election and hence, the question of names of dead
people appearing on the register did not arise.
However, following the 1997 computerisation of registers, a permanent
record containing names of registered voters was maintained. This
called for regular up-dating of the register by adding newly registerd
voters while at the same time deleting the names of those who had died.
The latter turned out to be a challenging exercise. It was discovered
that not all death in the country were captured by the Registrar of
Birth and Death.
The Commission made efforts to use local Provincial Administration
officers like chiefs and sub chiefs, however this was equally
unsatisfactory as not all death were recorded. In the majority of cases,
identification card numbers of the dead were unavailable making
tracing difficult.
During the major registration exercise, registration clerks displayed
registers containing all registered voter’s names and appealed to the
general public to assist in identifying those who had died. Through
these efforts, and by the time the 2007 register was ready, we had
managed to delete a total of 513,148 diseased registered voters.
It was difficult to establish how many more names of the dead were
not captured, especially given that the computerised register had been
in use for over ten years. Having observed such challenges, the
Commission resolved that in order to solve the problem of having names
of dead people on the register, a fresh registration exercise would be
carried out immediately after the election in order to have a
completely new register starting in the year 2008.
Double/ Multiple registration.
. It is noted with regret that despite the campaign for voter
awareness, we still had a very big number of voters who had registered
more than once. There were 188,222, voters identified as having
registered more than once, and some so repeatedly that they appeared
421,522 times. Indeed all were deleted from the main register and
hopefully were not allowed to vote.
Part of the Commission’s post mortem exercise was to make a follow up
of these cases with a view to taking corrective measures which could
have included taking legal action where evidence was sufficient.
- IV) Voter Education
Although recognised as an important constitutional function for the
Commission, voter education was for many years very poorly funded.
There was a general believe that since Kenyans had been voting since
independence, there was nothing new for them to learn in election
matters. There is no doubt that this notion served the selfish interests
of the political class who exploited and took full advantage of the
ignorance of the voter. In consideration of the important role voter
education plays in a free and fair electoral process, the Commission
improvised by working very closely with some civil society groups, and
in particular, the Institute of Education in Democracy to promote Voter
Education. The Institute, and often with the assistance of Commission
managed to get funds from some of our development partners for the
purpose of conducting voter education activities.
Voter education was only recognised as essential to the promotion
democracy in Kenya during the 1997 Inter Party Parliamentary Group
debates and consequently itemised as one of the functions of the eck. In
consideration of the important role voter education played in
elections, and given that the item was always under funded, the
Commission’s Chairman took the initiative and approached various
development partiners seeking to raise funds and other resources
necessary for voter education.
Among those who were first to come on board were the Netherlands
Government, whose ambassador in Nairobi worked very closely with the
Commission, and in particular, assisted in the funding of voter
education activities prior to the 2002 general elections.
The Australian Government had ealier on undertaken to assist by way
of providing funds to the Institute of Education in Democracy, who
partnered with Commission to run voter education programmes. UsAid
played an important role in the Commission’s capacity building both by
providing materials and activities relating to human resource
development.
Voter Education Objectives.
In general, voter education programme aimed to achieve:
- Increased participation of Kenyans in the electoral process by sensitising them on the importance of taking part in elections.
- Increased participation of women and other marginalised groups.
- Increased awareness for Kenyans to make informed choices
- Reduced electoral violence
- Strengthened political parties.
- Knowledge on how, when, and where one should vote.
Voter education received a big boost during the preparation for the
2007 general elections, when development partners came to our aid and
contributed generously to a common basket which was run by the UNDP,
under a unit referred to as ‘Project Management Unit’. This unit was
managed by a UN appointed co-ordinator by the name Ms Margie Cook who
worked very closely with the Commission. Matters relating to training of
election personnel, the media, development of training materials etc
benefited greatly from this fund.
Although there were few cases of delay in the disbursement of funds
given that under the arrangements, some cases were to be referred to
New York for approval as per UNDP requirements, the aid project
enabled various voter education and training programmes undertaken by
the Commission and it’s partners to be effectively accomplished.
Voter Education Programme.
In readiness to the 2007 elections, a comprehensive ‘Community Based
Voter Education programme was carried out covering the whole country.
The program commenced with the training of trainers (ToTs) at a workshop
held in Nairobi in early September, 2007. The ToTs later trained
approved civil society voter education facilitators under the Election
Assistance Programme. This was complemented by training of the
Commission appointed batch of ToTs numbering (52), in early October,
2007. The Location based voter education providers (VEPs) were trained
at District level from
11th to 20
th
October, 2007. In total, 5102 voter education providers were
trained and deployed two in every Location, for forty days.
The training facilitator were required to develop weekly work-
plans for submission to the District Election Coordinator’s office for
the purposes of monitoring and follow up. The education providers
conducted door to door campaign, utilising religious gatherings, market
place gatherings etc to disseminate voter education knowledge. Materials
including posters, booklets, stickers, circulars, public address
systems, bill boards, banners, etc were extensively used
I believe that more than any other year, voter education activities were done extensively and satisfactorily.
Assistance by our development partners.
As mentioned above, a number of our development partners working
under the auspices of UNDP made generous contributions towards our
elections. They developed a programme dubbed ‘
Election Assistance Programme’ with the commitment to contribute money meant to assist in the funding of various electoral activities amongst which were;
- capacity building for the Commission’s staff.
- voter registration exercise.
- voter education programmes.
- Training media personnel with emphasis on impartial media reporting.
- Funding of Domestic Election Observers.
Some of the countries/organizations that contributed towards this programme included:
USAID, Denmark, CIDA, SIDA, Norway, Netherlands, DFID, UNDP, and EU.
Other countries including Finland, German, France, Thailand, etc had
during that period assisted especially in areas of capacity building
for the Commission. Their contribution to the electoral process of this
country is greatly appreciated.
Consultative meetings
Another activity undertaken in preparation leading to the 2007
General Elections involved the convening of various consultative
meetings, conferences and workshops which brought together the
Commission and various stakeholders. Key among these activities was the
General Elections Conference held from 13
th to 15th March,
2007. It was attended among others by political parties, civil
society organizations, the media, religious groups, NGOs Universities
etc. Three additional preparatory workshops involving Commissioners and
senior ECK staff were held prior to and following that conference.
These included the Windsor Golf and country club workshop from 4
th to 6
th December 2006, Holiday Inn workshop held from 31
st January to 2
nd February2007, and the Utalii hotel workshop held on 27
thto 29
th August 2007.
The idea was to involve as many electoral stakeholders on board the
electoral process as was possible, and to share information/ideas
that would contribute in perfecting the imminent elections
.
- V) Electarol Petitions
The laws of Kenya allowed individuals or parties that felt
aggrieved in an election to petition the courts for redress. This
provision must have been provided bearing in mind that where there is
political competition, there was likely to be misunderstanding leading
to squabbles which sometimes end up in violence.
Regrettably however, this line of action was rejected by the
aggrieved party following the 2007 disputed Presidential elections. The
reason advanced for this refusal was that they did not expect fair play
in Kenya’s Judicial system.
Incomplete electoral process cycle.
