Posts tagged as: electoral

Raila Odinga – ‘No Electoral Changes, No Election in Kenya’

interviewBy Dotto Bulendu

Nairobi — Kenya’s opposition candidate Raila Odinga has told DW that some changes need to take place at the electoral commission if he is to take part in the repeat election set for October 26. President Uhuru Kenyatta disagrees. In its final ruling, Kenya’s Supreme Court blamed the Independent Electoral and Boundaries Commission (IEBC) for releasing unverified presidential results. The court annulled President Uhuru Kenyatta’s victory and ordered a repeat of the presidential election within 60 days. NASA’s presidential flagbearer Raila Odinga spoke exclusively to DW’s Dotto Bulendu about the stalemate surrounding the repeat election.

How satisfied are you with the final ruling by Kenya’s Supreme Court?

I am totally satisfied with the ruling because it completely annulled the fake [presidential] election victory of President Uhuru Kenyatta which took place on August 8. The court also ordered that a fresh election be conducted within 60 days. So I can say that the decision is a historic one not only in Kenya but also the entire African continent. It signaled that the era of electoral fraud in presidential elections is coming to an end.

And you don’t have any other lingering complaints?

The complaints have to do with the preparation of the repeat election, we [NASA opposition coalition], have made it clear that we don’t want to be part of the election, if the system that was used to steal the election has not been rectified.

What precisely is it that you would wish to see changed so that you can be part of the repeat election?

We have said that we need to see changes at IEBC. Those who were involved in electoral fraud must be charged in accordance with Kenyan law and those companies that were involved in these matters, such as the company which was responsible for providing technological systems for the transmission of election results (Safran Morpho), as well as the one that was contracted to print ballot papers (Al-Ghurair Printing and Publishing Company), be removed and those contracts be given to other companies.

So, if President Uhuru Kenyatta’s government fails to carry out those changes you have just mentioned, you will not be on the ballot?

Those changes are a must. The court ordered IEBC to conduct the election as stipulated in our constitution, if they [IEBC] fail to do so and a legal challenge ends at the Supreme Court again, they said they will do the same thing and annul the results. I don’t think they have a choice. The IEBC must undertake the changes that we have put forward.

Your main rival, President Uhuru Kenyatta insists that there will be no changes at the IEBC and if that were to happen then the Supreme Court will also require changes. Don’t you think this stalemate could postpone or affect the re-run election?

We are not asking the government because we are opposing the government. The government would not like to see these changes made. But what we are saying is that the IEBC must be transformed into an independent institution by making those reforms. If not, they will conduct the election for themselves; it will not be an election by the Kenyan people. Not only will we boycott, but such an election will not happen.

What do you mean by that?

There will be no election because if Kenyans won’t take part, it will probably be conducted in one or two regions and not all the regions of Kenya. Therefore, it will not be an election for the entire Republic of Kenya.

What about the gubernatorial, senatorial and the election of members of parliament are you content with those results or will you challenge them in court in the hope of having them nullified?

The [election] irregularities took place at all levels not just the presidential election. They stole many votes in the gubernatorial race; they hatched that plot to create the impression that they have many governors, senators, lawmakers, so on and so forth. We have already lodged our complaints at the court. We have many petitions.

Kenya election ‘neither transparent nor verifiable’: DW’s Kathryn Omwandho from Nairobi

Raila Odinga is the NASA presidential candidate.

Kenya Court Blames Electoral Commission Over Annulled Election

Kenya’s Supreme Court has delivered scathing criticism of the election board’s conduct during last month’s botched presidential vote. The opposition claims the poll was manipulated to help President Kenyatta win.

The Nairobi court handed down a detailed judgment on Wednesday explaining why it nullified the victory of President Uhuru Kenyatta in the August election.

Reading out the statement, Judge Philomena Mwilu described “disturbing, if not startling, revelations” about the performance of the country’s Independent Elections and Boundaries Commission (IEBC).

