Presidential election petition set to usher in more polls agency reforms

Going by the Supreme Court's judgment that upheld President-elect William Ruto's win in the August 9 presidential election, the electoral agency should have come out smiling-satisfied that it had conducted a credible election.

Indeed, the Supreme Court unanimously found that the Independent Electoral and Boundaries Commission (IEBC) had conducted the election in accordance with the law. Hence the dismissal of all nine petitions that had, by and large, alleged that the IEBC had bungled the election.

The court's verdict, to a great extent, helps IEBC chairperson Wafula Chebukati repair some of the damage incurred by supervising the impugned presidential election of 2017. But as the seven-judge bench acknowledged, it may not be enough to inspire public confidence in a body that has always taken the fall in every election cycle.

"The reactions following the declaration of results of the presidential election of August 9, 2022 show that the Independent Electoral and Boundaries Commission has not yet garnered universal public confidence and trust in the internal management of the commission and elections," Chief Justice Martha Koome said at the Milimani Law Courts on Monday.

Following the judgment, Chebukati expressed confidence that the IEBC had been vindicated in a statement he issued Monday. "The Supreme Court judgment today is a testimony that the commission conducted a free, fair, transparent and credible General Election that met the democratic aspirations of the people of Kenya. The Independent Electoral and Boundaries Commission is finally vindicated."

Confidence in the electoral body has not always come through the courts. Despite the Supreme Court upholding President Uhuru Kenyatta's win in 2013, the opposition, led by Raila Odinga, successfully lobbied to remove Isaack Hassan and his commissioners from office.

Tower of babel

It was the general feeling among Raila's supporters that the 2013 election was rigged, as it certainly is the feeling this time round. In a statement released on Monday, the former premier said he "vehemently" disagreed with the judgment, a message that most likely resonates with his supporters.

Top among Raila's grievances in his petition was the split within IEBC, brought to the fore on August 15 when the result of the presidential election was announced, that turned the electoral agency into a Tower of Babel.

The apex court proposed 'far-reaching reforms', which Justice Koome said they would lay out in their detailed judgment expected in 21 days. As a start, the judges declared that the IEBC chairperson cannot unilaterally verify and tally results, meaning that one of the reforms could involve striking against an imperial chairperson of the IEBC thus averting a dysfunctional commission in future polls.

"At the Serena Hotel press briefing, the four commissioners acknowledged that thus far, the entire election had been managed efficiently and credibly," Justice Koome said of the division that split the IEBC down the middle.

"The chairperson, on his part, did not make matters any better by maintaining a stoic silence even as things appeared to be falling apart. All this, in our view, points to a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy."

Even as the nation awaits the Supreme Court's proposals, it will not be the first time reforms have been suggested in the electoral commission. It was the Supreme Court of 2013 that set the threshold for nullifying a presidential election. This was developed by the 2017 court that created guidelines for the IEBC in conducting a credible election.

The public portal deployed in this year's election, for instance, was a result of the Supreme Court's recommendation on transparency.

In the wake of the violently disputed presidential election of 2007, the Justice Johann Kriegler-led commission proposed sweeping reforms, which included the integration of technology in the country's election, a move that has been lauded for increasingly making the elections transparent. Justice Kriegler also proposed timelines within which IEBC commissioners should be appointed, among other issues.

The events of recent weeks show just how hard a job the team of seven will have at sticking together until January when three commissioners-Chebukati, Abdi Guliye and Boya Molu-retire upon the completion of their six-year term.

From the admissions of the lawyers representing two factions within the IEBC at the Supreme Court, the elections agency is more apart than it is together, potentially irreparably so.

Whether or not the remaining four-vice-chairperson Juliana Cherera, Irene Masit, Francis Wanderi and Justus Nyang'aya-will survive an onslaught that could come from Ruto's side remains to be seen.

In a statement issued yesterday, the four commissioners suggested that they were ready to put the past behind them. "We agree with the statement of the chairperson of the commission which was sent to the media yesterday. We wish to reiterate that we stand by rule of law and statutes that promote effectiveness of the work of the commission," they said.