IEBC, State in a spot as Raila and Ruto build case for poll petition

With less than two months to the August 9 General Election, Deputy President William Ruto and Azimio la Umoja One Kenya presidential candidate Raila Odinga are preparing grounds for challenging the results.

Both teams are putting together issues that could be raised in case they find themselves at the Supreme Court. The two contenders have learnt from the 2013 and 2017 results, which were challenged in court.

The supreme Court nullified President Uhuru Kenyatta’s win in 2017, paving the way for repeat presidential election.

Last week, the Dr Ruto’s UDA party wrote to the Intelligence Service Complaint Board, protesting what it calls the abuse of intelligence reports.

The party accused the Interior Principal Secretary Karanja Kibicho of using the National Intelligence Service (NIS) to campaign for Azimio la Umoja. 

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The party, through its lawyers, decried remarks attributed to Dr Kibicho on the eve of the Madaraka Day, when he reportedly claimed that NIS reports showed the Azimio candidate would secure a first-round win with 60 per cent of the vote.

“Particularly, it is the duty of the Director-General of NIS to put in place mechanisms and systems to ‘prevent disclosure of classified information’ thus ensuring that no circumstances arise where such information is deployed outside constitutional and statutory frameworks as well as established guidelines and protocols,” said lawyer Elias Mutuma in the letter dated June 7.

On January 17, UDA wrote to President Kenyatta complaining about the ‘emerging pattern of state-enabled violence’.  The party identified violence in Kisii town on September 8, 2020, Kenol in Murang’a County on October 4, 2020 and Mahoo Ward (Taita Taveta) on August 24, last year.

State officials

It also cited incidents in Kieni, Nyeri County, on September 5, Busia on October 23 and Kondele, Kisumu county, on November 10, last year

“We, therefore, demand an assurance from Your Excellency, as the chairman of the National Security Council, that Kenyan lives and property remain protected under the law, and that the instruments of State and security apparatus will not be deployed in a partisan manner, or to cause mayhem and deaths to propel a preferred candidate to victory, hence compromising the constitutional right of 50 million Kenyans to have a say in a free fair, transparent and peaceful election guaranteed by the Constitution.” The letter was copied to the Independent Electoral and Boundaries Commission (IEBC), Inspector General of Police Hillary Mutyambai, African Union Commission, Delegation of the European Union, US embassy and the British High Commissioner, and the Chief Prosecutor, International Criminal Court.

UDA has also written to the Director of Public Prosecutions Noordin Haji to initiate criminal proceedings against five Cabinet Secretaries for allegedly campaigning for Mr Odinga.

The party named Interior CS Fred Matiang’i, Eugene Wamalwa (Defence), Keriako Tobiko (Environment), Peter Munya (Agriculture), Joe Mucheru (ICT) and James Macharia (Transport).

 “The involvement of the CSs and principal secretaries raises doubt on the neutrality and objectivity and it is a barefaced, unconcealed, and blatant conflict of interest,” she stated in a June 3 letter. The party cited Section 15 of the Election Offences Act 2016,” said party Secretary-General Veronica Maina. And Mr Odinga, while presenting his papers to IEBC, raised 10 issues that he wanted addressed to ensure credible elections.

The demands, presented in writing to IEBC Chairman Wafula Chebukati, included a status update on the commission’s deployment of election technology, the credibility of the voters’ register, adherence to the 2017 Supreme Court judgement, and questionable last-minute amendments to election laws.

Weighty issues

The Azimio presidential candidate wanted to know if the agency had developed constitutionally compliant protocols and the results transmission path to the national tallying centre, the status of county and constituency voter registration exercise.

He also raised concern on data migration, given that the commission had changed its vendor of electoral materials, and the fact that previous vendors have withheld data, claims the IEBC has refuted. 

Lawyers say most of the issues raised were weighty. 

“Those issues can in a presidential election petition at the Supreme Court could render the election results invalid,” said former LSK President Nelson Havi.

Lawyer Kimutai Bosek said Cabinet Secretaries and Principal Secretaries should facilitate a free, fair and credible election.

“As a public servant, when you takes sides, you erode the confidence of the electorate. What they should do is provide assurance that they will a smooth transition and seamless handing of power,” he said.

“Former Chief Justice ruled that election is a process, meaning that if the process is flawed then that is enough ground to nullify the election results.” 

While nullifying President Kenyatta’s victory, four Supreme Court judges, Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Smokin Wanjala and Isaac Lenaola voided said the electoral agency flouted the process of the election.