Presidential petition exposed the many failings of polls team

Saturday September 2 2017

From left: Supreme Court Judges Njoki Ndung'u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang  and Isaac Lenaola at the Supreme Court on September 1, 2017. The Supreme Court has nullified the re-election of President Uhuru Kenyatta. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

From left: Supreme Court Judges Njoki Ndung'u, Smokin Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola at the Supreme Court on September 1, 2017. The Supreme Court has nullified the re-election of President Uhuru Kenyatta. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

By MAINA KIAI
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The Supreme Court had not rendered its judgment as I filed this column. I had no idea how the Court would rule, though I can guess how some judges will rule given their political antecedents. 

But that notwithstanding, I believe there are a number of takeaways that we should ruminate over, no matter the outcome of the petition.  

First, this Supreme Court exercised more control and authority over the proceedings than during the previous petition of 2013.

They did not allow lawyers to patronise or bully them — as pro-establishment lawyers did in 2013.

Deputy Chief Justice Mwilu was especially impressive and in control; she could well be on the way to being our first woman Chief Justice.

SUPREME COURT

Second, credit must be given to the Registrar of the Supreme Court for the diligence she put into the scrutiny she supervised.

This was a far cry from the 2013 scrutiny that was supervised by the then Chief Register of the Judiciary, and whose report was different from what observers found.

The Registrar’s efforts confirmed what many Kenyans have been feeling since August 10. 

We knew that there had been a burglary in the house but we were not sure how that was done since the door had not been broken down, nor the windows disturbed.

But clearly the family jewels, the TV and stereo had been stolen. The scrutiny and report by the Registrar revealed how some of that theft had been done.

SECURITY WATERMARKS

The fact that 56 Form 34Bs did not have the security watermarks is revealing.

Yes, the election regulations do not make it mandatory to have the security watermarks as lawyer Paul Muite thundered, but as the IEBC’s own sworn affidavit stated — in an effort to prove how the election could not be stolen — these watermarks were supposed to be on every single Form 34B as a security measure.

So why should some have the watermarks and others’ not? An IEBC sympathiser suggested that perhaps the returning officers used different papers and forms. But why print different forms unless there is an ulterior motive?

Moreover, some 31 Form 34Bs did not have serial numbers. Again, whether that was a requirement under law is neither here nor there.

What is clear is that some strange forms — representing about five million votes — were introduced into the elections, against the sworn testimony of the IEBC itself.

UNCERTAIN COUTCOMES

Were these strange Form 34Bs created to fit the “statistics” to support a particular outcome? Remember that elections in democracies have certain processes that produce uncertain outcomes, while autocracies are those with uncertain processes that produce certain outcomes.

Fourth, the fact that IEBC refused to allow access to the servers speaks volumes.

The court should have ordered the servers to be seized and brought to the court once IEBC refused access.

For why would a body constitutionally mandated to be transparent and accountable refuse access unless it has something massive to hide, even if it meant tempting a charge of contempt of court?

Fifth, it has been shocking to see violations of the Constitution and the law by the IEBC be minimised as “errors.” I can understand IEBC lawyers doing that, but it is hard to comprehend the latitude IEBC has been given.

INTERNATIONAL OBSERVERS

And it has been disappointing to see international observers — some domiciled in Kenya and some from outside — play that same game. Is this because they don’t think we deserve better?

Or is this guilt about the waste of millions of dollars spent on the IEBC? Or is it because the election result of August 10 is exactly what these observers wanted?

If it is the latter, why on earth do we ever have elections in the first place? International observers — aside from the EU Observation Mission (not the EU in Kenya) — set a new low for what it means to do elections observations.

Finally, Attorney General Githu Muigai’s submissions confirmed why this regime has so frequently been violating the Constitution.

I doubt there is any lawyer in Kenya whose vision of the Constitution can be as bewilderingly shallow and small.

Even though lawyer Steve Mwenesi gently chided him, the Law Society should seriously consider remedial action including ordering lessons in constitutional law. 

Maina Kiai is a human rights activist and co-director at InformAction. [email protected]