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Verdict on Kenya’s presidential election petition: Five reasons the judgment fails the legal test – The East African, April 20, 2013

Justice Robert H. Jackson once said of the US Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.”

The infallibility that finality brings may, in the long view, be one of the few merits of the Supreme Court’s much awaited judgment on the presidential petitions.

Sixty per cent of the judgment, by length, is a leisurely rehash of the facts and arguments made by the parties in court. Everything else is given short shrift: Seven paragraphs are spent on reviewing and resolving the issue of the failed technology; another nine paragraphs dispose of the IEBC’s discretion to do manual tallies; 11 paragraphs are dedicated to the voters register and, astonishingly for a court given to brevity, 27 paragraphs are set aside to explain why rejected votes must not count in computing presidential percentages.

To paraphrase an old cynic’s quip, this judgment is both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.

This article offers five reasons for this conclusion:

First, there is the Court’s reliance on extremely backward Nigerian authorities urged on it by the Attorney General, Prof Githu Muigai, acting as amicus curiae. Second, there is its tolerant and uncritical acceptance of the IEBC’s explanations about the ever-fluid totals in multiple voters’ registers and what this means in practice. Third, there is the question of tallying and especially, what the Court’s own tallies show but is not properly reflected in the judgment. Fourth, there is the Court’s use of subsidiary legislation to limit the meaning of “votes cast,” an unambiguous phrase in the Constitution. Finally, there is evidential foreclosure that the Court imposes on itself by taking judicial notice of technology failures instead of treating IEBC as spurious, as urged by petitioners.

Backward looking, mean-spirited, cramped Nigerian precedent

Let us start at the beginning. Central to the Court’s judgment is what the petitioners needed to prove and to what standard they should have proved it in order to get a remedy. The Court says that the answer to that question is “well exemplified” in Nigerian case law.

Apropos of Nigerian inspiration, it concludes that a petitioner must prove that the law was not complied with and also that the failure to comply affected the validity of the elections. That is the legal burden. What is the standard of proof needed? The court seems unsure.

In principle, it says, this should be above a “balance of probability” but below “beyond reasonable doubt.” This means a place in-between the standard in a civil case and that in a criminal case.

But the Supreme Court has also invented a dramatic new standard for the presidential election. A petitioner challenging a president-elect who has won in a first round election, as President Uhuru Kenyatta did, must provide proof beyond reasonable doubt. But what constitutional principle is the court vindicating here? None that one can readily see.

All election results are about data. There are no gradations of winning. Why, then, in principle, should exactness in electoral thresholds, say 50 per cent plus one and 25 per cent in at least half the counties impose on a presidential petitioner the duty to discharge a higher standard of proof – than say an MP challenging a victor chosen on the basis of “a majority of votes cast?”

Or maybe this is the Court’s method of radically curtailing the number of petitions that can be brought against the president-elect. Since most of the evidence of wrongdoing will be in the hands of the IEBC — or a similar body — it is extremely difficult to see how a petitioner could ever succeed.

This cannot be what Kenyans thought a new Constitution was meant to do, shield an elected leader from being subject to an election petition. In fact, it seems more likely than not, that Kenya will never have a run-off election so long as a candidate can, by hook or crook, get himself declared elected. The onerous standard of proof would be incredibly difficult to discharge.

The effect of this new standard is that a petitioner who questions the IEBC’s maths, as Raila Odinga and Gladwell Otieno did, is then subject to the same standard of proof as a person who says that a president-elect has won by corruption, bribery and conmanship.

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This is a giant jurisprudential step backwards. But even more troubling is whether this is the standard that the Court actually used in deciding these petitions. The judgment is completely hazy about what standard of proof it has applied to what issue in order to answer the specific questions raised in the petitions.

But the court takes even bigger steps backwards in relying on the Nigerian cases. The point at issue is what effect IEBC’s illegalities should have on the validity of an election. The relevant law is Section 83 of the Elections Act. That Section is not a model of clarity. Paraphrased, it says that to invalidate an election in Kenya because of irregularities or illegalities either one of two conditions, but not necessarily both together, must be met.

One, that the election has not been conducted according to the principles laid down in the Constitution and in written law or, two, that though the irregularities and illegalities have not violated constitutional principles they have affected the result of the election. The use of the word “or” in this section means that these two conditions are not cumulative, either one of them is sufficient.

But that is not how Attorney General Githu Muigai, the Supreme Court of Kenya and the Nigeria cases cited as authorities are reading this provision. They say, instead, that the two conditions are cumulative. This means that a petitioner must prove that illegalities have been committed and also that those illegalities have affected the result.

In law, “affect the result” means that without the illegalities somebody else, other than the person who won, would have taken the election. For Raila Odinga, this means that he was expected to prove that illegalities were committed and also that without those illegalities he would have won the election.

But since the Court has created a new standard of proof, it seems that he needed to prove that he had won the election beyond reasonable doubt. The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr Odinga could show that the irregularities were so gross that everything about the election is in doubt. Such success in Court would not necessarily be to his benefit. The scale of illegalities could be such that he was unable to show beyond reasonable doubt that he, rather than fellow contestant Musalia Mudavadi, would have won the election. In that case, the result announced by IEBC would stand. This, surely, cannot be good law.

Questionable jurisprudence
That we have taken the nastiest Nigerian case law and embedded it in our new Constitution would shock the Nigerians themselves.

Indeed a Nigerian colleague who has read the judgment is aghast: “It is tragic that the Court has relied on some of the most awful and questionable jurisprudence from the Nigerian Supreme Court on elections.”

In lamenting thus, my friend echoes the views of his senior, Prof Ben Nwabueze, arguably Africa’s most accomplished comparative constitutional lawyer. Reviewing the very case law Kenya has now approvingly borrowed, Prof Nwabueze excoriated the Nigerian Supreme Court for its “discreditable” role in wilfully conferring judicial legitimacy on the 2003 and 2007 presidential elections in Nigeria.< /p>

He lampooned the judges for failing to “appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency.”