The failure by the aggrieved parties to petition the courts meant
that the electoral process as explained above was not allowed to run its
full cycle. It was brought to an abrupt end following the announcement
of the results This was indeed unfortunate. I believe the country’s
history would have been different had petition avenue been explored.
CHAPTER TWO
I now wish to recollect events leading to the election day, and up
the time the results were announced. Note that this is my personal
recollection and in no way reflects the collective thinking of the
Commission. I have attempted to recall what I personally observed as
one of the Commissioners charged with the responsibility of manning the
process and in no way
- I) The Electoral Commission of Kenya.
0rganization.
Eck was composed of twenty one Commissioners and the Chairman.
Commissioners were functionally assisted by the Secretariat headed by
the Commission Secretary. The secretariat officers were based both at
the headquarters and in the Districts.
At the headquarters, the commission organisationally had a plenary
committee composed of the Chairman, Commissioners and the Commission
Secretary.
This was the policy making organ of the Commission. It was assisted by nine standing committees as shown bellow.
- Liaison and General Purposes.
- Finance and Logistics Committee
- Electoral Programmes Committee
- Public Education and Outreach Committee
- Human Resource and Manpower Development Committee
- Electoral Research Committee
- Audit Committee
- Administration of Political Parties Committee
- Legal and Electoral Reforms
The commission performed its functions through these committees. They
were composed of Commissioners and staff drawn from relevant
departments.
Alongside these committees, ad –hoc committees were sometimes formed
to perform specific tasks. Such committees dissolved immediately
following the completion of the task.
Temporary Election Officials.
In the run up to the 2007 general elections, the Commission
recruited various categories of temporary staff to assist the process.
These were recruited on temporary terms with clear understanding that
their work would end after the given assignments were completed. Such
recruitment was undertaken by the Commission every time there was an
election or such similar exercise. The officials recruited fell into
various categories including;
- Returning Officers/ Deputy Returning Officers
- Assistant Returning Officers (Administration/Training)
- Presiding Officers /Deputy Presiding Officer
- Polling/Counting Clerks
- Policemen and other security personnel, counting officials,
- Peace committee members
- Other support staff as may be required
Recruitment and training.
All these categories were recruited and trained well enough to run election in an efficient manner. The
training
function focused mainly on equipping temporary or short term officials
with knowledge and skills necessary to perform various electoral
activities.
In particular, the training aimed at enhancing the capacity of the
officials to deal with new electoral challenges, technologies and
processes in order to realize a professionally managed free and fair
elections.
For the conduct of the 2007 General Elections, preparatory workshops
were held in Nairobi in March and late August, 2007. A core group of
trainers was t trained on the legal framework and election processes and
procedures. A cascade system of training was adopted starting with
seniors and ending up with polling clerks as last tier to undergo
training. The District Election Cordinators, (DECs,) Election Officer
(EO IIs,) Returning Officers (ROs,) Deputy Returning Officers (DROs)
and Assistant Returning Officers (AROs) were trained for five days in
the twenty one (21) designated ECK training centers. The officers
were at all times updated and/or briefed on emerging issues on
elections.
Presiding Officers (Pos) and Deputy Presiding Officers (DPOs) and
polling clerks were trained separately for a period of three days.
Security officers were trained and briefed alongside the POs/DPOs.
Constituency Peace Committee members from all the 210 constituencies in
the country were trained on lst December, 2007.
During the training, apart from relying on experienced Commission’s
trainers, a professional firm by the name South Consulting was hired by
the Project Management Unit under the auspices of the UNDP to
supplement the Commission’s efforts. The firm did a splendid job by
identifying suitable personnel and training them as
trainers before deploying them all over the country to conduct training of election officials.
It is therefore difficult to understand why some of our officers
appeared not to have measured to our expectations given the drilling
they went through. The causes for the inability to deliver
attributed to some of the Commission staff cannot in my view be because
of inadequate or lack of proper training.
The adage that one can take a horse to the river, but cannot make
it drink may help to explain the unsatisfactory performance attributed
to a few of our officers. On the other hand, I have not ruled out the
possibility that some officials, temporary as they were, lacked loyalty
to the Commission, and hence became vulnerable to external
ethnic/political party pressures ending up in compromising their trust.
Deployment
In all cases, Returning Officers (ROs) were deployed outside their
home Districts while their deputies worked within their home Districts
but outside their home constituencies.
The Presiding Officers (POs) and Deeputy Presiding Officers (DPOs)
were posted within their constituencies but outside their localities to
limit exertion of influence on voters as the POs are considered as
opinion leaders within their local communities.
In some instances, ROs were shuffled to different provinces or
districts in cases where the electorate or political leaders expressed
discomfort. In some such cases, the security of the officers in question
was in jeopardy. In all cases, effort was made to allay local voter
fear of our officials It was important that the Commission boost the
confidence of voters in the electoral process.
Work plan
. After the successful referendum of 2005, the Commission prepared
a detailed list of activities that were to be accomplished before,
during, and after the elections. This list was generally referred to as
the
‘Order of Events for General Elections’ it was operationalised in September 2006, and ran up to 31st May 2008.
In all, the activities covered the plan for capacity building for the
Commission staff, the review of constituencies, electoral areas, and
polling stations, the registration of voters, the continued review of
electoral laws with a view to introducing legal reforms where necessary,
the procurement and distribution of election materials, the recruitment
of staff, the training and deployment of election staff, the engagement
of the Commission’s partners and stakeholders who included Political
Parties, Government agencies, the media, the civil societies, religious
organization, and development partners, etc. All these activities were
carefully planned and their implementation closely monitored during
that period.
Eck’ engagement with the Government..
Immediately following the 2002 elections, the Ministry of Justice and
Constitutional Affairs attempted to make the Commission a department in
the Ministry. The Commission bearing in mind the provisions of the
Constitution regarding it’s independence, resisted that design. A
series of meetings were held with the relevant Minister. He finally
appreciated the Commission’s concerns/position and decided to let it
continue operating independently as before.
However, these cordial working relations with the Ministry continued
only up to the 2005 referendum. After the referendum, and for some
unknown reasons, the Commission’s working relations with the Ministry
deteriorated damaging the trust that had been build over a period of
time. It appeared that some inner cycle government functionaries were
uncomfortable with the Commission, falsely accusing and blaming it for
the loss of the referendum.
It was at about that time that a minister addressing the media said
that it was necessary to tame the Commission so as to avoid a situation
of it transforming itself into a rogue Commission. Allegations were
made to the effect that the Commission’s secretariat was full of one
ethnic group, a matter that compelled the Chairman to sent a full staff
list to the Ministry of Justice and Constitutional Affairs to show how
reasonably balanced the secretarial staff list was. It was not
therefore, surprising that later when a decision was taken to disband
the Commission, the entire Secretariat was bundled out alongside the
Commissioners, causing innocent members of the Secretariat to suffer
loss of their jobs. The group was thus condemned and sentenced unheard,
human rights consideration notwithstanding.. .
The Ministry further rejected improved recommended terms of service
for the Commission despite the fact that State House was supportive.
