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As we wait for judgment, some polls officials should be in court

Saturday September 9 2017

Independent Electoral and Boundaries Commission Chairman Wafula Chebukati (centre) and IEBC commissioners addressing journalists outside Anniversary Towers in Nairobi as IEBC on August 1,2017. PHOTO | EVANS HABIL | NATION MEDIA GROUP

Independent Electoral and Boundaries Commission Chairman Wafula Chebukati (centre) and IEBC commissioners addressing journalists outside Anniversary Towers in Nairobi as IEBC on August 1,2017. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

By MAINA KIAI
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Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Judge Smokin Wanjala and Judge Isaac Lenaola made global history on September 1 when they ruled that the election process must follow the dictates of the Constitution and the law. 

More often in international news for negative issues such as extra-judicial killings by the police, massive corruption and looting by state officials, traffic jams, high crime rates and living large by our legislative and state officials, the Supreme Court decision marked one of the rare times that Kenya was in the international media favourably.

Even the newspaper of record, the New York Times, had the decency to walk back their original commentary about the elections, something we await from some domestic and international, including the diplomatic community.

Even before the full judgment, Jubilants have gone to town with bare faced lies, none bigger than the assertion that Mr Uhuru Kenyatta won the election.

THREATS

He did not, and he knows it; which perhaps explains the abuse and threats, violating his oath of office and the Constitution.

Mr Kenyatta has been unable to conceal this side of his personality, commonly found in bullies, abusers and violent perpetrators.

Yet we can’t tell who won until we have a full and transparent forensic audit of the entire election systems.

But what is clear is that the 80 Form 34Bs that did not have the security features and/or serial numbers were fake and fraudulent.

That means that about five million votes cannot be accounted for, which is the classic definition of election theft.

This is not about minor errors or irregularities. No. This is about illegalities, or violations of the law, some attracting criminal penalties.

FAMILY JEWELS

Someone went into the house, and stole the television, the family jewels and the cash. We now just need to know how, and by whom.

Even as we await the judgment, there is enough information to start investigations and prosecutions, and the IEBC can assist us all by opening its servers for a forensic audit.

In fact, the first step is finding out why the IEBC refused to allow scrutiny of its servers during the court ordered scrutiny.

Who made the decision to defy the Supreme Court? The argument about technicians sleeping in Europe or America is facile.

The Court can, and indeed should, begin a process of contempt of court to get to the bottom of this defiance, and should do so now, or the IEBC will certainly repeat the mess from August.

FAKE FORM 34AS

Second, the use of fake Form 34As and Bs is criminal. The IEBC regulations do not overtly state the exact format of the forms, stating instead that the IEBC shall use the prescribed forms.

These prescribed forms are then detailed in the legal contract that IEBC signed with Al Ghurair and which included security watermarks and serial numbers.

That means the forms then acquire legal status, meaning that using different or fake forms is a criminal offence.

All the Commissioners and senior officials involved in the elections, including the Returning Officers implicated, should be charged forthwith.

Moreover, the affidavit submitted in Court affirming these security measures could also be seen as perjury by the person swearing it, for they knew that there were fake forms used but decided to lie to the Court and to Kenyans.

JUDGMENT

Third, the process used by the IEBC, meant to side-step the IEBC vs. Maina Kiai and others judgment, is an illegality and criminal. The judgment set out the process clearly — from polling centre to constituency to Bomas — based on the constitutional requirement that presidential elections shall be conducted in every constituency and results declared shall be final.

This means that the results should have been declared at every polling station first, then at the constituency, accompanied by all relevant forms and able to be scrutinised by agents and observers on the ground.

So, rather than having strange and unclear numbers streaming on our TV screens, we would have been getting results from the constituencies as they were declared.

By streaming numbers clearly calculated to influence us on the winner the IEBC and its masters wanted, and with no backup information, the IEBC committed an illegality; a crime, not an irregularity.