Charge IEBC officials over anomalies in voting kits deal, says Supreme Court

Supreme Court judges on Tuesday recommended investigation and possible prosecution of electoral commission officials who may have been involved in impropriety during the procurement of electronic elections equipment.

In the detailed judgment on the presidential election petition released on Tuesday, the judges said it was likely that the procurement of the electronic systems was marked by competing interests involving impropriety or even criminality at the Independent Electoral and Boundaries Commission (IEBC).

The judgment was giving details why the court upheld the election of Mr Uhuru Kenyatta as President. The initial decision without reasons was given during the Easter weekend.

“We recommend that this matter be entrusted to the relevant State agency for further investigation and possible prosecution of suspects,” the judges said.

Evidence supplied by the electoral commission showed that the failure of the Electronic Voter Identification (Evid) and the Results Transmission Systems (RTS) mainly arose from misunderstandings and squabbles within the IEBC during the procurement stage. The election systems cost taxpayers more than Sh9 billion.

The squabbles caused a failure by the commission to assess the integrity of the technologies in good time, hence the failure during the elections and results transmission, the judges said.

The technology failure was one of the pillars of the petition that Cord presidential Raila Odinga lodged at the court.

Four days after

The recommendation for prosecution is contained in a 113-page judgement that the Supreme Court released on Tuesday, containing reasons for rejecting the presidential election petitions filed by Mr Odinga and Africog, a civil society group, on March 30. The two had challenged IEBC’s decision to declare Mr Kenyatta winner of the presidential election on March 9, four days after the March 4 General Election.

Despite agreeing that the election was not perfectly conducted, the Supreme Court judges concluded that evidence supplied by Mr Odinga and his co-petitioners, Ms Gladwell Otieno and Zahid Rajan of Africog, could not sustain a decision to invalidate the presidential election in which Mr Kenyatta was declared winner with 6.1 million votes against Mr Odinga’s 5.3 million.

“The evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public.

“It is not evident, on the facts of this case, that the candidate declared as the president-elect had not obtained the basic vote-threshold justifying his being declared as such,” they said.

The court noted that when the electronic systems failed, there was no option, but to go manual. The judges largely upheld the explanations provided by IEBC, ruling that the irregularities were not significant enough to affect the validity of the election.

“As a basic principle, it should not be for the court to determine who comes to occupy the presidential office,” they said. The court’s duty is to assert the supremacy of the Constitution and the sovereignty of the people.

Dismissing Mr Odinga’s contention that it was mandatory to use the electronic systems for voting and tallying, the court held that elections were not envisaged to be conducted on a purely electronic basis.

They also dismissed the petitioners’ claims that vote tallying was not credible after party agents were removed from the national tallying centre.

“The relocation of political party agents did not undermine the credibility of the tallying, nor provide a basis for annulling the outcome of the presidential election,” they said.

They also settled the controversy over IEBC’s principal voters’ register, the special register and another register identified as “the green book” during the hearings, saying, the petitioners failed to prove that the principal register was illegally compiled and used. Use of the special register was not mysterious and no proof was given to show it was used to favour any candidate, they ruled.