This strained relations meant only one thing, that serving
Commissioners were targeted for removal whenever an opportunity availed
itself regardless of their performance. It is also possible that the
powers that be were focusing on the Chairman, Mr Kivuitu’s imminent end
of his tenure. T he more he was negatively smeared and made to look
incompetent, the easier it would be to replace him. While replacement
of Commissioners was a normal practice, what became politically
contentious was the
alleged lack of
involvement/consultation between the appointing authority and other
political parties when appointing new Commissioners.
It may be recalled that the 1997 IPPG, reached an understanding to
the effect that Political Parties would in future be consulted in
matters relating to the appointment of Commissioners of the eck. The
appointment and replacements of commissioners in 1997 and 2002. was done
bearing in mind the agreement and spirit of the IPPG, the then written
law not withstanding.
It is worth mentioning here that IPPG was a product of reform
efforts fronted by reformists most of who later formed the NARK
government. One would have expected them to strictly observe the terms
of the agreement, however and surprisingly, some of the leaders who
indeed played a central role as reformers and worked tirelessly towards
the formation and implementation of the 1997 IPPG agreement chose to
totally ignore it once they were in power. .
Consequently, political parties complained bitterly regarding such
appointments, stating openly that they had no faith in Commissioners’
ability to impartially carry out a free and fair elections.
This became a pet subject during the subsequent campaigns effectively
damaging the Commission’s credibility long before the elections. The
less than cordial relations between the Commission and some government
operatives in some way filtered in the Commission affecting internal
working relationships of members.
In spite this poor working relationship between the Commission and
the parent Ministry, the Commission continued to get support from State
House. I recall an occasion at State House when the question of some
Ministers harassing of the Commission came up, the President’s
responded by urging Commissioners not to bother but rather continue
focusing on their work.
The need for a good working relations between the Commission, (it’s
independence not withstanding), and the Ministry of Justice and
Constitutional Affairs and by extension the Government need not be
over-emphasised. Cordial working relations is vital to the success of
most activities relating to the electoral process. It was therefore as
unfortunate as it was unexpected that when preparing for an important
national exercise such as elections, the requisite support from the
relevant Government department would be less than satisfactory,
..
.
- II) Countdown to 2007 elections.
Kenya approached the December 2007.General Elections deeply divided.
The divide can be traced back to a catalogue of previous broken
promises. These included
- the repeatedly talked about Memorandum of Understanding between
coalition parties of NARK which was allegedly ignored by one group
- .the campaign promise of putting in place a new constitution within a hundred days of NARK rule, this was not done.
- the campign undertaking by the incoming NARK government that every
effort would be made to ensure zero tolerance in corruption. It is
common knowledge that corruption continued unabated following the NARK
take over, remember Angloleasing, Triton, the Arturus, etc.
The initial goodwill enjoyed by the incoming Government suffered
as a result of these unfulfilled promises. Voters rejection of the 2005
manipulated constitution referendum was partly due to this loss of
confidence in the system.
The referendum left deep wounds in the two main contending parties.
Underlying all these is the historical antecedents linked to Kenya’s
fragile multiparty democracy. The goodwill that united Kenyans to oust
the KANU regime following the 2002 elections evaporated almost
immediately after the formation of the NARK government. The alleged
failure by a section of the party to observe the terms contained in the
Memorandum of Understanding exposed the deep rooted differences of the
an uneasy alliance gobbled up a few days before elections, and with a
single purpose of rooting out KANU and by extension, Moi and his
nominees. The party or better still parties lacked a common ideology, a
common political programme that would have helped to bind members
together.
.
What followed was a total lack of trust between members of the same
party. Accusations and counter-accusations became the order of the day.
Hate speech at campaign rallies became evident all over the country.
This became a political game that not only served to alienate party
leaders, but also their followers. It is indeed unfortunate that little
effort was made towards forging some form of unity of purpose as a
country.
The Akiwumu Judicial Commission and the Kiliku Parliamentary Select
Committee both of which had earlier made very useful recommendations
having identified some of the possible causes of unrest in the country
were left to gather dust on the shelves as leaders focussed on fighting
supremacy wars.
Political campaigns.
The 2007 General Elections campaign started immediately following the
referendum in 2005. The campaign were largely unregulated, and in a
number of cases violent.
You may recall the incidents including the one where Hon Ruto and Hon
Magara were chased from a political rally somewhere in Nyanza with
assailants wielding bows and arrows, another incident where a youth was
killed in Kibera while attending a political party rally, yet another
where Hon Orengo’s aid was killed and his (Orengo) car set on fire, etc,
the list is long.
Cases of hate speech and intimidation by politicians were well
documented by the Kenya National Commission of Human Rights. Of
particular concern was that in some places, certain groups of people
were referred to as ‘madoadoa’ (aliens).This had an effect of
indirectly calling for their uprooting, something similar to what had
happened following the introduction of multiparty politics, and in
particular during the 1992 and 1997 election. It was during this time
that the word majimbo was indirectly given the meaning of ethnic
cleansing.
Free and fair campaigns leading to free and fair elections is only
possible in an environment where political players know and have respect
for the law governing election campaigns. Every effort was made to
advocate and ensure an even playing field for all parties. This was
hardly so, during the 2007 campaigns. The Government took full advantage
of it’s incumbency.
Public servants were shamelessly deployed to strategise and campaign
for the ruling party, government transport including motor vehicles,
aeroplanes, were used during the campaigns. Efforts by the commission to
enforce the then electoral code of conduct regulations to control the
malpractices yielded no positive response owing to the known weaknesses
in the code of regulations governing elections.
As earlier stated, efforts made by the commission to make the code
an effective deterrent to such malpractices through legislation,
received no support from our legislatures.
Official campaign
As stated above, campaign stated almost two years before elections.
The programmed 2007 official election campaign timetable became a mere
formality. The stage for official campaign had been set to start at the
conclusion of party nomination of candidates.
Nomination of candidates by Political Parties posed numerous
challenges. It was witnessed all over the country that party nominations
were marred by chaos ending in violence erupted in several places. This
was largely owing to poor party organization capability
Party nomination rules and procedures were routinely breached. In
several cases, leaders of political parties directed who should be
nominated even in instances where such nominees had been rejected or
lost at party elections.
This failure to respect internal party democracy, and the will of
party members served to poison the campaign environment which was
already delicate. In many instances, those aggrieved jumped ship and
sought nomination on alternative party tickets. In other cases, the
chaotic nominations resulted in more than one candidate receiving party
nomination certificates in the same constituencies, putting the
Commission in awkward position. The Commission cleared candidates on
first come basis, a procedure which witnessed scrambles as candidates
holding parallel nomination certificates sought to beat opponents and
the legal deadline for submitting nominations. In several such cases,
candidates were accompanied by rowdy mobs making the work of the
Commission very difficult. The commission’s offices at Universary Towers
were at one stage invaded and forcefully occupied by an unruly crowd of
candidates and their agents, all bent on forcing the commission to
accept their parallel nominations. I believe the violent environment
that preceded the December elections was partly due to the fallout
occasioned by party nominations.