President Kenyatta was named the winner of the August 8 election, officially winning 54 percent of the vote. The Supreme Court nullified the result earlier this month, citing irregularities, after opposition leader Raila Odinga filed a petition claiming the electoral commission’s computers were hacked to skew the outcome.

The court has set a new election date for October 17.

Allegations of hacking

Addressing the court, Judge Mwilu said the electoral body had refused to comply with court orders to open its computer servers, saying this suggested that opposition claims of tampering could be true.

“Our order of scrutiny was a golden opportunity for the IEBC to place before the court evidence to debunk the petitioner’s claim,” she said. “Failure by the board to do as ordered must be held against it.”

She added that the court was left with no choice but to determine that the election commission’s “system was infiltrated and compromised and the data therein interfered with, or IEBC officials themselves interfered with the data, or it had bungled the transmission system and were unable to verify the data.”

Mwilu also said it appeared the board did not have all the necessary tally forms, with thousands unaccounted for, at the time they announced official results. “The [board] cannot, therefore, be said to have verified the results,” she noted.

“The Supreme Court’s ruling can have a huge impact on the country’s future,” Jan Cernicky, head of the Konrad Adenauer Foundation in Nairobi, told DW. “That largely depends on the elections that should take place on October 17, but we are really not sure if they will take place.” He said if the repeat election goes well, it might be a huge step to improve the rule of law and freedom of expression. Cernicky said the success of the October 17 election will send a strong signal to other African countries that “this is possible.”

The IEBC blamed network failures for missing and delayed tally forms, with some polling stations unable to scan and send the documents on time. But the judges rejected this excuse, saying officials should have been better prepared.

“Failure of the electronic system was a direct violation of the law,” Mwilu said. “We find that the 2017 presidential election was neither transparent nor verifiable.”

Protests outside court

Police used tear gas to disperse opposition and pro-government supporters who had gathered outside the court building while the judgment was read out.

Tensions in the Kenyan capital had been mounting in the leadup to the ruling, with the judiciary reportedly receiving death threats over the decision to void the vote. Chief Justice David Maraga on Tuesday accused police of failing to provide sufficient protection – a charge police denied.

“I don’t think the court will make the divisions that you see in Kenya any worse, Cernicky said. “There were tensions before, we will have tensions after the court’s ruling and also after the next election.”

Kenyatta has also called the Supreme Court judges “crooks” and threatened to take unspecified action against the judiciary if he is re-elected next month.

nm/msh (AP, AFP, Reuters, dpa)

Ministry Revises School Calendar as Election Nears

Photo: Jared Nyataya/The Nation

Students at Moi Girls High School (file photo).

By Faith Nyamai

The Ministry of Education has issued a new calendar for the third term as it postponed the Home Science practical examination paper because of the presidential election.

Cabinet Secretary Fred Matiang’i in a statement Friday said:

“Given the number of schools gazetted as polling stations and tallying centres for the election, it has become necessary to make minor adjustments to the third term dates.

“This is to free up the institutions for use during this important national exercise,” he said.

ELECTION

Dr Matiang’i said the Home Science practical paper that was scheduled for October 26 will take place on October 30.

“The Kenya Certificate of Secondary Education (KCSE) Home Science 441/3 examination paper scheduled to take place on Thursday, October 26, has now been moved to Monday, October 30,” he said.

The Ministry made the changes after the Independent Electoral and Boundaries Commission (IEBC) deferred the repeat presidential election from October 17 to October 26.

KCPE EXAM

This has equally affected the closing dates of primary and secondary schools.

All primary schools will now close on October 25; Form One to Form Three students will go on holiday on October 24 as the Form Four candidates prepare to sit the Kenya Certificate of Secondary Education exam.

The Kenya Certificate of Primary Education examination will start on October 31 and end on November 2 while the KCSE theory papers will begin on November 6 and end on November 29.