Another Nigerian scholar points to a more progressive line of cases: Alhaji Mohammed D. Yusuf v. Chief Olusegun A. Obasanjo; Buhari v. Obasanjo and the older case of Swem v. Dzungwe. These cases have applied the principle that best represents the meaning of our Section 83. In applying the first limb of Section 84, namely, that an illegally conducted election is invalid even if the result is not affected, Lord Denning stated the rule thus: An election conducted so badly that it does not substantially comply with the law is invalid, “irrespective of whether the result was affected, or not.”

Another judge explained the reason: “An election which is conducted in violation of the principles of an election by ballot is no real election.” Similar reasoning had applied in the Hackney Case, an earlier decision. In that case, two out of 19 polling stations had been closed all day and 5,000 voters could not vote. That election was invalid.

Conversely, the case of Gunn v. Sharpe applied the second limb of the principle: An election will be held invalid even if it substantially complies with the law so long as the result is affected. Here, the election was invalid because 102 ballot papers that should have been stamped had not been and this had affected the result.

The core issue, to round off this discussion, is straightforward: Which of the two readings of Section 83 would promote the open, democratic, accountable government ethos of the Constitution? Certainly not the backward looking, mean-spirited, cramped reading of the law that weak-kneed Nigerian courts have foisted on the hapless public, and which our Supreme Court so happily borrows.

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Voters register: A milk-fed turkey to future fraudsters

So much for the Court turning to Nigerian case law. However, matters don’t improve much when we turn to the second point, the Court’s conclusions on the voters register. Bluntly put, the Court’s decision on this point has kicked open the door to future election fraudsters.

In rejecting the petitioners’ argument that there must be a Principal Register, the Court holds that there is no single document called the “Principal Register of Voters.” What there is, it says, is an “amalgam of several parts prepared to cater for diverse groups of electors.”

This, surely, is a non sequitur. It does not follow from the fact that the law accepts that a voters register can be broken down into sub-registers and stored in multiple forms, manual and electronic, that therefore the law does not require the IEBC to “publish and publicise” a principal register. On the Court’s holding, the voters register of the future will be what the IEBC says it is at whatever stage of the election.

Indeed, this is what IEBC appears to have been doing all along these past three months. Four documents have been called Voters Register: the Provisional Register of December 18, 2012 with 14,340,036 voters; the Gazetted Register of February 18, 2013, with 14,352,545 voters; the March Register, given to political parties on the eve of the election with 14,336,842 voters and the March 9, 2013 register which was put out with presidential results with 14,352,536 voters. It is this last, the Green Book, which the Supreme Court now treats as the legitimate Voters’ Register even though there is a Gazetted Register, that of February 18.

Does it matter? On the face of it, it does not seem to. After all, there is a difference of only 12,509 voters between the register of February 18, 2013 and that of December 18, 2012. A difference of less than one per cent of registered voters between the highest recorded and lowest recorded number of voters is, as the IEBC said, statistically insignificant.

Yet if we look behind the small discrepancies between the global totals, we see huge variations in regional and constituency numbers. There are large subtractions from and even larger additions to the register after December 18, 2012.

Arguments

In open court, during the hearing, the arguments seemed stuck on explaining the 36,236 voters who the IEBC said were physically disabled but eligible voters without biometrics. The Court accepted this explanation; after all, it is hard to criticise the cartel of good intentions, among whom the IEBC numbers.

However, the law is that even disabled people should have registered by December 18, 2012. There is therefore no reason for them to be added to the Register only after the Principal Register has been gazetted, that is after February 18, 2013. But even if one discounts this number, there is still a lot more explaining for IEBC to do.

Consider this: Shortly after December 18, 2012, some 13,790 voters in Coast and Nyanza were subtracted from the register; 50,102 voters were subtracted from the register in Nairobi and 2,938 voters were subtracted from Western Province register. These subtractions seem plausible: They may be cases in which essential personal details are missing and IEBC had to remove the names from the record. But, and this is the question the judgment never asks, why are there also so many additions? In Central Province and Rift Valley, 68,836 voters were added to the register; 6,604 voters were added in North Eastern and 4,222 voters were added in Eastern Province.

All these facts were pointed out in the petitions: IEBC did not explain any of the additions; it did not explain why Makueni Constituency had four different voter registration figures for the presidential election, the governor election, the senator election and for the national assembly election. It did not explain why Othaya Constituency had three voter registration figures: 46,848 at the close of registration; an additional 383 by voting day and a total of 47,293 on the final announcement.

Even more damning, the petitioners said that IEBC had tinkered with the Register in 45 out of 47 counties, adding between 101 and 8,516 new voters in particular constituencies. In Turkana County alone five constituencies got added voters: Loima got an additional 4,519 voters; Turkana Central another 8,516; Turkana East, 1,867; Turkana North an additional 5,122 and Turkana South another 3,957.

In West Pokot County, Kacheliba received an additional 1,911; Kapenguria a further 4,229; Pokot South another 4,988 and Sigor a total of 1,964. The five constituencies in Trans-Nzoia County received 13,288 new voters.

Two questions arise. Are these additions lawful? Would these numbers have affected the result? Since the Court’s judgment does not analyse this evidence, it does not answer either of these two questions. The judgment assumes, without analysis, that the integrity of the Register had no effect on the result.

That is a dubious assumption: Small numbers eventually add up. If you had a computer programme that stole 10 votes per station in 25,000 polling stations, the national tally of stolen votes is a quarter of a million votes. With a fluid register, the theft would never be detected. This means that allowing the IEBC to keep an indeterminate register, as the Court’s decision most surely has done, is to gift a milk-fed turkey to future fraudsters

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But we do not have to speculate how the register could affect the result. Let us use the three post-December 18 registers to simulate the effect on the results of the 22 polling stations that Mr Odinga had challenged and that the court had had re-tallied.

Using the registration figures in the Form 34s from these polling stations, 16 out of t
he 22 polling stations had more than 100 per cent voter turnout. If you use the figures in Form 36 or in the Register of the 18th of February, 18 out of 22 would have had more than 100 per cent voter-turnout. Finally, if you used the registration figures in the Green Book, which neither the presiding officers at the polling stations nor the returning officers at the constituency level had used, two polling stations would have more than 100 per cent voter turnout.

