The electoral commission will meet on Monday to consider how to handle concerns on conducting the repeat presidential election in some counties, chairman Wafula Chebukati has told the Nation.
The impending move follows days of sustained attacks on officials of the Independent Electoral and Boundaries Commission (IEBC) at training centres in parts of Siaya, Kisumu, Vihiga, Homa Bay and Migori counties by supporters of the National Super Alliance (Nasa).
“We shall invoke provisions of the law, specifically Section 55 (B) of the Elections Act read together with Article 138 (2) of the Constitution in such circumstances. The environment is not conducive,” IEBC Chairman Wafula Chebukati said on Saturday.
The Nation established that the decision to stop the voting in areas considered dangerous is anchored on a legal opinion derived from Section 55 (B) of the Elections Act adopted by the commission on the way out of the prevailing hostility towards IEBC officials.
“Of essence in invoking section 55B, the Commission should be able to announce a new date for the affected areas, ideally any date within seven days but where this is not attainable, then the Commission will be required to determine thereof whether the results can rightly be declared without conduct of the postponed elections and if at all this would then qualify as a legitimate election,” the opinion reads.
The section allows IEBC to postpone an election in case of a breach of peace, natural disaster or in case of an electoral malpractice of a gravity to make it impossible for the election to proceed.
Mr Chebukati said he had reached out to the Inspector- General of Police Joseph Boinnet to give more attention to the troubled areas.
“I wrote to the IG yesterday (Friday) informing him of the situation. “I wouldn’t want a single employee of IEBC injured or property of transporters destroyed because of the elections,” he said.
An announcement confirming this could come as soon as Tuesday further putting to test the whole credibility of the elections after President Uhuru Kenyatta’s main challenger and Nasa candidate in August 8 election, Raila Odinga, pulled out of the race citing an unfavourable playing field. Mr Odinga has asked his supporters not to participate in the Thursday exercise.
On Friday, county election managers from the five counties wrote to the IEBC chairman Chebukati saying they were increasingly finding it hard to freely work owing to the fact that some of the staff had opted out while those remaining were operating under fear.
They said they have credible information they will be targeted on voting day by the opposition supporters with staff drawn from those regions concerned their homes had been earmarked for arson.
Six commissioners – Consolata Maina (vice-chairperson), Margaret Mwachanya, Paul Kurgat, Boya Molu and Prof Abdi Guliye and Mr Chebukati will finalise a decision on this at a plenary session on Monday with four days to the D-day. The commission has lost the seventh commissioner, Dr Roselyn Akombe, who resigned last week blaming external interference on the commission’s work.
It also emerged that Mr Chebukati had pushed for the option of going to the Supreme Court to get direction on how to proceed following Mr Odinga’s withdrawal from the race but he was outvoted by the commissioners who felt the idea was not the best.
By the time of publishing this story, President Kenyatta was yet to confirm whether he would honour an invitation from Mr Chebukati to discuss preparations for the repeat election.
Mr Chebukati has scheduled the meeting with President Kenyatta for Monday.
“If I get a confirmation, I have no problem meeting him as a referee. If it does not come, there is nothing I can do, at least I shall have tried reaching out,” the chairman said.
The Secretary-General of Mr Kenyatta’s party Raphael Tuju on Thursday ruled out his boss meeting the chairman, saying such an engagement would not shift the Election Day.
“As a referee, Chebukati cannot call the teams and ask them: Hey guys, when do you want us to hold the elections? What rules should we use? In other words, there is no room for dialogue,” Mr Tuju said.
Jubilee has opposed any idea of pushing the polls beyond Thursday and they will likely not welcome such a move, at least according to its officials we spoke to.
IEBC finds itself in a “catch 22” situation. If they go on with elections, Nasa charges they are pro-Jubilee. If they were to postpone, Jubilee would say they are Nasa-leaning.
Mr Chebukati says he is a disinterested referee. He is the man in whose hands the future of Kenya lies.
He has in the last few days come out forceful, telling political players he will not take mediocrity from them.
As it stands, only Mr Kenyatta and Mr Odinga can, in a bipartisan way, agree to change the Thursday poll.
Legal experts opine the duo can file a consent at the Supreme Court agreeing on varying the date to such a time the environment is conducive. The prospect of such is, however, getting dim by the day with the leaders pulling in different directions.
Were voting to be postponed in a number of electoral areas, the country would have to wait longer for the impasse over the repeat election to be resolved since the regions which would not have participated in the polls would likely challenge the outcome in court arguing that Article 138 (2) on the procedure of electing a President provides that an election must be carried out in all the 290 constituencies.
To be validly elected, a presidential winner has to get at least 25 per cent of the votes cast in 24 counties.
But the panel points out the Supreme Court would, however, have to determine whether the section is inconsistent with the Constitution or whether such a postponement would affect provisions of Article 138 (2).
The advice was presented by a team of eminent lawyers contracted last week even as it emerged there would be a new team of lawyers advising and handling all petitions going forward.
IEBC has recorded a losing streak in almost all petitions in the courts, chiefly the presidential election petition which went Mr Odinga’s way even after maintaining senior lawyers. Some of the commissioners feel it was high time different legal minds were brought on board.
Having given an ultimatum to the leading presidential hopefuls, Mr Kenyatta and Mr Odinga on the one hand, and some of his staff on the other on issues he wanted addressed lest he bolts out, Mr Chebukati sought to assure the country he was firmly in charge of the operations at the IEBC after some of the directors he was not comfortable with like Chief Executive Officer Ezra Chiloba left.
“A lot of changes have taken place. The Project Team is fully in charge now. My only worry is political violence. The environment is not conducive,” he said.
He called on Mr Odinga to reconsider his poll boycott plan.
“Nasa should find comfort in the changes we have undertaken now. The officers they did not want have taken leave and the Project Team is now in charge,” he said.
Mr Odinga, however, retorted that the officers in question have left intact a system that would still deliver victory to Mr Kenyatta against the popular will.
The IEBC boss, however, says the political environment is still not conducive for a fair poll.
At the same time, Ms Maina announced they were finalising training for clerks and setting up of tallying centres.
“The commission is in the process of dispatching materials though the rains have been a challenge. In fact in some areas it will be a nightmare because the roads are flooded. In such areas we will arrange for airlifting of materials but we also hope the weatherman is right in the forecast because we have been informed that the current downpour should have subsided by the time we go to the polls,” said the vice-chairperson.