Kenya

Duale to Seek MPs Approval of Sh11.5 Billion for Poll

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Cabinet Approves Sh10 Billion for Fresh Presidential Poll

By Davis Ayega

Nairobi — The Cabinet has approved Sh10 billion for Independent Electoral and Boundaries Commission (IEBC) to conduct the fresh presidential election that has now been pushed to October 26.

In a Cabinet meeting chaired by President Uhuru Kenyatta and his deputy William Ruto on Thursday, the decision was arrived at in what they termed as a plan to re-organise the planned 2017/2018 expenditure so as to meet the obligations – turned priorities – created by unforeseen circumstances.

Following the nullification of the August 8 presidential election by the Supreme Court, the poll agency reached out to the Treasury for help to plan for the fresh presidential election.

According to IEBC Chairman Wafula Chebukati, the approved funds will now go towards facilitating the implementation of key tasks especially those related to technology and training of the electoral officers.

The Cabinet also approved Sh25 billion for free day secondary education with Kenyatta saying that his government was fully committed to providing this by January 1, 2018.

According to the Cabinet, in 2018, the Form One intake will cater for 1,003,552 learners sitting their KCPE this year. Of this 903,200 will join public schools, while 100,322 will join private ones.

The Cabinet also approved an allocation of Sh6.5 billion for the enhanced Inua Jamii programme, under which all Kenyans aged 70 and above are entitled to a stipend.

Some Sh4.2 billion will be given for the African Nations Championships (CHAN), one in a growing list of events Kenya has bid for to showcase talent and tourism destinations.

An amount of Sh1.9 billion will settle people who were internally displaced during the 2007/8 Post-Election Violence.

Kenya

Duale to Seek MPs Approval of Sh11.5 Billion for Poll

Majority Leader in the National Assembly Aden Duale says he will be requesting MPs to approve the release of Sh11.5… Read more »

Proposed Amendment of Age Limit for President Is Contempt of Court

Photo: Daily Monitor

Police deploy in Kampala ahead of presidential age limit demonstrations.

opinionBy J Oloka-Onyango

To anybody with even a slight sense of history, the developments at Parliament over the last several days must bring back an acute sense of shock and grief. Our ancestors of constitutionalism like James Wapakhabulo (the chairperson of the Constituent Assembly) and the thousands of other martyrs who have passed on in the name of “liberation,” must be turning in their graves.

Not since the enactment of the “Pigeon Hole” Constitution in 1966 have we seen government troops amassed at the Legislative Assembly in a bid to intimidate and force through a constitutional change such as that which is being proposed with respect to the removal of age limit from the Constitution.

While the young MPs behind the move may be forgiven because they were not alive at the time, for an old man like President Museveni, it is a damning indictment of every criticism he has ever made of previous governments and of all the principles he has claimed to stand for.

Milton Obote must be laughing his head off.

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However, the proposed action by the MPs has serious implications for our constitutional jurisprudence and the Rule of Law. As a matter of fact, it amounts to contempt of court and of the 1995 Constitution. The proponents of the constitutional amendment claim that it is a response to the Supreme Court decision in the case of Amama Mbabazi vs YK Museveni and the Electoral Commission – the case, which considered the challenge to the 2016 presidential elections.Among the holdings in that case was a direction to the Attorney General to propose amendments to the Constitution dealing, among others, with the time for filing and determination of a presidential petition; the nature of the evidence that can support such a petition, the time for holding fresh elections, the use of technology in an election and the unequal use of State-owned media.Quite clearly, the issue of changing the age limit in the Constitution was never part of the recommendations.For the MPs to claim that their motion is prompted by the failure on the part of the Attorney General to present these changes to Parliament (and hence the need for a Private Member’s Bill) is a clear and obvious lie because the Notice of Motion presented to the Speaker says nothing about any of these issues.There is another dimension to the proposed amendment, which the learned MPs should be made aware of, especially because they argue that the limitations imposed on the age of a presidential candidate are “discriminatory” against the elderly.In the first instance, the Constitution is full of different limitations that are imposed on public officers relating to qualifications, capacity and age.If the limits on the age of a presidential candidate are removed, it implies there is no other limitation, which can be imposed that will pass constitutional muster; thus, my eight-year-old nephew should be allowed to vote and a person without any academic qualifications whatsoever, should be eligible to run for a parliamentary seat.In sum, the proposed amendment is opening up a veritable Pandora’s Box. Finally, the 1995 Constitution was based on certain fundamental principles, including ensuring that our history of political and constitutional instability is not repeated.What this amendment represents is the final nail in the coffin of not simply the letter of the document, but also of the spirit of democratic constitutionalism as we know it: Cry Beloved Uganda!Prof Oloka-Onyango is a lecturer at Makerere University.UgandaNumber of Poor People is Rising – Report