This period was also marked by widespread tension and intimidation
between rival party supporters. As campaigns intensified, there was
an escalation of election related violence in areas including Tana
River, Mt. Elgon, North Eastern, parts of Nyanza, parts of Rift Valley
and parts Central province. It was at about this time that
administration policemen were reportedly killed in Nyanza province on
suspicion that they were part of a government scheme on a mission to rig
elections.
The outbreak of sporadic violence led to the displacement of voters
in parts of Laikipia and Nakuru (Kuresoi and Molo) district long before
the election time. Consequently, the Commission was compelled to
gazette new polling stations in the affected areas. The media reported
several cases where women parliamentary aspirants were attacked and
discouraged from participating in the electoral process.
.. The appointment of new eck Commissioners was one of the issues
that drew a lot of criticism in the countdown to the elections. It was
made a petty subject of campaign in opposition rallies. Although the
new Commissioners were qualified in all respects, the alleged lack of
consultation in their appointment was perceived as advance preparation
to rig election. The effect of this orchestrated campaign was the
build up of disaffection towards the Commission. Several allegations
were leveled against the Commission including alleged printing of
parallel ballot papers, tampering with the electoral register,
biased hiring of election officials, etc.
It was further alleged that police officers based in Harambee House
had irregularly obtained voters registers and were involved in tampering
with them. This allegation was made despite the common knowledge that
voters’ registers were available for purchase by any interested party.
Sale of the voters’ registers was a sign of openness and transparency
yet eck was condemned for making these registers available.
It was further alleged that the 14th and 17th floors in Anniversary
Towers were being used to plan rigging. Again this was false given that
the said floors belonged to different organizations including — UNDP
(Project Management Unit) and IFES. both of who had openly assisted the
commission and it’s partners including the civil society the media etc
in capacity building relating to the electoral process.
It was further alleged that rigging was being planned at Nginyo
Towers. A spot check by the police and media the revealed that these
allegations were baseless. A further allegation was that issuance of
Identity Cards to eligible voters was selective and favored certain
areas on the basis of political alignment. On the contrary, issuance of
IDs had been speeded up in all areas, The Commission worked very
closely with the Registrar of Persons in the issuance of IDs to all
interested eligible voters.
All these allegations served to undermine the commissions credibility
to such low levels that by the time elections were held, every move by
the commission was suspect. The effect of this was increased tension
and anxiety amongst some voters during the countdown to voting day.
While such allegations are not uncommon during the countdown to
elections and have been made at all previous elections and in particular
since 1992, those of 2007 were intense considering what was at stake
and the total lack of trust between contending parties. This went a long
way to poison the minds of voters. This kind of rhetoric has not only
characterized all elections in the recent past, it seems to intensify
with the time
Issues arising from campaigns by political parties and candidates.
The 2007 General Elections presented one of the most closely and hotly contested polls in the
history
of Kenya. Alongside this, there was an avalanche of political party
registration with some registering only a few days before the
nomination day. As a consequent of the increase of parties, there was a
big increase in the number of candidates contesting elections.
These compounded with poor internal party organization and their
unpredictability, caused major administrative and logistical
challenges for the Commission.
A case in point is when the two major parties ie ODM and PNU failed
to submit the names of their nominated candidates in time as required by
the regulations. Legally the two should have been bared from taking
part in elections, politically and given the charged environment, such a
move would no doubt have plunged the country into serious violence.
A record 117 registered political parties fielded candidates. There
were nine (9) Presidential candidates, 2,548 Parliamentary candidates,
and, 15,332.civic candidates, see the comparison table below:
YEAR PRESIDENTIAL PARLIAMENTARY CIVIC.
2007 9 2,548 15,332
2002 5 1,033 7,009
1997 15 880 8,514
Apart from cases of electoral violence mentioned earlier, there were
also cases of zoning off of some areas on the basis of ethnicity. It is
important to mention here that when it comes to matters of security
relating to the electoral process, including the security for
candidates, voters, election personnel, election materials and the
like, the Commission relies exclusively on established security agents,
and in particular, the police. Ideally, the police are expected to
apprehend anybody found breaking the law, election campaign
not-withstanding. In practice however, leaders and especially political
leaders in Kenya operate as if they were above the law and, routinely
break them with impunity.
In a way, our security agents have encouraged this especially during
electioneering period when electoral crimes are dismissed as (
mambo ya siasa,) political and hence require no action.
The commission made every effort to bring the law enforcement agents
on board in the run-up to the 2007 elections. Eck convened joint
meetings with the Office of the President, the office of the Attorney
General, and the Department of Police in an effort to strategize on
ways and means of keeping law and order during the campaigns, which
hitherto, had been known to be rowdy and in several cases violent.
We were given all assurance that necessary mechanism were in place to
check on lawlessness, and that State Counsels in the Districts would be
advised to expedite the hearing and determination of cases relating to
electoral malpractices. The commission on it’s part spared no effort in
educating and thus campaigning for peaceful election. It intensified
national media campaign (both print and electronic), with the focus
on cautioning Kenyans against electoral violence, bribery, vote
buying and selling, etc. In all cases, voters were advised to guard
against promoters and/or involvement in such malpractices. The voter
campaign prgrmme was expensive in terms of resources invested ie
manpower, materials, and time. It is indeed disappointing that the
desired results were not realized.
Kenya’s evolving political culture and awareness
Since the first multi-party elections in Kenya in 1992, the level of
political awareness has risen considerably. This has partly been as a
result of an evolving political culture. Unlike in the past,
more Kenyans in the middle class appear to be taking interest in
politics. The repeal of section 2A of the Constitution which gave room
for re- introduction of multiparty politics in the country appear to
have stirred this re awakening. In effect, this led to the
proliferation of political parties with a consequent of increased
political/party competition.
Additionally, the versatile civic education campaign run by the
Commission and other stakeholders including civil society groups,
religious groups, the media, etc. aroused political awareness in many
people most of whom had since lost interest.
The expansion of democratic space since 1992 has unshackled political
debate while presenting new challenges on how best to manage negative
elements like hate speech in a country polarized along ethnic lines,
regional and political affiliation. Increased political consciousness
and civic awareness has led to a growing number of people keen and
involved in election matters.
In some cases — especially for the youth — this increased
consciousness has made many vulnerable to manipulation and
exploitation by politicians not only as a means of getting their vote
but also as a force to be used to coarse and intimidate those perceived
to be their opponents. Lack of employment for this particular group has
contributed to this sad development. In the run-up to the 2007 General
elections, politicians paid special attention in targeting the vote of
the youth. It was not surprising that later the youth were among the
most visible participants and victims of violence following the outbreak
of the post-election carnage.
Leadership and Violence;
As mentioned earlier, in the countdown to the General Elections, the
Commission held several consultative meetings with members of
registered political parties urging them to shun and desist from any
activities or pronouncement that could lead to violence. The
Commission’s appeal notwithstanding, incidents of violence still broke
out mainly involving supporters of rival political candidates and
parties. Eck received several complaints on election violence. It
investigated some cases involving candidates and as highlighted in this
report, imposed penalties on those in breach of the electoral code of
conduct.
