CHILOBA: We’re getting ready to hold the repeat election according to court’s ruling

Sunday September 10 2017

Ezra Chiloba. The CEO of the Kenya electoral

Ezra Chiloba. The CEO of the Kenya electoral agency Independent Electoral and Boundaries Commission (IEBC). PHOTO | EMMA NZIOKA | NATION 

By PAMELLA SITTONI
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The besieged CEO of the Kenya electoral agency Independent Electoral and Boundaries Commission (IEBC) spoke to The EastAfrican editor Pamella Sittoni on what happened in the August 8 polls and the preparations for the October election.

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So what’s going on at the IEBC?

A lot of things have been happening. Remember after the elections we had the petition in the Supreme Court against the presidential election and we were all waiting for the decision, which finally came last Friday. So we've been reflecting on the implication of that decision for purposes of fulfilling our mandate.

Now, we are busy planning for the fresh presidential elections as ordered by the Supreme Court.

Everybody has made their views on the Supreme Court ruling known. What are your personal views on this ruling as the person who conducted this election?

One is that it's the last thing we ever expected, in terms of the outcome. I think we worked very hard to win the case. But the Supreme Court has pronounced itself and ordered us to run a fresh election.

Our view is that we have a constitutional mandate to carry out and to respect the Supreme Court judgment. If you look at any working democracy, you find that institutions such as the court, parliament and the executive, and independent institutions work to check each other.

We had our day in court and, for is it is therefore to respect that order of the Supreme Court and hopefully be able to meet the standards that are set out.

We have less than 60 days to have a fresh election, but we still don’t know yet what we need to improve on for purposes of ensuring that the next election meets the threshold that was set by the Supreme Court.

So, we are waiting for the detailed judgment and reasons as to why the presidential election held in August was set aside for us to determine the areas for improvement.

Personally, the critical question I'm asking myself is - and maybe it will be good for constitutional law and students of politics -- : How come the best run the election was nullified? The detailed judgment will give us an insight into this.

Do you agree with the ruling or do you just accept it like everybody else?

In a democracy you have to respect law and order. In this case, the judgment has been issued by a constitutional institution, and our responsibility is to respect it in as much as we may have different views about the details.

Also remember that the judgment was by a majority, with two judges giving dissenting opinions. It only means that, with the same facts and arguments you could actually reach different outcomes. Only in this case we had a majority seeing it a little bit differently from our point of view. We have to respect that.

All three findings the court made were an indictment on IEBC, which you head. Do you think this is an extension of the indictment on you as a person and the way you conducted these elections?

We do not know yet the reasons the court reached that decision, and that’s why it is important for us to have a detailed judgment.

Because, reading the judgment as it is, we still remain baffled in terms of, from a substantive point of view, what actually went wrong? It's that substance that we need to understand.

Our suspicion is that most of it could be about processes, in terms of results transmission, and we are keen to know the details. I wouldn’t say it’s an indictment on the individual because this responsibility was not for an individual. It was an institutional responsibility, and that's why we had the first respondent being the commission.

From where we sit, you must look at it in totality of an institution, because my role is very specific, but that role cannot contribute to the ultimate result that Kenyans expect, unless we work together.

One of the commissioners is on record as saying that you and the team that reportedly mismanaged the elections have refused to resign. Is this a fact?

There has been nothing like that at all.

Have you been asked to resign?

Not at all. No one has been asked to resign. The position of the commission has been that, let us wait for the detailed judgment from the Supreme Court to understand what needs to be improved upon, then we move from there.

But the question about resignation does not arise because it is very difficult to tell where the responsibility lies at the moment, unless you get the details of the ruling.

In your view, did something go wrong with the August elections?

I believe we did our best. It was the best managed election in the country and region, to the extent that everyone else saw it like that until the Supreme Court found our transmission process wanting.

That makes it very difficult to tell what actually went wrong. I think we’ll admit that if there were obvious gaps like data entry errors and such — which are expected when running massive exercise like this — we’ll own that blame.

But the question is: What extent did these errors affect the credibility and the final outcome of the elections? Our commitment is that we will look at these issues and make improvements so that we don’t repeat them.

If the full ruling comes out and there is evidence that you were culpable as an individual, will you resign?

I will. But remember that was not the issue before court.

The ruling talked about illegalities and irregularities in the part of your commission. Did you play any role in this?

You may have irregularities and illegalities but that does not necessarily lead to criminality. The latter means that you intentionally tried to play the system, and that was not the case in our handling of the election process.

If anything, a lot that went right can be accounted for and is self-evident. We had 1,882 elective positions across the country and they went through the same process and, in more than 95 per cent, people were satisfied with the outcome.

You don’t take that on the face value. It’s not really an individual’s perspective, but the commission’s. We need to wait for the detailed judgment. To me, the question then is: What is it that constitutes an irregularity and an illegality that violated the Constitution and the Elections Act?

This week we saw the chairman of the commission name a new project team that will be in charge of the fresh election. What is your take on that?

We’ve always run our major operations under project teams, including voter registration, ICT, tallying centre management and such. This isn’t a new idea, but how we operate within IEBC.

What the chair was demonstrating to the country is that we are getting ready for the elections and this is how we operate.

So the Chairman of the commission did not sideline you in any way?

I would not look at it like that. The team cannot work without the rest of us. We have more than 800 people working at IEBC and these team needs support.

From where I sit, this is a good idea, and we need to ensure that they are well facilitated and supported so as to give their best for the country.

Did you have a project team for the just-concluded general elections?

Yes, we did. We had the logistics project team, the tallying centre project team, voter registration team among others. Even the voter registration audit that was done externally was led by a project team. This is the modus operandi of the commission.