In law, the results from a polling station that reports more than 100 per cent voter turnout should be cancelled. So, take your pick. Is the IEBC to cancel the results of 18 polling stations? Or 16 polling stations? Or two polling stations?

This naturally leads to the third point, how the tallying was done and whether the Court’s conclusion on the issue is sound. Here, there are two issues: One, the IEBC’s number-work and two, the status of provisional results vis a vis the final result.

The petitioners argued that provisional results are needed to validate final results. From this it followed that without them, final results are invalid. The Court judgment disagrees. It implicitly reads Regulation 82, and Section 39 of the Elections Act, as imposing no requirement that final results be verified against provisional results. The Court comes to this conclusion in a roundabout way. It asks and then answers a question that was only tangentially before it: Are final results invalid just because provisional results were not electronically transmitted?

Notice though. By framing the issue thus, the Court has erected a straw man that it has then demolished with aplomb. The straw man allows the Court to duck the difficult question of how “to verify and validate final results without provisional results” and to answer, instead, the easier question “whether the means of transmitting provisional results affect the validity of final result.”

Does this matter? The poignant truth is that it does. After the 2007 crisis, Justice Kriegler recommended electronic transmission of results. In the rules that were subsequently drafted, results from polling stations, transmitted electronically, would be provisional. And there are two senses in which polling station results are provisional.

First, in Kenya there is no electoral unit that corresponds to a polling station. Technically then, a result announced by the presiding officer at the polling station is not really a result. Legally, at least in petition law, a result refers to an identifiable winner or loser. To the extent that not a single polling station gives such an outcome, all the results announced there and put in Form 34 are provisional until cumulated with other polling station results to give a final result, whether for the MP, the governor or the president.

Second, the law places polling stations results on provisional “probation” to allow verification before a final valid result can be announced. That process involves cross-checking crucial facts: Have more people voted than are registered? Did ineligible voters vote?

Seen thus, the question of whether the failed electronic transmission of provisional results affects the validity of the final result is a red herring. The point is that transmission failures left IEBC without the means to cross-check and verify tallies in Form 36. But that failure is of IEBC’s own making since they made no effort to gather Form 34s. Without Form 34s, how did IEBC actually verify the final results that it announced to the public?

Manual or electronic

Unfortunately, the way the Court settles this issue allows the IEBC to affirm and deny what it pleases when it pleases. Consider. IEBC says — and the Court agrees — that Kenya’s voting system is basically manual. Electronics are mere facilitators. Once you grant that, the conclusion follows as a matter of logic: The failed electronic transmission could not have affected the validity of the presidential result.

This piece of sophistry should have invited a sharp rebuke: If electronics are surplus to requirement, what safeguards had IEBC put in place to tally and verify final results against Form 34 using the manual system? IEBC never answers that question mainly because it has been allowed to speak from both sides of the mouth: It can impugn technology as failure-prone and also evade the duty to create a fail-safe manual system to do that which the technology should have done.

The lack of clarity in the Court’s judgment about IEBC’s duty to ensure that final results could be verified against provisional results means that the country had to accept whatever numbers the IEBC gave. As subsequent reviews have shown, especially reviews done by Dr Seema K. Shah, the IEBC cannot be trusted with registers, technology or numbers. Dr Shah observed and reported on the Court-ordered tally of the 33,400 constituencies. Her report is a collection of IEBC’s riotous assembly of mis-tallies and contradictions.

Many Form 34s had more votes cast than registered voters. In Turbo constituency, polling station 69, stream 2, some 784 votes were cast but only 755 were registered. In polling station 71, stream 2, there were 741 votes cast but only 716 were registered. In Kacheliba, polling station 112, there were 215 votes cast but only 214 registered voters. In these polling stations, the results should have been cancelled.

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In some Form 34s, not all presidential candidates were listed and, therefore, one cannot tell whether they got no votes or that their votes disappeared. In Baringo South, polling station 91, stream 1, only Uhuru Kenyatta, Raila Odinga and Paul Muite appeared on Form 34.

In many Form 34s, the numbers do not add up. In Kacheliba constituency, polling station 102, though the votes cast are recorded as 0, there are 170 rejected votes and 170 valid votes. In Baringo South, polling station 117, stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, is 134. In Cherangany, polling station 2, stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, is 340. In Turkana North, polling station 12, the number of votes cast, 340, does not equal the number of valid votes, 340, plus the number of rejected votes (5).

Many Form 34s are missing altogether. There is no Form 34 for polling station 84 or for polling station 99 in Turkana North. Polling station 99 does not appear in the list of polling stations published on the IEBC website on February 24, 2013, but it does appear in the paper gazette. Form 34s for polling stations 92 and 113 in Turkana Central are missing.

Looking closely at these numbers, it is not surprising that some of the same constituencies whose the registers had unexplained additions — in Turkana, West Pokot and Trans-Nzoia — have cropped up yet again. Are these coincidences?

To be fair to the Court, one must ask what by way of report-back, its own scrutineers gave the judges. If they did get this information, why is it not reflected in their judgment? Or is it another case of it would have made no difference? Even if these numbers would have made no difference to the result, do they not in fact disclose that illegalities occurred?

Spoiled votes: Supreme Court goes fishing in the Seychelles

Let us now turn to the fourth issue, the question that took so much of the Court’s time: Do rejected votes count in computing the presidential percentages? Should they? Are rejected votes “cast votes” in computing percentages?

The Court holds that rejected votes do not count. Though the Court’s conclusion can be criticised, as it is in this analysis, it has the merit of
being clearly reasoned and properly explained. Why is the conclusion wrong then? The repealed Constitution said that the only votes that counted were the “valid votes cast.” The new Constitution says that it is “votes cast.”

Relying on the language of the Elections Act, the Elections Regulations and a decision from the Seychelles interpreting remarkably similar provisions in that country’s Constitution, the Supreme Court concludes that “votes cast” in the new Constitution means exactly the same as “valid votes cast” in the old Constitution.

There are two problems here: How to read clear language in law and two, what constitutional theory says about interpreting the Constitution. To the first point. In interpreting laws, words must be given their natural meaning. This rule is applied in all cases unless to do so leads to absurdities or the statute makes clear another meaning is intended.