Electoral violence was in many instances a result of politicians
inciting violence against their rivals. Intimidation of rivals through
use of force was in many cases not frowned upon and indeed some
politicians saw it as a necessary tool in advancing their political
ambitions. It was clear that most political parties lacked structures
which would have been employed to vet and discipline their candidates
and supporters predisposed to violence. Under the circumstances,
individual party candidates were left to operate freelance with some
breaking the law at will.
Parties appeared unable to entrench a strong and enabling value system that would have fostered tolerance and abhorred violence.
Enforcement of the Electoral Code of Conduct by Eck
It was a legal requirement that political parties fielding
candidates in any election sign a code of conduct obliging them to
adhere to the terms of conduct therein. In the 2007 general elections,
all participating parties signed the code of conduct. Presidential
candidates signed a decree requiring them to preach peace and to
denounce anyone from their party seen to promote violence during the
campaigns.
The commission also formed an ad hoc committee to enforce the electoral
code of conduct. The committee was tasked with receiving complaints on
violations of the Electoral Code of Conduct. The Committee received
reports and complaints from candidates, voters, political parties and
civil society groups. Upon receipt of such complaints, the committee
summoned the accused political parties, candidates or voters involvement
for interrogation.
. The Committee studied the complaints on a case by case basis It
heard from the complainants and witnesses who included Returning
Officers, candidates, their supporters and the witnessing voters. Those
complaints that did not disclose enough evidence for action were
dismissed . Penalties were imposed where evidence established breach of
the code. Although the police were summoned as witnesses every time
there were such cases given their first hand knowledge of the supposed
crimes, they failed to show up for some unknown reasons.
The committee handled cases from the following areas:
Mathira
Malava
Ikolomani and Kilgoris.
The committee’s decisions on the respective complaints were read out in
the presence of the complainants, the candidates, observers and media.
The accused were given ample time to give their side of the story, some
of them represented by lawyers. After weighing the evidence presented by
each party, the committee found two candidates guilty and fined them
Kshs. 100,000 each. The other three candidates with less serious crimes
were given verbal warning as provided for in the Electoral Code of
conduct.
As if to demonstrate the ineffectiveness of the then code of
conduct, no payment was ever received. This was one weak area in the
code which the Commission had earlier identified and recommended for a
review. It was then felt that the prevalent impunity during election
campaigns could only be timely checked if the Commission was empowered
to effectively enforce the regulations.
.
Security hot sports during the 2007 General Elections
Security concerns in some parts of the country such as Kuresoi, Molo,
Tana River and Mount Elgon led the commission to set up a security
committee whose purpose was to monitor matters of security concern and
their effect on the planned elections. The committee consisted of
Commissioners and staff who visited and held discussions with various
local security agents and the public. They identified security risk
zones and reported back on the measures needed to ensure those affected
exercised their right to vote. In Baringo, East Pokot, and Samburu,
the teams found that some would be polling stations had been deserted
due to raids. Other places visited included,
Tana River District,
Mt. Elgon,
Molo, and
Kuresoi,
The main security concerns identified in the above named areas included
cattle raids, tribal clashes grounded in political zoning, land
disputes, etc.
As a result of this instability, the Commission made special voting
arrangements covering all affected areas. Registered voters were
facilitated to vote in areas where they had moved to in the case of
Baringo East, Baringo Central, Samburu and Mount Elgon. Parallel polling
stations were created in concentrated camps in Kuresoi constituency.
Media participation
ECK accredited a total of 2,964 local and international
journalists to cover the 2007 General Election. The journalists were
given extensive briefings at the K1CC Media Centre by the Chairman of
ECK and Commissioners.
Additionally, and prior to this, the commission had given extensive
training and orientation covering the electoral process. However and
in particular, the commission emphasized the need to act professionally
and more so impartially when covering elections given the apparent
polarization, zoning, ethnic character of Kenya’s politics.
The commission working in conjunction with the media Council and the
UNDP (Project Management Unit) organized country wide workshops in
provincial centers aimed at achieving this goal.
At the stage of accreditation however, the commission noted with
concern the big number of journalists recommended for accreditation. The
concern was that, based on the large number of accreditation requests,
some media houses may have sought accreditation for additional
non-professional media personnel. This opened the question as to whether
those accredited to relay information to the public on such a momentous
national exercise were sufficiently trained for the task. It is a
concern that became more apparent when it emerged that different media
houses were posting different sets of updates causing confusion and
anxiety amongst listeners and viewers. Little attention was made to
seek verification from the Commission until the till end of the process.
At that late hour, some media houses opted to suspend further
announcements and thus waited for results verified by the commission.
Since the 2005 referendum, the role of the media in an increasingly
polarised political environment has continued to draw tremendous
interest and attention. In 2005, the media — especially the vernacular
radio stations (but no less the mainstream media too) — were accused of
playing into the hands of politicians. Some ended up playing a divisive
and partisan role in the raging debate on the constitutional referendum.
The outcome of the referendum left the country deeply divided, but
happily, there was no notable violence.
This political division developed into bitter rivalry galvanized by
ethnic loyalties. Aware of that type of environment , it was not
certain whether the media had taken any lessons from the preceding
period to better anticipate and hence play a more responsive and
constructive role in a highly polarized political environment. A more
balanced, accurate, impartial and fair act by the media would in my
view have lessened the animosity that was taking root in the country.
Cases were reported of some politicians and their followers vowing to
win at all cost with little inclination towards conceding defeat.
This only served to add fuel to the raging fire. In 2007, the media
came under close scrutiny regarding its professionalism and adherence to
ethical standards especially after the outbreak of violence both before
and after the polls..
The upsurge in popularity of call-in talk shows was an area of concern.
There was limited opportunity or attention to filter the views of
listeners some of whom purveyed hate speech and incitement. In several
cases some media houses carried or aired material that painted the
Commission in bad light effectively discrediting in advance.
Election Observers.
Observing elections has become a worldwide integral part of the
electoral process. The commission regarded observers as key partners
in the exercise. Consequently, the Chairman went out of his way to lobby
first for funds to finance local observers, and secondly for the
Government to invite regional and international organizations, and
governments to participate in elections as observers. Some leaders in
Government did not take this move kindly.
The then law in Kenya only allowed for election observers as
opposed to election monitors. The difference between the two is that
while observers observe without expressing their views or concerns about
the integrity of the elections openly, (they can discreetly note any
discrepancies in the process and report such concerns to the officer in
charge but more so to the electoral authority) the monitors can
intervene in the process and point out any noticeable shortcomings
immediately.
The commission accredited both local and international observers for the 2007 elections.
Local observers under KEDOF were over 1700 .They were deployed as day
election. Additionally, 454 constituency observers were similarly
recruited. Alongside these, we had observers from the Commonwealth,
African Union, European Union, East African Community, almost the entire
diplomatic core based in Nairobi etc. The accreditation granted them
authority to access eck offices, polling, counting and tallying
centers for observation purposes.
It was noted however, that while the majority of the observers kept
within the guidelines and briefs given by the Commission, some acted
arbitrarily showing open bias towards some parties. A case in point
is when some observers from the European Union were seen shouting in
protest against the announcement of the result at the tallying center
at (Kenyatta International Conference Center) KICC. The press conference
given by their leader on 31
st December 2007. at the Hotel
Inter- Continental did not only go against the observer’s guidelines,
but in my view, served to add fuel to the burning political environment
in the country.