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Details of Age Limit Removal Motion Leak

Photo: Daily Monitor

Police deploy in Kampala ahead of presidential age limit demonstrations.

By Solomon Arinaitwe & Ibrahim A. Manzil

Parliament — Every Ugandan who qualifies to vote will be eligible to run for president and district chairperson if the controversial Private Member’s Constitution Amendment Bill succeeds in Parliament in its current state.

The Constitution Amendment Bill, that has for long been tightly guarded and shared only among trusted lieutenants in government and the ruling NRM party, was on Wednesday tabled before a chaotic NRM Caucus meeting at the Office of the Prime Minister and hurriedly passed by a vote of 287 MPs in support, six against and two abstentions.

Six NRM MPs Theodore Ssekikubo (Lwemiyaga County), Monica Amoding (Kumi Municipality) Patrick Nsamba (Kassanda County North), Mbwatekamwa Gaffa (Kasambya County), Sam Lyomoki (Workers] and Felix OKot Ogong (Dokolo South County) stormed out of the Caucus meeting after being heckled down as they attempted to voice disproval to the motion they voted against.

The six had earlier voted to support MP Nsamba to table a motion urging the government to constitute a Constitutional Review Commission(CRC) that would prepare an omnibus Constitution Amendment Bill. Mr Nsamba’s motion was overwhelmingly defeated.

Government Chief Whip Ruth Nankabirwa said Mr Nsamba’s motion”collapsed on its weight”.

A total of 296 MPs attended the NRM Caucus meeting that gave Igara West MP Raphael Magyezi the green light to table the Private Member’s motion seeking permission of Parliament to introduce a Constitution Amendment Bill.

Buliisa County MP Stephen Mukitale, an NRM-leaning Independent, attended the Caucus meeting but abstained from the vote together with Pian County MP [NRM] Achia Remigio.

A copy of the Constitution Amendment Bill, which Daily Monitor has seen, proposes to amend Article 102(b) and replace it with a clause that simply reads: is a registered voter.

Article 102(b) currently states: a person is not qualified for election as President unless that person is not less than 35 years and not more than 75 years of age.

Article 102(b) that limits the upper age of a prospective president at 75 years is the centre of focus because its amendment would make President Museveni, who turned 73 on September 15, eligible to run for presidency again in 2021.

Under the current Article, he will not be eligible to run for re-election in 2021 because he will be aged 77.