The petitioner did not show, as we argue below, that a plain reading of the “votes cast” phrase leads to absurdities. When the language is clear, the Court must assume that the Constitution means what it says. In this case, the Supreme Court had no need to go fishing in Seychelles.

Second, in interpreting the Constitution, it is illegitimate to limit the broad language of the Constitution based on the language used in statute and regulations as the Court has done here. This is because of the hierarchy of laws: A regulation is only law because it is made under the authority of a statute and the statute is itself only law because it is made under the authority of the Constitution. The legitimacy of law flows backwards to the founding document.

The Court’s method of teasing out the meaning of a phrase in the Constitution by parsing similar phrases in inferior law suffers a double infirmity: It is wrong in theory and it is prohibited by the supremacy clause.

But there is a point of principle why rejected votes should count. The first limb of that point arises from the right to vote. The second limb arises from why the Constitution sets high electoral thresholds for the president in the first place.

As regards the first limb, the Court, like the petitioner here, assumes that the right to vote is equal to the right to choose one of the candidates on ballot. This assumption is wrong. The right to vote has three elements: The right to make a choice from among the candidates on the ballot; the right to refuse to participate in the election by abstaining and the right to cast a protest vote by rejecting all the candidates on the ballot. The right to cast a protest vote can be expressed by deliberately spoiling a ballot.

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Saying that rejected ballots don’t count as “cast votes” implies that the person who goes to the queue and casts a protest vote against the candidates on the ballot is treated exactly as the one who stayed home. That is not the theory of our Constitution. Not if we take its language seriously. By equating the right to vote to a right to agree with one of the choices on the ballot, the Supreme Court has radically impoverished the meaning of the right to vote.

The second limb of this argument is numerical. The new Constitution wants to ensure that no candidate can win the presidency without a majority of the votes cast, more than 50 per cent, and a reasonably broad geographical base, 25 per cent of at least twenty four counties. Only if a candidate makes this threshold in the first round should he or she be declared elected president. A candidate, and the country, must suffer the inconvenience of a second round of elections to do what the Constitution requires. How do the rejected votes contribute to this math? Consider a simple election with 100 voters, two hugely unpopular candidates and 50 per cent plus one of “votes cast” needed for victory.

Some 60 per cent of the voters protest against both by spoiling their ballots. Candidate A, Grand Butcher, gets 35 votes and candidate B, Floating Scum, gets five votes. If you include rejected votes, Grand Butcher has only 35 per cent of the votes cast and cannot win in the first round. If you exclude rejected votes, Grand Butcher wins with 87.5 per cent of valid votes cast.

In such cases, a protest vote, as David Ndii points out to me, can be used to achieve either or both of two things: Deny a disliked candidate a first round victory or, if not that, long-term legitimacy. But what happens in the run-off? What is the point if both thugs will be running again? The point is that there is an incentive for either or both candidates to make themselves more pleasant to the electorate in the second round. Or, it may be that the huge protest vote may persuade the authorities that they need to tighten ethics laws so that Butcher and Scum don’t seek office in the future.

Did the technology fail or was it pushed?

Finally, we turn to the Court’s holding on technology failures. The Court takes judicial notice that technology, including electoral technology, is “rarely perfect.” With that assertion it shuts off its own factual inquiry as to whether technology failed or was pushed.

The IEBC said the technology failed. The petitioners said that the failures were so systemic that they show culpable negligence.

Again the Court’s short way with these arguments is way too short. When a country has invested Ksh10 billion or over a $100 million dollars in electoral technology in order to enhance the fairness of its elections and to eliminate fraud, it seems like a cruel betrayal to kill off the issue of why the pricey machines failed with the dispositive statement that “technology fails.”

There were very specific questions asked by the petitioners. IEBC did not convincingly respond to any. Why was the Electronic Voter Identification Device, EVID, never deployed? The IEBC had publicly assured Kenyans before the election that it had put in place mechanisms to ensure that the technology would work. Why did IEBC buy the kit but not get the connectivity required to make it work?
Why did the IEBC set up the authentication system on a GPRS platform knowing that this platform’s low capabilities could impair performance? Given GPRS data transmission rates of 56-114 kbps, against other higher performance locally available platforms such as EDGE (200 Kbps); 3G (above 200 kbps) was this a reasonable or responsible decision? Are these the standards an election court expects of a reasonable elections manager, like IEBC?

Instead of asking these difficult questions, the Court actually cut the IEBC more slack. It took judicial notice that many polling stations in rural Kenya are primary schools without electricity. But why should that excuse the IEBC?

IEBC toured the world in search of appropriate electoral solutions. Even at that early stage, it knew the state of power connectivity in Kenya. Knowing that the BVR system relies heavily on a steady supply of electricity for the laptops on which the systems run, was the IEBC deliberately misleading Kenyans when it said it had put in place measures to make the technology work?

If that announcement were not mendacious, what plans had IEBC actually made to provide backup power beyond the life of the one battery the computers started out on? In some stations, batteries had died within one hour of the opening of the polling. Is it technology failure or recklessness when the battery on the computer fails even before voting has begun?

On the results’ transmission systems there are even more questions, all raised by petitioners but none answered by IEBC nor broached by the Court.

Were the mobile phones that were to be used to transmit the results actually configured in advance or tested and confirmed to be fit for the purpose? Was the server that was set to receive the re
sults itself configured correctly? Was it ever tested? Why was there no in-built redundancy in the system as there ought to have been if the system were expected to be fail-safe? How was it possible that the loss of one server brought down the whole system?

Instead of engaging with these issues, the Court accepts the reverse logic urged on it by the IEBC, namely, the argument that the technology was meant to back up the primary manual system. This bizarre logic says, in effect, that Kenya set up a more accurate electoral system — BVR, EVID and Electronic Results transmission — in order to act as the back-up to the inaccurate and inefficient — and already proven to be so — manual system.

This is the first — hopefully the last — that we shall hear of a country buying state-of-the- art computer technology in order to provide an additional layer of security for its stone-age manual systems. In forward thinking countries, inefficient manual systems are at the bottom of the pile in the hierarchy of back-ups for layers of overlapping technologies.