The role played by some ambassadors accredited to Kenya also left me
wondering whether they were observers or monitors. At a critical moment
at KICC, a number of us (Commissioners) complained aloud that the
Chairman was spending too much time with the diplomats headed by the
American Ambassador who appeared to be patronizing the exercise. I
have elsewhere in this article appreciated the assistance extended to
the Commission by various development partners, however, this in my
view was not a license for them to prefect our internal activities. I
have served this country as an Ambassador and believe I know pretty
well the limits of diplomats when it comes to dealing with internal
matters.
CHAPTER THREE
Working arrangements at the KICC
Some time prior to our moving to KICC, the Commission’s technical
committee , worked out a duty roster for both the Commissioners and
members of the Secretariat. The majority of Commissioners were expected
to first supervise the voting process in their respective Provinces,
and thereafter, join the team at the Headquarters to monitor the
tallying done by the secretariat followed by announcing the final
results to the media, observers and agents who were assembled in a hall
at the KICC. Prior to this, results were received from the Returning
Officers by designated members of the secretariat.
The two were then required to jointly verify the results by checking the
arithmetic
accuracy of the figures provided in the respective forms. In cases
where errors were identified by eck verifiers, Returning officers were
required to make corrections and initial/sign accordingly. Note that the
Returning officers were the
only officers authorised to make such corrections as they would be
personally held responsible in case of petitions and/or complaints arising thereafter.
The secretariat at KICC was functionally divided into two main groups.
The first group was responsible for receiving returns from Returning
Officers, and verifying them. It was further divided into ten teams,
each dealing with twenty one (21) constituencies. In every team, there
was a team leader who doubled up as a verifier of information
received from Returning Officers.
The second group was responsible for preparing computer printout
using the information supplied to them by team leaders of the first
group.
Team leaders were assisted by three clerks plus filling
assistants and a photocopy assistant. The teams were provided with all
necessary logistical materials including stationery, telephone lines,
fax lines, and particulars of the relevant Returning Officers they
were expected to deal with. The teams were trained and drilled on the
procedure for three days. They were provided with checklists for
reference whenever necessary.
Officials in group one were required to receive
provisional
results through fax and or telephone. (Adequate security measures were
in-build in the conveyance procedures to ensure the reliability and
correctness of the returns. It was absolutely necessary to ensure that
only authorised persons accessed the system).
The information thus received and verified was then passed over to
the computer group for preparing computer printout. These were then
sent back to verifiers for further scrutiny before passing them over to
the Overall Coordinator who then passed on the printout to commissioners
on duty for announcing.
Monitoring of the voting.
On 27
th December 2007,Commissioner Raiji and I were on
duty at the KICC. We spent the day monitoring voting activities in the
country. We were informed about the late opening of voting in a few
stations, in such cases, the Returning officers were required to recover
the lost time by extending the voting time.
There were a number of cases where a few ballot paper booklets
were found in wrong places. In such cases, we made urgent arrangements
including the deployment of Kenya Air-force planes to pick and forward
the said booklets to their rightful pooling stations. In all such
cases, election materials were under strict custody of the Commission’s
staff. In some polling stations in Nairobi, our staff appeared
overwhelmed by the large voter turn out. In response to this, we quickly
arranged for senior Commission officers attached to KICC, and who at
that particular moment had very little work to drive around in the City
and provide assistance as and where necessary.
These and other minor teething challenges were quickly solved in
time to allow for smooth voting. . At the time of the close of the
voting, all appeared to have gone well. Indeed, no serious incident
affecting the voting exercise was reported. I understood this to mean
that our field officers had managed stage one of the election
successfully and were now moving to the next stage which involved the
formalities of closing the stations followed by counting, tallying of
votes and relaying the results to the Constituency tallying centre.
Presiding Officers were trained on how to close their stations,
and thereafter to arrange for the counting. Accordingly, appropriate
arrangements were required to provide room for the agents, observers,
and any other authorised persons who required to witness the counting
and the tallying of results. It was a requirement that after the
counting, and loudly announcing the results to the public, relevant
forms were to be completed as per the results, and signed by the
presiding officer and the agents present. However, it is worth
mentioning here that experience has shown that in many cases, agents,
especially those of unsuccessful candidates become uncooperative
and refuse to sign. Such refusal to sign the relevant forms do not
invalidate the forms in question.
After signing the forms, the Presiding Officer was required to pin
one copy of the results form in a place accessible to the public for
viewing. The rest of the results were then relayed to the Returning
Officer at the constituency tallying centre using the quickest means
possible.
At the constituency tallying centres, Returning officers like the
Presiding Officers at the polling stations were required to make
provision for agents, observers and other authorised persons who wished
to witness the tallying.
Once the results were received, the RO was expected to announce to
those present, the name of the poling station and the results as
presented by the presiding officer. Given that results were brought in
at different times, the tallying was to be done progressively in keeping
with the inflow, starting with the Presidential then Parliamentary,
and finally Civic candidates.
After receiving and tallying results from all poling stations in the
constituency the RO was required to publicly and formally announce all
results and declare the Parliamentary and Civic winning candidates.
Immediately thereafter, he/she was required to call the Commission’s
secretariat at the KICC tallying centre to give the
provisional results of
the Presidential candidates. Immediately after announcing, the same RO
was expected to move quickly and personally deliver all the results to
the national tallying centre at the KICC using the quickest means
available.
Tallying at the Constituency Level.
According to reports received from a number of returning officers,
the exercise of tallying at constituency level was faced with several
challenges.
, A case in point is one in Kilgoris constituency, Transmara
District where we had total breakdown of law and order. According to the
RO’s report, he was only able to tally votes from 100 out of the 157
polling stations. The moment he declared the results of the first
100 stations received and counted, a group sensing defeat invaded the
tallying hall wielding swords and rungus, destroying election materials
including completed tallying forms. Eight boxes containing voting
materials from eight polling stations were similarly destroyed.
There was a shoot out by the police resulting in casualties.
Meanwhile, presiding officers who had yet to deliver their results were
blocked along the way and were unable to proceed for fear of their
safety. The consequent of all these disorder was the cancellation of
election in that constituency.
In Kamukunji constituency, [Nairobi] there were riots by rival
groups accusing each other of rigging. Ballot boxes were broken and
election materials destroyed.
In Kajiado North, the Returning officer observed that some presiding
officers had taken sides and were acting as agents. Violence erupted
during the tallying process with supporters of candidates damaging
voting materials and for awhile, holding the RO hostage. There were
several other cases of disruptions by candidates and or their agents
which were reported to us.
In several cases, the RO were forced to ask for security
re-enforcement at the tallying centres to control the disorderly and
rioters gangs. As a results of all these events counting and tallying
took a long time to complete, causing unexpected delay in relaying
results to the headquarters at the KICC. It was partly due to this
delay that anxiety and emotions of Kenyans all over the country and
more so at the KICC were driven to uncontrollable levels.