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Proponents of the plot to delete age limits have been keen to underline the argument that they are not hell-bent favouring Mr Museveni aged 73, to seek re-election as many times as he likes and they are keen to buttress the Bill with separate amendments not linked to Article 102(b).To illustrate their argument that their Omnibus Bill is not simply hell-bent on helping Mr Museveni to contest countless times, the Bill proposes separate amendments to Article 104 [challenging a presidential election], Chapter 11 [Local government system] and Article 61[Functions of the Electoral Commission].On challenging a presidential election petition, the Bill proposes to amend Article 104 and increase the deadline for filing the petition challenging presidential election results from the current 10 days to 15 days.Clause 3 provides that the Supreme Court shall inquire into and determine the petition expeditiously and shall declare its findings not later than 45 days from the date the petition is filed.Under Clause 6, where such an election is annulled by court, a fresh election shall be held within 60 days from the date of the annulment.An amendment to Article 60 proposes that the Electoral Commission shall hold presidential, general parliamentary and local government council elections within the first 30 days of the last 120 days before the expiration of the term of office of the president.With Mr Magyezi’s motion already given a nod by Cabinet and now approved by the ruling NRM, which commands an overwhelming majority of more than 300 MPs in the national assembly, the motion will now be tabled in Parliament amid threats by its opponents to pull all the stops, including going physical, to thwart it.For the Bill to pass, it has to marshal the support of not less than two-thirds of 447 MPs with voting power in Parliament, which is 298.MPs Doreen Amule (Amolatar District), Jackson Kafuuzi (Kyaka County South) and Moses Balyeku (Jinja Municipality West) have been lined up to second the motion.By last evening, it was still unclear when the motion will be tabled as the Deputy Speaker Jacob Oulanyah reiterated that it will not be tabled today unless he met with Speaker Rebecca Kadaga to agree on the way forward.Today’s morning meeting between Mr Oulanyah and Ms Kadaga will also determine who will chair the House this afternoon.Buoyed by the support from the polarised NRM Caucus meeting, Ms Nankabirwa insisted the motion will have to be tabled in Parliament today, pouring cold water on assertions by Mr Oulanyah.Ms Nankabirwa spiritedly argued that passing the Bill quickly is essential for the government and individual MPs to have sufficient time to deal with the obvious political backlash that will be triggered by the scrapping of the presidential age limit before the general election in 2021.”If you don’t bring this amendment early enough to allow damage control and explanations, it will be difficult. So timing is of essence, it is very important leave alone going by the court ruling, [but also] politically to defuse the lies and the opportunists,” Ms Nankabirwa said.With tempers flaring, the Deputy Speaker Oulanyah called for calm and made a U-turn on his earlier statement, this time admitting that Parliament asked for police deployment at Parliament, contrary to his communication on Tuesday that Police and the military had deployed heavily at the national assembly building without a request from Parliament.Earlier, the Leader of Opposition in Parliament, Ms Winfred Kiiza (FDC, Kasese), chose Justice Forum party leader Asuman Basalirwa to address the media on their behalf.Mr Basalirwa said the Opposition will launch a countrywide campaign “to sensitise the public on the dangers of removing the age limit from the Constitution”.Ms Kiiza said claims by a section of the public that they have been bought into silence are unfounded and reckless, saying their foreign trips during the raging debate, had been scheduled beforehand.On talk by some MPs that they will employ physical force to scuttle presentation of the motion, Ms Kiiza said everybody is gifted by God in different ways.”We are all different and we respond to the same situation differently. Others may use physical means like tearing papers, while others may use reason and debate,” Ms Kiiza said.Message to youthNtungamo Municipality MP Gerald Karuhanga, in a separate briefing, asked the youth to “salvage our generation”.”You would rather speak out now than when you are a refugee tomorrow. It will be another very dark day in our history,” Mr Karuhanga said.The briefing was attended by MPs Moses Kasibante (Rubaga North), Lyandro Komakech (DP, Gulu Municipality) and Centenary Robert (Kasese Municipality).

Cabinet Approves Budget for Repeat Election

Photo: PSCU

A Cabinet meeting chaired by President Uhuru Kenyatta at State House, Nairobi on September 21, 2017.

By Justus Wanga

Cabinet on Thursday approved Sh10 billion budget to facilitate preparation for the repeat presidential election now slated for October 26.

The amount is less by about Sh2 billion given that the Independent Electoral and Boundaries Commission (IEBC) had requested for Sh12.2billion to preside over the polls following the nullification of President Uhuru Kenyatta’s win by the Supreme Court earlier in the month.

“Cabinet today approved an allocation of Sh10 billion to cover these repeat Presidential elections. This allocation was based on a proposed budget submitted by the electoral agency IEBC,” a dispatch by the State House Spokesperson Manoah Esipisu read.