To support its wobbly case, the IEBC marshalled two cases from the Philippines that ostensibly stand for the proposition that manual systems trump technology. According to the Kenya Court’s helpful summary of those cases, “the plaintiffs had based their claims on fears which they had, sparked by potential abuse and breakdown of technology, and the effect of this on the integrity of the electoral system.”

That completely mis-describes the cases. One case had nothing to do with technology, the other case was full of praise for technology. The first case, Douglas R. Cagas v the Commission on Elections, was based on a procedural technicality. The issue of electronic machines was irrelevant to that question and was sneaked in by the petitioner, Douglas R. Cagas, who had won the seat of Governor of the Region of Davao del Sur, just so as to frustrate the petition of his competitor, Claude P. Bautista.

Cagas wanted the Supreme Court to dismiss Bautista’s petition, which was yet to be finalised by a division of the Electoral Commission on the basis that the Court had already held that election machines were reliable and accurate in the earlier case of Roque, Jr. v. Commission on Elections. His argument was that since Bautista’s petition wanted to impugn a technology already endorsed by the court, it should be thrown out. The Court refused. The conclusion then is that in the Roque case, the court was strongly in favour of electoral technology. In the Cagas case, the court merely refused to create a presumption of infallibility of technology.

Stringent rules

The unhappy feeling one comes away from this judgment with is just how stringent the standard that the Court imposes on petitioners is. And, conversely, save for the rather tame recommendation that IEBC be investigated and maybe prosecuted, just how so very lenient the standard by which IEBC’s performance has been judged is.

To conclude: In the opening paragraphs of this lengthy but unpersuasive judgment, the Court grandly hoped that the case would be “viewed as a baseline for the Supreme Court’s perception of matters political.” One hopes not; the Supreme Court can do better.

Does this criticism impugn the decision that the Court has reached? Not really. Ultimately, it not whether one wins or loses in court, it is whether the loss or win is seen to be just. Parties look to the reasons that the Court gives to see why they have lost. Judicial reason is the primary tool by which we hold judges to account. The public judges the judges by the soundness of the reasons that they give for their decisions.

Sadly, as the saying is, in this judgment, the Supreme Court has only given us reasons that sound good, not good, sound reasons.

Wachira Maina is a constitutional lawyer

Numbers In The Voter Registration Just Won’t Add Up – The Star, April 13, 2013

Numbers do not lie. One lawyer said as much as he stood before the Supreme Court last week. “You can’t argue with the arithmetic.” It is unclear whether or not he realised the import of his words, for a look at the numbers referred to (but never explained) in court is quite revealing.

As the bedrock of a free and fair election, the voter registry is a crucial part of any electoral process. A legally verified and finalized list of eligible voters is vital, not only because it provides a check on fraud but because it provides a necessary constant for societal self-reflection.

The constant the voter registry provides allows for an analysis of voter turnout, overall and geographically distinct voting patterns and trends over time. A sound and reliable voter registry can help a society understand its own political behaviors, track these trends over time and space, and plan for the future.

It is thus not hard to see why the voter register was at the heart of the Kenyan Supreme Court case. Indeed, simple mathematics can help us to determine the validity of the claims the Independent Electoral and Boundaries Commission (IEBC) made with regard to the voter register.

First, the IEBC’s provisional register, which was compiled after the close of the voter registration process on December 18, 2010, contained 14,337,399 voters.

In court last week, the Commission claimed that there is also a special register, made up of 36,236 Kenyans who were eligible to vote but whose biometrics could not be captured because of physical disabilities.

In addition, the IEBC explained that there were 12 trainees, who also were not initially registered. Together, the provisional register, the special register and the 12 trainees total 14,373,647 voters.

After the closure of the register on December 18, 2012, there was no legal way to add any more voters. Only a subtraction could have been countenanced to address instances of double registration or the identification of other ineligible Kenyans. Indeed, the IEBC claimed that it had deleted some 20,000 names from the provisional register, because those constituted cases of people who had registered more than once.

So, the provisional register less the 20,000 should equal 14,317,399. On top of this, the IEBC said that it had to add the special register and the 12 trainees, which should come to a total of 14,353,647.

Why, then, is the total number of registered voters as announced on March 9, 2013 by the IEBC actually 14,352,536? Actually, the figure announced by IEBC on March 9, 2013 and the 12 trainees together is equal to the principal register.

The “special” register does not seem to fit in at all. This final number, announced on March 9, is still 1,111 voters less than what the total should be, according to the IEBC’s own explanation.

What is more important, however, is that this explanation still does not clarify why ALL these voters were not gazetted in the principal register in February.

If it is true that the IEBC wrote down the names of everyone who registered in the “green book,” including those with and without biometrics, shouldn’t ALL the names have been included in the legally gazetted register?

Also, even if the IEBC can explain the 1,111 unaccounted for voters, what explains the fact that at the level of the polling station, the sum of the principal and special registers do not equal the green book number?

Out of the 22 contested stations, there was only one station in which the numbers added up. Second, what explains the political parties register, which was issued shortly before the election?

That list included 14,336,842 voters, which is completely out of the range of the other numbers. Why would the register become a moving target? Third, and perhaps more worrying than the plethora of registers, is the fact that even though additions and subtractions have impacted all areas in the country, there does appear to be a pattern with respect to some of the most striking changes.

Additions and subtractions were made to the register all over the country. Aggregating these changes by province shows that 68,836 voters were added to constituencies in Central Province and Rift Valley, while 14,122 subtractions were made in Nyanza and Coast provinces.

This pattern undermines the argument that the irregularities were clerical, random and scattered across the country. During the hearing of the petition challenging the validity of the election, one lawyer attempted to explain this by claiming that voter registration, as laid out in the Constitution, is a “continuous process.”

What he omitted from his explanation, however, is the fact that the Elections Act states that voter registration ceases for the 60-day decision 2013: Aggregating these changes by province shows that 68,836 voters were added to constitu- encies in Central Province and Rift Valley, while 14,122 subtractions were made in Nyanza and Coast provinces.