Provisional vis-a-vis Certified Results
The Kenyan law recognised only results that were
certified
and delivered to the tallying centre by returning officers, using the
statutory forms. However, as earlier mentioned, it took a long time
for the returning officers to travel from their respective constituency
tallying centres to the national tallying centre in Nairobi. It was as a
consequent of this challenge that the Commission decided to introduce
the use of telephone and faxes as a faster means of relaying
provisional
results to the Headquarters. This was to be done immediately after
announcing all such provisional results at their centres, including
those the President obtained in their respective constituencies.
Copies containing the same results were to be displayed for public
viewing. This sequence of events was meant to ensure that the results
supervised by party agents and other stake holders and announced to the
public at the constituency tallying centre, were the same results that
were forwarded to Nairobi.
The media meanwhile and dutifully relayed this information to the
public, although in some cases, the figures thus announced were
inaccurate.
The results that are received using this method are
provisional,
and this information was made very clear to all observers and the
media during their briefing. Ideally, there should be no difference
between the two ie
provisionaland
certified
results, however, occasionally the verifiers find arithmetical errors
in the returns, and where such errors are detected, the corrections
are made by the Returning Officer being the
only person authorised to make such correction and sign accordingly.
The Long wait.
According to our estimate, we expected the first batch of results to be at the KICC starting midnight of 28
th
December 2007. By that time, it was expected that places like Nairobi
with less transportation challenges would have completed counting and
tallying in readiness for KICC.
The night of 28
th December passed without any sign of results. It was not until mid morning of 28
th
December that the first batch of results were received. Thereafter,
results continued trickling in, but at a disappointingly very slow pace.
The situation was worsened by the fact that the media was ahead in
announcing results from some of the constituencies, however, as
mentioned earlier, some of them were not accurate. The deafening
silence from our Returning officers despite the fact that they had been
facilitated to keep the tallying centre at KICC fully informed
regarding the tallying progress in their respective constituencies was
unsettling.
It was a matter of great concern not only to us in the Commission but
also to observers and party agents who had by then jammed the KICC. I
believe, it was as a consequent of that un-explained delay/silence that
frustrated and prompted the Chairman to publicly reprimand his field
officers.
The morning of 29
th started with acrimony. There were
bitter exchanges between Commissioner Kigano who was on duty and a
section of presidential/party agents who were at the KICC monitoring the
returns. It become clear that people were becoming impatient with the
slow pace at which the results were coming in. His efforts to offer
explanation fell on deaf ears. The tallying centre was by that moment
beaming with political activists each group highly suspicious of the
other. They took advantage of the presence of the media to make
pronouncements some of which bordered incitement. Although the security
was tight, it was nonetheless careful not to provoke any group or party
some of who were out-rightly unruly.
Again, this was the day when the margin between President Kibaki’s
and Hon. Raila’s counted votes started narrowing as shown below;
Hon. Kibaki Hon. Raila.
29/12/2007 at 2:26 am 2,101,849. 2,692,614.
29/12/2007 at 11:12 am 3,416,139. 3,726,247.
29/12/2007 at 2:27 pm 3,842,051 3,880,053
30/12/2007 at 8:26 am 4,510,955 4,313,262.
At some point on 29
th December, agents refused to listen
to Commissioners announcing results and instead demanded that the
Chairman Mr Kivuitu should avail himself in the hall to announce the
results and respond to a variety of issues. The most contentious issue
at that moment was the discrepancy between the provisional results
earlier announced and the certified results submitted by the ROs.
Discrepancy in returns.
. Cases in point included;
Constituency Provisional Certified
Juja Kibaki- 48,293 100,390
Raila – 6,081 13,752
Kieni Kibaki 54,377. 72,054.
Raila—- 556. 580
Lari Kibaki 41,213. 49,276.
Raila 266. 457.
Limuru Kibaki 40,788. 48,384.
Raila 3,144 2,934.
The RO for Juja explained that when he gave provisional results, he
had only tallied about 40% of the total polling stations in the
constituency. The Kieni and Lari RO explained that their computers
failed to capture all polling stations. As a result, the provision
results relayed to KICC were minus voters from 22 polling stations for
Kieni and 8 stations from Lari. The final scrutiny made by the
respective Returning officers manually revealed the anomalies which
were corrected accordingly. There was also a case of Molo, where an
impostor assumed the position of the RO and claimed that the certified
results announced were wrong. an impostor peddling lies at.
With a few exceptions which were pointed out following the audit which was carried out on the night of29
th December, from about 9 pm to about 6am, it was confirmed by Returning Officers, that the
certified results submitted were the same results as those
announced
at their respective tallying centres prior to their coming to Nairobi. I
have no evidence that unlawful changes were made to the returns at the
KICC as alleged in some circles.
The chairman made every effort to explain the circumstances under which
provisional
results earlier announced to agents and observers differed from the
submitted certified results. All such explanation fell on deaf ears.
It was at this stage, and in order to respond to the growing
suspicions, that it was decided to conduct an audit of all results so
far received. This was done throughout the night of 29
th December 2007. This verification exercise started at about
8.30.pm and run up to about 6 am the following day.
The audit.
The audit team was composed of the following;
PNU
- Hon. Martha Karua
- S. Nyamweya.
ODM.
- Hon. J. Orengo.
- Dickson Ogola.
ODM-K.
Fred Muteti
KEDOF
- Hassan Shanman
2.Nassir Ahmed.
ASSOCIATION OF PROFESSIONAL SOCIETIES IN E.A.(APSEA)
- Julius Melli.APSEA.
- Ben SihanyaLSK/APSEA.
ECK COMMISSIONERS.
- Raiji
- J. Matagaro
- D. Ndambiri.
- J. Sitonik
- S. Maugo
- P. Tutui.
- SecretaryJemimah Keli.
The aim of the exercise was to analyse the provisional results
announced by the commission at KICC in comparison with the results
contained on Form 16, which had earlier been announced by Returning
Officers at their respective tallying centres. Among the issues raised
during the audit were:
- Concern regarding missing Form 16 in some constituencies. This
turned out to be a case of misfiling. A further scrutiny carried out
immediately thereafter found all the forms with proper entries.
- Concern regarding discrepancy between provisional results and
certified results in a few constituencies. I have already referred to
the explanation given by the respective Returning officers.
Additionally, there were a few cases with arithmetical errors, and such
were corrected at the verification stage.
- Concern regarding missing signatures for agents on statutory forms
in some constituencies. As explained earlier, the agent’s signature was
useful but not mandatory. It has been observed that quite often, agents
of unsuccessful candidates in frustration refuseto append their
signatures.
- Concern over what looked like abnormally high % voter turn out in
some regions especially in Mt Kenya and Nyanza regions. This is one area
that needed scrutiny. Unfortunately, the circumstances following the
announcement could not allow us to undertake such an exercise.
- Concern over no returns of some constituencies. This was caused by
serious insecurity witnessed in some part of the country at that time,
some RO’s were unable to travel by road. Arrangements had to made to fly
them to Nairobi on 30th December.
- Concern over failure on the part of some RO’s to counter sign
official documents where arithmetical changes were effected. This was
unfortunate and indeed irresponsible on the part of those concerned.
According to the audit results however, the changes in question which
were not signed would not have affected the final results.