SECURITY

IEBC on Thursday shifted the poll date from October 17.

Earlier, Treasury Cabinet Secretary Henry Rotich had projected that the election would cost more than Sh15 billion when ‘related activities, largely security measures, are factored in’.

Given that the repeat poll was not planned for at the beginning of the fiscal year starting June, some of the development projects earlier earmarked for completion will have to take a back seat as the supplementary budget is presented to the National Assembly on Tuesday for approval.

“Cabinet decided to reorganise planned expenditures for 2017/18 fiscal year, in line with Article 223 of the Constitution and Section 44 of the Public Finance Management Act (PFMA), 2012 in order to meet the obligations wrought by the new priorities,” Mr Manoah said.

TRANSITION

He said the president chaired the meeting, which was also attended by his Deputy William Ruto, and all Cabinet Secretaries, except CS Foreign Affairs Amina Mohamed, who is leading Kenya’s delegation to the United Nations General Assembly in New York.

The Cabinet at the same time approved a further Sh25 billion towards free secondary education starting January. This has been one of Mr Kenyatta’s campaign pledges which can only take effect should he win in the elections.

“Requisite infrastructure will be provided through government initiative that leads to 100 per cent transition from primary to secondary school,” his spokesman said.

Mr Manoah said in 2018, the Form One intake will cater for 1,003,552 learners sitting their Kenya Certificate of Primary Education this year.

IDPS

“Of this 903,200 will join public schools, while 100,322 will join private ones,” he added projecting an influx of learners in public schools.

On social protection, some Sh6.5 billion was also allocated to cover the enhanced Inua Jamii programme under, which Kenyans aged 70 and above are entitled to a monthly stipend.

The thorny matter of the Internally Displaced Persons (IDPs) which has refused to fade away since the post-election violence of 2007/08 was also in the agenda with Sh1.9 billion being set aside to settle those still staying in camps.

Preparations for hosting the African Nations Championships (CHAN) also got a shot in the arm after a budget of Sh4.2 billion was also sanctioned.

Chebukati and Chiloba Blamed for Poll Failures

Photo: Capital FM

IEBC Chairperson Wafula Chebukati and CEO Ezra Chiloba.

By Walter Menya

Top electoral commission officials are on the spot for bungling the August 8 presidential poll.

According to the detailed ruling of the Supreme Court delivered on Wednesday, Independent Electoral and Boundaries Commission Chairman Wafula Chebukati, Chief Executive Ezra Chiloba, ICT Director James Muhati and Voter Registration and Electoral Operations chief Immaculate Kassait made untrue assertions in their affidavits in regard to the forms used to declare Mr Uhuru Kenyatta the winner, transmission of results and security features in the result forms.

The judges said the officials were in contempt of court for disregarding an order of access to the commission’s servers.

Justices David Maraga, Philomena Mwilu, Smokin Wanjala and Isaac Lenaola agreed with National Super Alliance principals Raila Odinga and Kalonzo Musyoka’s opinion that “IEBC’s conduct of the presidential election was flawed and/or incompatible with the electoral values and principles of the Constitution, including transparency, accountability, security, verifiability and efficiency.”

MAJORITY JUDGMENT

Nasa in its petition had argued that failures by IEBC were deliberate, systemic and systematic.

According to the majority judgment, Mr Chebukati, as the national returning officer for the presidential election failed to explain why results were not transmitted in the stipulated manner.

Mr Chebukati was also found to have declared results he purported to have been final yet not all Forms 34A and B had been received at the National Tallying Centre. The ones that were eventually submitted “had dubious authenticity”.

The court said Mr Chiloba was on record admitting that as at August 17, nine days after the vote, the commission was yet to provide all the Forms 34A and 34B to the petitioners.

The judgment described the obscurity surrounding Forms 34A as a “mysterious puzzle”.

