Even as the country was on Wednesday coming to terms with the High Court ruling that could have far-reaching implications on the presidential election calendar, attention has turned to the electoral agency’s blunders which are costing the country billions of shillings.
First is the litany of cases, most of them self-inflicted, which the Independent Electoral and Boundaries Commission (IEBC) has lost at the taxpayer’s expense.
Then there is the wider cost which accrues from the uncertainty which the country has been thrown into following the bungled August 8 elections and the ongoing circus which is sure to cost the country more.
In ruling that Thirdway Alliance presidential candidate Ekuru Aukot be included in the October 26 repeat poll, High Court Judge John Mativo held that IEBC was wrong in taking the repeat poll ordered by the Supreme Court as a re-run when it was clear that it was a fresh election.
The other ruling which the commission has been criticised for misinterpreting relates to the IEBC vs Maina Kiai and others’ Appellate Court decision in June, which made votes counted at the polling station final.
The Supreme Court on September 1 held that the precedent did not absolve IEBC chairman Wafula Chebukati from the duty of verifying the results by counter-checking entries in forms 34A.
Many are now questioning how IEBC, whose chairman and CEO are lawyers, has a full-fledged legal department, retains a team of top legal experts and has an awesome legal war chest, could have made wrong decisions where they would have thought better.
While withdrawing from the October 26 presidential election on Tuesday, National Super Alliance (Nasa) leader Raila Odinga cited IEBC’s unwillingness to “undertake any changes to its operations and personnel to ensure that the illegalities and irregularities that led to the invalidation of the August 8 election do not happen again.”
At Sh50 billion, Kenya holds one of the most expensive elections in the world.
The budgetary allocation for the 2017 General Election was Sh49.9 billion, according to Treasury Principal Secretary Kamau Thugge.
“This is composed of direct and indirect election related expenses. Direct election expenses has an allocation of Sh33.3 billion while indirect expenses are allocated Sh16.6 billion,” The PS said in a Pre-election Economic and Fiscal Report released in July.
The Cabinet last month approved another Sh10 billion for the repeat poll and the commission has asked for an additional Sh3.7 billion.
Our attempts on Wednesday to find out what fraction of this goes to law suits were unsuccessful, but a look at what the commission paid out for the 2013 elections paints a grim situation in which lawyers may be viewing the agency as a willing cash cow.
Advocates who represented IEBC during and after the 2013 General Election were paid Sh2 billion.
The presidential petition gobbled up Sh568 million for a 14-day job while other election related petitions cost the taxpayer Sh486 million, a report of the Auditor-General says.
The commission had outstanding bills for legal services totalling to Sh1 billion as at June 2013, but some 68 advocates were paid the inflated amount, as part of the pending bills, bringing the total payout to Sh2 billion, the Auditor-General found.
The report, tabled in Parliament in March, faulted the commission for not providing documentary evidence of cases represented to justify and support payments in excess of the recorded pending bills.
The Auditor-General also put the IEBC on the spot for paying Sh17 million to five law firms that were not pre-qualified and were single sourced contrary to the law.
Another Sh328 million was paid to 30 law firms during the 2015/16 financial year without lawful contracts.
With a record 339 petitions arising from the August 8 elections, the haemorrhage from the commission must be much higher with some conservative estimates setting the cost of an election petition at an average of Sh5 million.
This means the taxpayer could lose at least Sh1.5 billion on these cases, excluding the presidential petition, which could cost between Sh500 million and Sh1 billion, after factoring in inflation.