This pattern undermines the argument that the irregularities were clerical, random and scattered across the country. period before the election. Fourth, it is interesting to note that if the original numbers in the December register had been used, certain constituencies would have experienced a voter turnout in excess of 100 per cent.

For example, the voter turnout would have exceeded the registered voters in Pokot South (109%), Loima (106%), Samburu North (105%), Kajiado South (103%), and Sigor (102%). The revised numbers as per the February register make the turnout figures a bit more reasonable, with Pokot South at 93 per cent, Loima 80 per cent, Samburu North 88 per cent, Kajiado South 91 per cent and Sigor, 92 per cent.

They are still incredibly high when placed in the context of the history of turnout in these areas. All of this comes into much sharper focus when we look closely at certain key areas.

Take Turkana Central, where turnout was about 53 percent in 2002. In this election, the IEBC reported turnout in the constituency to have reached 74 percent, a jump of 21 percentage points.

Notably, this constituency also experienced 8,516 additions in voters between December and February, the most of any constituency in the country. When comparing Forms 34 from the following three polling stations in Turkana Central to the number of registered voters published in the principal register in February, there are some significant discrepancies.

In each of the following polling stations, the number of registered voters recorded on Form 34 is more than what the IEBC published. If the number published by the IEBC had been used, these polling stations would have shown voter turnout in excess of 100 percent.

This pattern can be seen in other areas as well. In a polling station in Tharaka, for instance, the original number of registered voters had been written over with another number on the Form 34.

The new number is larger, such that voter turnout does not exceed 100 percent. A look at the comments from the presiding officer on the form, however, is telling.

The presiding officer wrote, “The number of voters was higher than the registered voters. This was authorised by the RO* as he argued that they were registered at Constituency level” (*RO is Returning Officer).

A close look at the form shows a three-digit number beginning with 12. The last digit is not clear, but whatever it actually was, it clearly had to have been less than 166, the number written over the original figure.

This clearly leaves many questions unanswered. It’s now a waiting game, as the public anticipates the Supreme Court’s detailed judgment. We will have to see how the Court managed to resolve the existence of no less than six different registers and constantly changing voter totals – and then decide if we can also resolve it ourselves.

Dr Seema Shah was part o
f the Africa Centre for Open Governance observation team during the hearing of the presidential election petition.

Scrutinising Of Election Results: What Didn’t Reach The Supreme Court Judges – The Star, April 13, 2013

After observing the Supreme Court’s scrutiny of election results from the polling stations and the constituencies, I was surprised that the report presented to the judges barely scratched the surface of what we found.

On the first day of the pre-trial conference, before the hearings even began, the Supreme Court judges ordered judiciary staff to conduct a scrutiny of Forms 34 and Forms 36.

The court also ordered a re-tallying of 22 contested polling stations, alleged to have had serious problems. The order was a welcome one, as it affirmed hope in the independence of the court and seemed to indicate the judges’ commitment to fully understanding the myriad problems alleged by petitioners.

Soon after the process began, however, it became clear that it was fraught with problems. Security during the scrutiny was severely lacking. Judiciary employees, as well as agents for the petitioners and respondents, were initially divided into eight stations.

Each group was tasked with scrutinising all submitted Forms 34, which consisted of manually entering all the numerical data from Form 34 into a spreadsheet. All data from the eight scrutiny stations would then be transferred onto one central computer using flash drives.

It is unclear when these flash drives were issued and what the protocols were to secure them overnight. There was also little security around the central computer, which was intermittently surrounded by one group of people or another.

After these issues were brought to the attention of the judicial staff, armed guards were brought in. While that helped secure the room overnight, it did little to secure the main computer receiving all the data.

Omitted from the report

Our observation notes covering just one day of scrutiny showed 64 missing forms 34 from 14 different constituencies. The report to the judges, on the other hand, showed that Forms 34 from only 10 constituencies could not be found.

Notably, our notes show several instances in which the number of votes cast exceeded the number of registered voters. Those were not the only omissions.

On many forms, the numbers did not add up. For instance, the number of votes cast, as recorded, was not always the sum of valid and rejected votes. There were also differences between the aggregate number of valid votes as written out in numerals and in words. Which result was announced, the one in words or the one in numerals?

We also noted multiple copies of the same form, some of which contained identical figures and others of which included non-identical figures. Some forms were missing results for certain candidates, including instances where all candidates were not listed, or were listed with no corresponding result.

Often, figures were missing from the documents, and the numbers were illegible or had been changed without an authorising counter-signature. How did the judges end up receiving a partial report of the scrutiny?

Flawed methodology

The methodology for scrutinising the Form 36 – the document used to collate results at the constituency level — was also flawed and failed to show important discrepancies.

Our analysis showed that in some cases, the numbers for a particular polling station, as recorded on Form 36, were different from what was recorded on the corresponding Form 34.

There was no way to identify the problematic polling stations without using a polling-station level scrutiny of Form 36. Moreover, the methodology failed capture problems like missing polling stations on Form 36.

Based on our observation, the judiciary review also failed to highlight important differences between Forms 34 and Forms 36. It did not show, for instance, that in Isiolo North, the total number of votes calculated for Uhuru Kenyatta from all Forms 34 was 17,675.

On Form 36, Kenyatta is reported to have won 18,489. Where did 814 extra votes come from? In Turkana North, the Form 34 total for Kenyatta was 3,567, but Form 36 showed Kenyatta to have won 3,507 votes, which is 60 less votes than what was on the primary document.

Such discrepancies can be found for almost all the candidates’ results.It is also worth noting that it was impossible to fully observe the scrutiny process, because each station simultaneously reviewed multiple constituencies.

This meant that observers had to somehow keep an eye on all the different constituencies at the same time. Since there were only 10 observers from each side, it is not hard to see how being able to keep up with all the forms was difficult.

Also, each station was equipped with a large screen, which was meant to enhance transparency by showing the data being entered by judicial staff. Since more than one constituency was being entered at each station, though, not all data entry was transmitted to the screen.

Turnout beyond 100 per cent

It is now clear that the judiciary staff never carried out a re-tallying of the 22 contested polling stations as ordered. Instead, they simply reviewed and entered the data from the contested stations’ Forms 34 and Forms 36 into its spreadsheet.