On the morning of 30
th December at about 8 am, Commissioners held a brief meeting to review the outcome of the audit.
In response to item one above, Commissioners tasked themselves to
crosscheck with the officers the information received from the audit
that some forms were not traceable during the audit.
After crosschecking, it was reported that all forms were available
except for those from areas where Returning Officers were experiencing
travel problems owing to outbreak of violence.
It was possible that some papers were misfiled and not readily
traceable given the urgency and the very limited time within which the
audit team was expected to complete the exercise. Commissioners with the
assistance of desk officers easily traced all forms.
In regard to item five regarding no returns, arrangements were
quickly made to fly Returning Officers reported to have been stranded
owing to violence that were being witnessed in some parts of the
country. Their returns were included in the final tally.
Meeting with Political Parties.
While Commissioners were working on issues raised above on the morning of 30
th
December, ODM leaders came to our offices to register their complains
arising from the previous night’s audit. The Chairman, Mr Kivuitu
while accepting the request to hold a meeting, he advised them that a
discussions relating to the audit could only be held in the presence of
all political parties concerned. Consequently, a meeting was quickly
arranged at the KICC VIP lounge. With the exception of President
Kibaki and Hon. Raila, all other top political leaders from the
contesting parties attended the meeting.
At the meeting, Mr Kivuitu informed those present that the Commission
was awaiting certified results from a few remaining constituencies
before completing the tallying and thereafter make the final
announcement.
He further said that the meeting was convened following the concern
expressed by ODM regarding the outcome of the audit. He nonetheless,
advised all parties that according to the law, once a portion of the
remaining results were received, and the Commission established that
whatever was yet to be received would not make a difference considering
the total votes realised by the leading candidate, the Commission would
legally have no option but to announce the results as received and
verified by the Commission’s staff in the presence of Returning
Officers.
He then asked Commissioner Raiji who was one of the Commissioners
representing the Commission during the audit to read the minutes
recorded during the exercise. Commissioner Raiji read the minutes as
recorded by him.
ODM was then asked to present it’s case since the meeting was
convened following their complains. It was at this stage that all hell
broke out. ODM wanted the announcement of the results withheld until
after all the issues raised in the audit were dealt with. On the other
hand, PNU vigorously objected to any further delay once all the results
were submitted. Attempts by the Chairman to control the meeting came to
nought. Unprintable accusation/abuses were traded between our leaders.
Physical confrontation seemed imminent. The well intended meeting seemed
to head nowhere. An opportunity to find a way forward acceptable to all
parties and which could have possibly saved the country from the chaos
witnessed thereafter was lost. Sensing trouble, the chairman called
off the meeting.
Was there a deliberate attempt to delay and or accelerate the results announcement?
.The 2007 General Elections were held on 27
th
December. The final results for the presidential vote were announced on
30th December. It took four days to announce the results. As noted
earlier, the last certified returns from Returning Officers were
received mid morning of 30
th December 2007..
A comparison of the dates of announcement of the presidential results
in the previous general elections of 1992, 1997, and 2002, as shown
below may serve to clear the misleading notion that there was a
deliberate attempt to delay or hurriedly announce the results, depending
on which side of the divide one was.
- The 1992 General Elections took place on 29th December 1992 and
the final presidential election results were announced on January 2,
1993 which was the fifth day.
- The 1997 General Elections took place on 30th December 1997 and the final presidential results were announced on 4th January 1998, which was the 6th day.
- The 2002 General Elections took place on 27th December and the final
results were announced on December 29, 2002. This announcement was made
before all the Forms 16 were received by the ECK. This was made
possible given that as at that moment, the total outstanding balance of
registered voters when finally counted, would not have altered the lead
position of the winning candidate given the huge margin already
established
Additionally,
the strong opponents conceded defeat long before the tallying was
over. This was a commendable action the first of it’s kind in Kenya’s
history.
Announcing of the results.
Immediately after the chaotic meeting mentioned earlier,
Commissioners were informed that Returning officers from Bondo,
Kapsabet, Bomet, and Sotik, who had earlier been stranded owing to the
outbreak of violence, had since been airlifted to Nairobi and submitted
their returns for processing. By early afternoon, the Commission had
the legally required returns to determine the winner of the election.
Accordingly, the Chairman prepared his announcement speech and
moved to the hall accompanied by Commissioners for the announcement.
Prior to announcing the national final results, the chairman tried
amidst shouting to announce the returns from constituencies whose
results were received that morning. It was at that juncture that one of
the ODM party leaders rose to dispute the results of Molo
constituency. He went on to introduce someone as a returning officer
for Molo, and further alleged that, the said officer was similarly
challenging the Molo results. According to this man who turned out to
be an impositor,the results Mr Kivuitu had just announced for Molo were
different from the results he had as a Returning officer.
This single act set the hall aflame. No amount of persuasion could
calm the agitated agents from both the PNU and ODM camps in the hall.
While PNU members were demanding the announcement, ODM demanded the
postponement until after all the queries raised in the audit and the
fresh Molo matter were dealt with. It was a stalemate with nobody ready
to listen to the other. The situation got out of hand with some agents
jumping on the stage where Commissioners were sitting threatening them
with physical violence. All the cursing, shouting, condemning,
denouncing, etc by our political leaders were being relayed live by the
media to the Kenyan public. It was at that juncture that the security
agents moved in and quickly whisked Commissioners to safety.
Commissioners thereafter reconvened at the VIP lounge at KICC. The
Commission secretariat were tasked to make fresh arrangements for the
announcements of the results, the action which had aborted following the
chaos earlier witnessed in the main hall. Every effort was made to
assemble the media before announcing.
It must have taken something like one hour of waiting while our officers were making frantic effort to assemble the media.
The later allegation that only Kenya Broadcasting Corporation covered
the event were just that ‘allegation. Our officers were directed to
inform the media that the Commission was moving to the lounge, the same
place where the morning meeting had been held to make the announcement.
I believe if some media houses missed the event, it was not for lack
information but rather that at that same time ,ODM which seemed to
attract more media attention was at the KICC open grounds denouncing the
would be results.
Did eck have any discretion to delay the announcement?
Commissioners met briefly to look at the final results as submitted
by the tallying officers before accompanying the chairman to the media
centre. It was ascertained that the results in the Commission’s
custody as at that time were sufficient considering the provision of the
law, to enable the Commission to move to the next step which was to
announce.
The law did not give commissioners any discretion in the matter. As
mentioned earlier, once certified results are surrendered to the
tallying centre, the only changes authorised by the law are those caused
by arithmetical errors, and while verifiers could point out such
errors, corrections could only be made by the
relevant Returning officers. At that stage therefore, Commissioners had a legal obligation to announce the tallied results as provided.
Indeed every effort was made by Commissioners to explain to ODM
leaders the legal inability on the part of Commissioners to delay the
announcement, the issues raised by them not withstanding. According to
the law, the Commission’s hands were tied and the matter could only be
looked at by the Court of Law. That was the law of the land
legislated and enacted by our law makers. Consequently, and given the
prevailing circumstances, the Electoral Commission of Kenya had only
one option, and that was, to announce the election results as submitted
by Returning officers.
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