So who will be the face of the secretariat in the October election, now that it will be led by a different team?

I don’t think I will answer that.

What your thoughts on the leaked chairman’s memo?

We are looking at the issues raised in the memo and we will respond in the interest of the public. We will provide proper answers and explanations on the same.

The commissioners have issued a response with regards to this memo and I don’t think it should now be a big deal for now.

What can the public expect from the commission, given what is currently going on especially between the secretariat and a group of commissioners?

From an institutional point of view, Kenya has made progress. That is why we have the judiciary being able to make judgments that are accepted and respected by everyone.

As a commission, we have said that we’ve made a lot of gains in the manner in which we managed these elections, irrespective of the court’s ruling.

However, we have ended up being victims of our own success.

On a positive note, if we go to the October election with the optimism we had before August and manage it successfully, then we will have succeeded.

We have less than two months, and we have to pull through with improved systems and infrastructure.

Your commission seems to be working in the dark without a full ruling, and we have already seen it giving updates about the new election date. How is this happening?

We have spent the past few days planning for the new election. We are working on the register, gazetting the polling stations, and readying the technology that we will use.

From next week, we will expect to have a lot of activities. We have finalised the budget and will be presenting it to the Treasury for approval. All these things have to happen day and night.

What’s your budget for the October election?

We project about Ksh12 billion ($116 million) most of which will go towards human resources and logistics.

Do you think Kenyans trust your commission to hold and deliver a free and fair election in October?

The question should be whether the public believe in democratic institutions. If democracy has to work, then the institutions’ roles matter.

For countries that are highly polarised like Kenya, the issue of trust in institutions is debatable. Kenyans must believe in us to deliver the election.

The IEBC has, since 2009, been temporal. Every two years we see changes. This election was our opportunity to show them what we could do.

The country must believe in our ability and strength to deliver on our mandate, for the future. I believe that there isn’t any cause for worry because our institution is functional.

Did any of the evidence, like the Forms 34B that came before the Supreme Court, surprise you?

If you look at our court arguments, our responsibility was to ensure that the will of the people is safeguarded. If the results were consistent all the way from the polling stations to our tallying centres, yet the returning officer filled the results in a form that didn’t have the security features, then does that invalidate the outcome? It shouldn’t.

However, we haven’t been able to establish the cause of those discrepancies and we read no foul play, malice and games from our officers, given the reasons some of them came up with for these minor discrepancies.

This will be handled internally as the processes provide. Nowhere in the world will you get a perfect system and, in fact, when it is too perfect, think twice about it.

Were your IT systems compromised in any way?

Not at all. If there is anything, and for the assurance of the Kenyan people on what actually transpired, it is important that we get an independent entity to come and look at the systems, in the company of the political parties’ representatives, so that this matter is resolved once and for all.

I know the court scrutiny process, when it came to ICT system, asked us to allow access to specific servers to the system and provide logs for that.

We provide the logs, but the petitioner and others demanded to know the source of the logs, that’s why we had to go back to the IT service providers. this took time because of the high security framework governing this particular system.

We were working both in Nairobi and Europe with our partners, as our servers were hosted by one of the best cloud service providers called NTT. The compromise could not have happened with all the layers of security. Firms like NTT provide very secure cloud service as their core business.

When we went back to them to request for access in order to comply with the court, there were so many technical considerations and approvals both by them and us, and this occasioned the delay. By the time we were receiving the approvals, the deadline had reached, hence the court's final observation that there was only partial access.

There is a union that went to court to stop the chairman from dismissing or suspending you and eight other senior managers. What was that all about?

You may not believe me, but that caught me by surprise. I don’t know those guys — I am not a member of any union. None of my staff is associated with it.

No one consulted me and I’ve already told them to send me a written apology for that move.

Had they consulted you, would you have agreed with what they were planning to do?

I am not fighting to protect my position as long as we ensure that there is truth, justice and honesty in our engagements. So far I have no reason at all to run around even in courts. That is not how I do my business. I am a professional. I don’t fight for positions. I just do my job.

When the history of this country is written, with these elections as a reference point, how would you want to be remembered? Or what would you want to be written about you?

Well, I took up this position at a tender age and I came to do my best to help the country consolidate its democratic gains.

I honestly believe, save for the setting aside of the presidential elections, people will look back and say it was the best managed election that was nullified by the courts. They will ask why this happened.

How come everyone got it so wrong? It only points to one thing, that we did it right. I say history will be the judge and I don’t work for the present, I work for the future. I think the country will be proud.

Were you on anyone’s side while managing the August election?

My loyalty is to the people of Kenya and the Constitution. I did not take up this job because I wanted to please any party or individual.

I did not vote, because I don’t want my preference when it comes to voting to affect my judgments when it comes to my role in the commission. A lot of things have been said about my character, but I know myself and what I stand for.

Background:

Before joining IEBC, Ezra Chiloba was the deputy team leader in charge of governance under a DfID-Danida programme, Drivers of Accountability Programme managed by DAI.

He joined DAI after five years at UNDP-Kenya, where he supported the organisation in mobilising and managing project budgets amounting to $45 million.

Other organisations he has worked in are Kenya National Commission on Human Rights, Oxfam Novib, South Consulting Africa and Centre for Minority Rights Development.

He has experience in donor co-ordination and engagement having managed different donor agreements. He is also a fellow at Policy House, a strategic management institution he helped found in 2008.

Education: Mr Chiloba holds an MA in public policy from the Central European University and a Bachelor of Laws degree from the University of Nairobi. He is currently pursuing a PhD in Political Science.

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