In this way, then, it was no different from the general scrutiny of the forms. Inexplicably, its report on these stations highlighted only five as problematic. This was surprising, given that a simple calculation using the recorded figures showed four important anomalies.

First, in 16 polling stations, voter turnout as calculated using Form 34 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 301 per cent.

Second, in 18 polling stations, voter turnout as calculated using Form 36 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 450 per cent.

Third, and even more striking, was that there were two polling stations with voter turnout in excess of 100 per cent when using the green book, which the IEBC argued was the actual, complete register. One polling station in this category showed a 238 per cent turnout.

Lastly, it is only in one polling station that the sum of registered voters in the principal register and the special register equaled the number recorded in the green book.

Since the Respondents explained that the principal and special registers (as well as 12 trainees) together totaled the green book, the observed discrepancies are highly problematic and clearly undermine the Respondents’ claim. It will be interesting to see how the Supreme Court judges explain this when they release their judgment in less than 10 days’ time.

Dr Seema Shah was an observer for the Africa Centre for Open Governance during the scrutiny of results documents ordered by the Supreme Court

Scrutinising Of Election Results: What Didn’t Reach The Supreme Court Judges – The Star, April 13, 2013

After observing the Supreme Court’s scrutiny of election results from the polling stations and the constituencies, I was surprised that the report presented to the judges barely scratched the surface of what we found.

On the first day of the pre-trial conference, before the hearings even began, the Supreme Court judges ordered judiciary staff to conduct a scrutiny of Forms 34 and Forms 36.

The court also ordered a re-tallying of 22 contested polling stations, alleged to have had serious problems. The order was a welcome one, as it affirmed hope in the independence of the court and seemed to indicate the judges’ commitment to fully understanding the myriad problems alleged by petitioners.

Soon after the process began, however, it became clear that it was fraught with problems. Security during the scrutiny was severely lacking. Judiciary employees, as well as agents for the petitioners and respondents, were initially divided into eight stations.

Each group was tasked with scrutinising all submitted Forms 34, which consisted of manually entering all the numerical data from Form 34 into a spreadsheet. All data from the eight scrutiny stations would then be transferred onto one central computer using flash drives.

It is unclear when these flash drives were issued and what the protocols were to secure them overnight. There was also little security around the central computer, which was intermittently surrounded by one group of people or another.

After these issues were brought to the attention of the judicial staff, armed guards were brought in. While that helped secure the room overnight, it did little to secure the main computer receiving all the data.

Omitted from the report

Our observation notes covering just one day of scrutiny showed 64 missing forms 34 from 14 different constituencies. The report to the judges, on the other hand, showed that Forms 34 from only 10 constituencies could not be found.

Notably, our notes show several instances in which the number of votes cast exceeded the number of registered voters. Those were not the only omissions.

On many forms, the numbers did not add up. For instance, the number of votes cast, as recorded, was not always the sum of valid and rejected votes. There were also differences between the aggregate number of valid votes as written out in numerals and in words. Which result was announced, the one in words or the one in numerals?

We also noted multiple copies of the same form, some of which contained identical figures and others of which included non-identical figures. Some forms were missing results for certain candidates, including instances where all candidates were not listed, or were listed with no corresponding result.

Often, figures were missing from the documents, and the numbers were illegible or had been changed without an authorising counter-signature. How did the judges end up receiving a partial report of the scrutiny?

Flawed methodology

The methodology for scrutinising the Form 36 – the document used to collate results at the constituency level — was also flawed and failed to show important discrepancies.

Our analysis showed that in some cases, the numbers for a particular polling station, as recorded on Form 36, were different from what was recorded on the corresponding Form 34.

There was no way to identify the problematic polling stations without using a polling-station level scrutiny of Form 36. Moreover, the methodology failed capture problems like missing polling stations on Form 36.

Based on our observation, the judiciary review also failed to highlight important differences between Forms 34 and Forms 36. It did not show, for instance, that in Isiolo North, the total number of votes calculated for Uhuru Kenyatta from all Forms 34 was 17,675.

On Form 36, Kenyatta is reported to have won 18,489. Where did 814 extra votes come from? In Turkana North, the Form 34 total for Kenyatta was 3,567, but Form 36 showed Kenyatta to have won 3,507 votes, which is 60 less votes than what was on the primary document.

Such discrepancies can be found for almost all the candidates’ results.It is also worth noting that it was impossible to fully observe the scrutiny process, because each station simultaneously reviewed multiple constituencies.

This meant that observers had to somehow keep an eye on all the different constituencies at the same time. Since there were only 10 observers from each side, it is not hard to see how being able to keep up with all the forms was difficult.

Also, each station was equipped with a large screen, which was meant to enhance transparency by showing the data being entered by judicial staff. Since more than one constituency was being entered at each station, though, not all data entry was transmitted to the screen.

Turnout beyond 100 per cent

It is now clear that the judiciary staff never carried out a re-tallying of the 22 contested polling stations as ordered. Instead, they simply reviewed and entered the data from the contested stations’ Forms 34 and Forms 36 into its spreadsheet.

In this way, then, it was no different from the general scrutiny of the forms. Inexplicably, its report on these stations highlighted only five as problematic. This was surprising, given that a simple calculation using the recorded figures showed four important anomalies.

First, in 16 polling stations, voter turnout as calculated using Form 34 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 301 per cent.

Second, in 18 polling stations, voter turnout as calculated using Form 36 and the principal register exceeded 100 per cent. The largest recorded turnout in this category was 450 per cent.

Third, and even more striking, was that there were two polling stations with voter turnout in excess of 100 per cent when using the green book, which the IEBC argued was the actual, complete register. One polling station in this category showed a 238 per cent turnout.

Lastly, it is only in one polling station that the sum of registered voters in the principal register and the special register equaled the number recorded in the green book.

Since the Respondents explained that the principal and special registers (as well as 12 trainees) together totaled the green book, the observed discrepancies are highly problematic and clearly undermine the Respondents’ claim. It will be interesting to see how the Supreme Court judges explain this when they release their judgment in less than 10 days’ time.