Mr Chebukati was criticised for his contradictory description of the vote figures shown on TV screens.

In his affidavit, the IEBC chairman said the “statistics did not constitute the results of the presidential election”.

PROVISIONAL RESULTS

However, in court, IEBC lawyer Paul Nyamodi referred to the figures as data “which was previously referred to as provisional results”.

In the judges’ determination, the contradictory description of the figures raised serious questions.

“Bearing in mind that IEBC had the custody of the record of elections, the burden of proof shifted to it to show that it complied with the law in the conduct of the presidential election, especially on the transmission of results. It failed to discharge that burden,” the judges said.

Mr Chiloba and Ms Kassait were put on the spot over lack of security features in the results declaration forms as had been defined in the contract with the United Arab Emirates-based Al Ghurair Printing & Publishing company.

In her replying affidavit, Ms Kassait said the “commission developed standards for its electoral goods before their procurement”.

STATUTORY FORM

“The standards included specific security features for every ballot paper and statutory form in order to prevent duplication, misuse, piracy, fraud, counterfeiting and to improve controls. The ballot papers and…forms…contained these features,” she said.

However, the majority of the judges found Ms Kassait’s pronouncements to have been untrue following a scrutiny of the forms supervised by Supreme Court Registrar Esther Nyaiyaki.

“Though there is no specific provision to have forms have security marks, there is no plausible explanation as to why they lacked them. There was no reasonable explanation why some forms had security features while others did not,” the judges held, putting the responses by the commission, Mr Chebukati, Mr Chiloba and Ms Kassait into question.

CHILOBA

Mr Muhati was accused of failing to ensure scanned copies of the forms and text results were transmitted simultaneously.

IEBC’s claim that 11,000 polling stations were out of 3G and 4G range was also put to question, with the ICT directorate blamed for failing to ensure that a complementary system was in place for simultaneous transmission of results.

Mr Chebukati, Mr Chiloba and Mr Muhati, the judges held, strenuously objected the petitioners’ access to its servers claiming such an access could compromise the security of the data, a claim court-appointed experts said had no standing.

IEBC to Buy New Ballot Boxes for Repeat Poll

By Ibrahim Oruko

The electoral commission will procure new ballot boxes for the October 17 repeat presidential election.

The revelations were made by lawyer Paul Muite on Wednesday after the Supreme Court delivered its full judgment on Raila Odinga’s presidential petition.

HEADWINDS

The decision to buy the ballot boxes was arrived at after Mr Muite’s plea for the court to free up the boxes used on August 8 ran into legal headwinds that require all election materials to be preserved for three years after poll.

“As a consequence of the court ruling, it is my clients’ contention (that) there is no need to preserve the presidential ballots,” Mr Muitehad told the apex court.

“I have instructions from the IEBC and its chairman that the ballot boxes should be unsealed as they will be used for the repeat presidential election.”

The law requires that after a General Election, all materials be preserved for a period of three years.

REPEAT POLL

Mr Muite had argued that the failure by the court to give the orders would have impacted on the preparations of the October 17 repeat presidential poll as ordered by the court.

“It is in the public interest for the ballot boxes to be unsealed so that the commission can conduct the election within the set time frame,” he told the court.

However lawyers James Orengo for Mr Raila Odinga and Kalonzo Musyoka’s legal team and Mr Fred Ngatia for President Kenyatta opposed the application, citing the legal requirement on preservation of poll materials.

Mr Orengo said the legal requirement was not limited for the purposes of litigation.

3 JUDGMENTS

“They are preserved because members of the public may want to look at the materials for purposes which include the credibility in the conduct of the elections without necessary seeking a determination,” he said.

While not expressly rejecting the release of the boxes, Mr Orengo told the judges that they could order the release of the boxes, but must provide other mechanisms to preserve the ballot papers used in the August General Election.

“Whether used, or unused, all the materials should be preserved even if the boxes will be released for use on October 17,” he said.

