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Ezra Chiloba opens Pandora’s box on poll ruling

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By PATRICK LANG’AT
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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.

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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.



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Public officers above 58 years and with pre-existing conditions told to work from home: The Standard

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Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.

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However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
SEE ALSO: Thinking inside the cardboard box for post-lockdown work stations
Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
SEE ALSO: Working from home could be blessing in disguise for persons with disabilities
Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.

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Uhuru convenes summit to review rising Covid-19 cases: The Standard

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President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
SEE ALSO: Sakaja resigns from Covid-19 Senate committee, in court tomorrow

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Drastic life changes affecting mental health

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Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.

KBC Radio_KICD Timetable

Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.

Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.

The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.

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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.

In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020.  It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.

A study by Dr. Habil Otanga,  a Lecturer at the University of Nairobi, Department of Psychology says  that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.

The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.

KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.

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Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.

As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.

“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”

Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.

“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.

Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.

“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”

Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.

“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.

Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.

Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.

She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.

Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.

“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added

Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.

“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and  also engage in   reading that would  help expand their knowledge.

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