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The Supreme Court has spoken: Back to the ballot box

Monday September 04 2017
JUDGESPIX

Kenya's Supreme Court judges. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

By MUTHONI WANYEKI

By a majority decision, 4-2, the Supreme Court has found that the Independent Electoral and Boundaries Commission failed, neglected or refused to respect the Constitution and the law.

That there were irregularities and illegalities as concerns the presidential elections—and specifically the transmission of supposed presidential results. These irregularities and illegalities did have an impact on the integrity of the presidential elections.

The Supreme Court has, therefore, ordered that fresh presidential elections be conducted in 60 days in full conformity with the Constitution and the law.

It is unbelievable. And it is unexpected. Given the weight of evidence placed before the Supreme Court, it should have been entirely believable and expected.

For the Registrar’s scrutiny report found duplicate Forms 34A. Carbon copies and photocopies of both Forms 34A and Forms 34B. Forms that were neither signed nor stamped by Returning Officers. It found 56 Forms 34B without the watermark the IEBC had said were a security feature. Another 31 missing the serial numbers the IEBC had also said were a security feature. And five completely unsigned.

Meanwhile, the Supreme Court’s information and communications technology report—concerning the Kenya Elections Information Management System—found no less than 9,934 times the system was accessed through the IEBC chair’s account that were not through the IEBC’s IP address.

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That the IEBC’s chair’s account was used to transfer, modify and delete uploads to the IEBC’s server. That there were uploads to the system by only 277 users, not from the 42,000 polling stations as intended. That, in fact, no data at all came from the polling station level as intended.

It is a vindication of the work of the small but committed group of human rights and governance organisations under Kura Yangu, Sauti Yangu did to demand that the IEBC declare in a manner that could be verified.

And it is a vindication, of course, of the opposition which only went before the Supreme Court initially to place its evidence of electoral malpractice and illegalities before the public in a manner that would have some gravitas—so that the public would understand what happened to their vote.

Some initial conclusions: Domestic and international observers need to spend as much energy and time watching the tallying, transmission and declaration of results as they do on mere polling.

The local and international media need to get beyond “he said, she said” reportage—and the box they’ve been placed in that compromises their independent broadcast of results. We all need to continue to be critical of our public institutions and demand that they all live up to their obligation to protect the public interest—as the Supreme Court just did.

And, when they don’t, to hold them individually and collectively responsible. Raila Odinga’s already said the opposition intended to pursue criminal prosecutions against those in the IEBC who tried to turn our presidential election into such a farcical ritual.

Let all IEBC Commissioners and staff be aware of that—as they move us towards a more meaningful election that actually respects and upholds the will of the people in 60 days.

L. Muthoni Wanyeki is Amnesty International’s regional director for East Africa, the Horn and the Great Lakes

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