Mr Ngatia said it is a statutory edict that election materials be preserved that the court was being asked to depart from.

“Difficult matters have emerged from the three judgments. We want the elections materials to stay where they are because this country is large enough to buy other ballot boxes. You can’t talk of shillings and cents when you have nullified a presidential election,” he said.

AG MUIGAI

He added: “Don’t cede because the materials may be important for other processes, including a scrutiny of all votes in the nullified presidential election.”

Attorney-General Githu Muigai said while it is important to respect the provisions of the law in respect of preservation of the materials, he observed it is not prudent for the country to incur further expenses after the country has run a very expensive election.

However, Mr Muite withdrew his application after the AG, in answer to Deputy Chief Justice Philomena Mwilu, confirmed to the court that the ballot boxes are also election materials as provided in law.

Nasa Claims Broad and Vague, Says Justice Ojwang

By Silas Apollo and Sam Kiplagat

Supreme Court judge Jackton Ojwang’, in his dissenting opinion on the election petition, said Nasa leader Raila Odinga failed to prove his case after making broad and vague claims.

The judge, in his full ruling read in court Wednesday, argued that Nasa’s arguments were anchored on generalities and not factual evidence and hence failed the test of burden of proof.

Justice Ojwang’ noted that while the weight of the petitioner’s case lay on credibility, transparency and credibility of the results relaying process, Nasa largely made broad claims on alleged wrongdoing on the part of the electoral commission.

The petitioner, he argued, instead invited the court to ascertain the scope of its evidence.

To him, it was the respondents, the Independent Electoral and Boundaries Commission and its chairman, Wafula Chebukati — who were enjoined in the case as the first and second respondents — who provided better evidence to justify the credibility of the elections.

FACTS

He noted that however profound a legal argument might be before the court, it must be anchored on the facts of the case. The evidence need to be credible, not objective unless it is from an expert witness, he added.

“The Constitution of Kenya safeguards the rule of law, democracy and the will of the people,” said Justice Ojwang’. “It is clear to me, beyond peradventure, that there is not an iota of merit in invalidating the clear expression of the Kenyan people’s democratic will.”

He went on: “I cannot but therefore conclude that the facts based on the evidence of the petitioner’s case are more than weak. The Constitution states that justice shall be served without undue regard to procedural technicalities.”

Nasa had pegged its petition on the credibility, transparency and the integrity of the results relaying process from polling stations to the national tallying centre. The coalition relied on the authenticity of Forms 34A and 34B to argue that the results that IEBC was streaming were unverified and therefore, illegal.

BURDEN OF PROOF

And on whether the election was compromised by intimidation and the compromise of voters as argued by Nasa, Justice Ojwang’ opined that the petitioner failed to accompany satisfying evidence, and in essence, undermined the discharge of burden of proof.

The respondent, the judge said, did not contravene any provision of the Constitution or any other statutes of law. He said the IEBC conducted the elections in a free, fair and transparent manner, including consultation of parties, secret voting, as well as the counting of results in the presence of all agents as required by law.

The judge noted that it was, therefore, prudent for the majority judges who ruled against the respondents to have asked for a recount of the votes before annulment.

The voter, he argued, had no problem marking the ballot, which was secure, transparent and accountable.

“The majority judges appear to have taken leave from their juristic obligation to interpret the constitutional provisions cited by the petitioner,” said Justice Ojwang’.

EVIDENCE

The judge said the majority judges had the greater burden to prove whether the petitioner had a case that would warrant a nullification of the results based on evidence prepared.

He said the top court, through the Constitution, was given the interpretative mandate, and as such, ought to have applied the burden of proof to the case presented by Nasa.

The respondents, said Justice Ojwang’, satisfying all the constitutional requirements in carrying out its mandate to preside over a free and fair elections and the claims of non-compliance did not add up.

It was his view that specific and credible evidence on the case, which were relied on in court with regard to the August elections, were all provided by the respondent, as opposed to the petitioner.

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