On September 1, 2017, in a 4-2 majority decision, the Supreme Court annulled President Uhuru Kenyatta’s election, terming it “invalid, null and void” and sending shock waves across the country.
But for the Independent Electoral and Boundaries Commission (IEBC), it has now emerged, their case had been lost even before the six-judge bench retreated to write their judgment on August 29 following a two-day marathon hearing.
“Based on our own observation, you had a feeling that something wrong was going to happen; from the questions the judges were asking, you got a sense that it was a lost cause,” IEBC chief executive Ezra Chiloba told the Nation in an interview.
Mr Chiloba spoke just a few days before the IEBC embarked on a post-election evaluation forum in Nairobi, which ended Thursday, and where the conduct of the annulled poll, and the repeat election in October, were analysed by experts, the civil society, and election observers.
In reflecting on the landmark ruling — the first in Africa, and only the fourth in the world — Mr Chiloba argues that right from the start the Supreme Court had gone out of their way to find fault with how they had conducted the election.
“When you are presiding over such a dispute, you must give the benefit of doubt to the institutions that people have set for themselves — and given delegated power — that they will do the right thing. In this case, we saw an approach of ‘IEBC has done something wrong, let us go and find out what,'” Mr Chiloba said.
Mr Chiloba also revisited the results of the scrutiny ordered by the Supreme Court, and which sampled 4,299 Forms 34As from five counties — an analysis Mr Chiloba told investigators in October last year were in ‘sharp contrast’ with what the commission had presented.
Out of those, the scrutiny showed that 481 of them were carbon copies but signed with another 157 not signed, 269 original copies not signed, with 26 other originals signed, and scanned.
A total of 58 were photocopies of which 46 had not been signed, and 11 had no watermark security feature.
“We believe that the scrutiny of forms led by the registrar of the Supreme Court did not reflect the true nature of the forms as delivered to the court by the commission,” he said of the scrutiny that the petitioners termed as the smoking gun, and which played a huge part in the annulment of the poll.
Mr Chiloba was referring to the requirement in law for the commission to present to the court certified copies of all results declaration forms four days after the filing of a petition, and which he believes the court did not counter-check against what was said in the report.
“We were not given an opportunity to validate the report, or sign off on it when it was handed over to lawyers, who were given 10 minutes to argue on it before court.”
The veracity of the report on the scrutiny of the forms is a matter also broached by Justice Njoki Ndung’u in her dissenting opinion in which she faulted her colleagues who, she said, had not counter-checked the details in the scrutiny report against the forms submitted to the court even before the case started.
Justice Ndung’u checked the forms against the report and, in a detailed report, documented that all the forms in dispute had the security features the scrutiny report had said were lacking.
“By subjecting the integrity of the election to considerations of design, that are neither statutory nor regulatory, the majority has not only threatened the people’s belief in the electoral system, it has overburdened and in fact, negated the electorate‘s right to franchise,” Justice Ndung’u said in her dissenting judgment.
Going forward, Mr Chiloba proposes, a proper framework for scrutiny should be set, with clear roles for the commission, the petitioners, the president-elect, and the court.
In their ruling, Chief Justice David Maraga, his deputy Philomena Mwilu, and Justices Isaac Lenaola and Smokin Wanjala ruled that the commission had failed to follow the law, and its process of results transmission was “jumbled up” — one that CJ Maraga in an interview last month said lacked transparency.
In analysing the issue of results transmission, the Supreme Court narrowed down on 11,000 polling stations, some of them in Kiambu, Murang’a, Kisumu Town, and other places that generally have good network, and which the IEBC said could not transmit their results forms because of lack of network.
“It is common knowledge that most parts of those counties have fairly good road network infrastructure.
“Even if we were to accept that all of them are off the 3G and/or 4G network range, it would take, at most, a few hours for the presiding officers to travel to vantage points from where they would electronically transmit the results,” the judges ruled, terming the failure an “inexcusable contravention”. This indictment, Mr Chiloba believes, was erroneous.
At the time of declaring the final result, he said, “IEBC had received all the forms, and were in custody of various returning officers since the Maina Kiai case at the Court of Appeal said the commission was everywhere”.
“While all the results forms at the polling stations were transmitted electronically, results at the constituency tallying centre were declared based on all forms from the polling stations,” he said.
“The interpretation by the Court of Appeal in the Maina Kiai case brought in some inconsistencies that led to a confusing jurisprudence where, while the Court of Appeal told us that the chairman of the commission should not verify results at the national tallying centre and the returning officers need not troop there, the Supreme Court was indicting us for not doing what we were told not to attempt to do, without vacating the Court of Appeal’s findings,” Mr Chiloba argues.
In the Maina Kiai case, the Court of Appeal termed it as ‘hypocritical as it is incongruous” for the IEBC chairman to want to verify results already seen by his representatives in the polling stations and constituencies, saying any attempt to “correct, vary, confirm, alter, modify or adjust” was to put on himself an “illegitimate power”.
To buttress his view, Mr Chiloba points to the repeat election where the IEBC required all its returning officers to troop to the national tallying centre, an act he says was in tandem with the first Supreme Court ruling, but appeared to deviate from the Maina Kiai case that he believes played a large part in their first loss.
But while he faulted the top court, Mr Chiloba appeared to take their own share of the blame, saying there was a “lack of coherency in our legal team”, an admission that seems to stem from the fact that many felt the commission either did not explain itself well at the apex court, or seemed like they were wishing away some important aspects of the petition.
In the second petition, IEBC dropped Senior Counsel Paul Muite, law professor PLO Lumumba, for a team led by Waweru Gatonye; and that focused more on showing the court the complexity of the elections, and how IEBC had gone out of its way to hold a credible election.
“The irony is that while the Supreme Court case inspired many petitions at the lower courts, over 90 percent of the over 300 cases have been thrown out, and almost all that succeeded were attributed to the conduct of the candidates themselves, not the commission,” Mr Chiloba said.
In the interview, he also addressed issues of an implosion in the commission that the resignation of Dr Roselyne Akombe in October 2017, and that of commissioners Connie Nkatha, Margaret Mwachanya, and Paul Kurgat — summed up by the embattled chief executive’s publicised disagreements with chairman Wafula Chebukati. And Mr Chiloba does not have straight answer for it.
“The Kriegler commission was right: A commission should not be put in place less than two years to the elections,” Mr Chiloba said, suggesting that the commission unveiled in January 2017, just a few months to the elections, did not have enough time to gel with the secretariat.