Dr Seema Shah was an observer for the Africa Centre for Open Governance during the scrutiny of results documents ordered by the Supreme Court

Numbers In The Voter Registration Just Won’t Add Up – The Star, April 13, 2013

Numbers do not lie. One lawyer said as much as he stood before the Supreme Court last week. “You can’t argue with the arithmetic.” It is unclear whether or not he realised the import of his words, for a look at the numbers referred to (but never explained) in court is quite revealing.

As the bedrock of a free and fair election, the voter registry is a crucial part of any electoral process. A legally verified and finalized list of eligible voters is vital, not only because it provides a check on fraud but because it provides a necessary constant for societal self-reflection.

The constant the voter registry provides allows for an analysis of voter turnout, overall and geographically distinct voting patterns and trends over time. A sound and reliable voter registry can help a society understand its own political behaviors, track these trends over time and space, and plan for the future.

It is thus not hard to see why the voter register was at the heart of the Kenyan Supreme Court case. Indeed, simple mathematics can help us to determine the validity of the claims the Independent Electoral and Boundaries Commission (IEBC) made with regard to the voter register.

First, the IEBC’s provisional register, which was compiled after the close of the voter registration process on December 18, 2010, contained 14,337,399 voters.

In court last week, the Commission claimed that there is also a special register, made up of 36,236 Kenyans who were eligible to vote but whose biometrics could not be captured because of physical disabilities.

In addition, the IEBC explained that there were 12 trainees, who also were not initially registered. Together, the provisional register, the special register and the 12 trainees total 14,373,647 voters.

After the closure of the register on December 18, 2012, there was no legal way to add any more voters. Only a subtraction could have been countenanced to address instances of double registration or the identification of other ineligible Kenyans. Indeed, the IEBC claimed that it had deleted some 20,000 names from the provisional register, because those constituted cases of people who had registered more than once.

So, the provisional register less the 20,000 should equal 14,317,399. On top of this, the IEBC said that it had to add the special register and the 12 trainees, which should come to a total of 14,353,647.

Why, then, is the total number of registered voters as announced on March 9, 2013 by the IEBC actually 14,352,536? Actually, the figure announced by IEBC on March 9, 2013 and the 12 trainees together is equal to the principal register.

The “special” register does not seem to fit in at all. This final number, announced on March 9, is still 1,111 voters less than what the total should be, according to the IEBC’s own explanation.

What is more important, however, is that this explanation still does not clarify why ALL these voters were not gazetted in the principal register in February.

If it is true that the IEBC wrote down the names of everyone who registered in the “green book,” including those with and without biometrics, shouldn’t ALL the names have been included in the legally gazetted register?

Also, even if the IEBC can explain the 1,111 unaccounted for voters, what explains the fact that at the level of the polling station, the sum of the principal and special registers do not equal the green book number?

Out of the 22 contested stations, there was only one station in which the numbers added up. Second, what explains the political parties register, which was issued shortly before the election?

That list included 14,336,842 voters, which is completely out of the range of the other numbers. Why would the register become a moving target? Third, and perhaps more worrying than the plethora of registers, is the fact that even though additions and subtractions have impacted all areas in the country, there does appear to be a pattern with respect to some of the most striking changes.

Additions and subtractions were made to the register all over the country. Aggregating these changes by province shows that 68,836 voters were added to constituencies in Central Province and Rift Valley, while 14,122 subtractions were made in Nyanza and Coast provinces.

This pattern undermines the argument that the irregularities were clerical, random and scattered across the country. During the hearing of the petition challenging the validity of the election, one lawyer attempted to explain this by claiming that voter registration, as laid out in the Constitution, is a “continuous process.”

What he omitted from his explanation, however, is the fact that the Elections Act states that voter registration ceases for the 60-day decision 2013: Aggregating these changes by province shows that 68,836 voters were added to constitu- encies in Central Province and Rift Valley, while 14,122 subtractions were made in Nyanza and Coast provinces.

This pattern undermines the argument that the irregularities were clerical, random and scattered across the country. period before the election. Fourth, it is interesting to note that if the original numbers in the December register had been used, certain constituencies would have experienced a voter turnout in excess of 100 per cent.

For example, the voter turnout would have exceeded the registered voters in Pokot South (109%), Loima (106%), Samburu North (105%), Kajiado South (103%), and Sigor (102%). The revised numbers as per the February register make the turnout figures a bit more reasonable, with Pokot South at 93 per cent, Loima 80 per cent, Samburu North 88 per cent, Kajiado South 91 per cent and Sigor, 92 per cent.

They are still incredibly high when placed in the context of the history of turnout in these areas. All of this comes into much sharper focus when we look closely at certain key areas.

Take Turkana Central, where turnout was about 53 percent in 2002. In this election, the IEBC reported turnout in the constituency to have reached 74 percent, a jump of 21 percentage points.

Notably, this constituency also experienced 8,516 additions in voters between December and February, the most of any constituency in the country. When comparing Forms 34 from the following three polling stations in Turkana Central to the number of registered voters published in the principal register in February, there are some significant discrepancies.

In each of the following polling stations, the number of registered voters recorded on Form 34 is more than what the IEBC published. If the number published by the IEBC had been used, these polling stations would have shown voter turnout in excess of 100 percent.

This pattern can be seen in other areas as well. In a polling station in Tharaka, for instance, the original number of registered voters had been written over with another number on the Form 34.

The new number is larger, such that voter turnout does not exceed 100 percent. A look at the comments from the presiding officer on the form, however, is telling.

The presiding officer wrote, “The number of voters was higher than the registered voters. This was authorised by the RO* as he argued that they were registered at Constituency level” (*RO is Returning Officer).

A close look at the form shows a three-digit number beginning with 12. The last digit is not clear, but whatever it actually was, it clearly had to have been less than 166, the number written over the original figure.

This clearly leaves many questions unanswered. It’s now a waiting game, as the public anticipates the Supreme Court’s detailed judgment. We will have to see how the Court managed to resolve the existence of no less than six different registers and constantly changing voter totals – and then decide if we can also resolve it ourselves.

Dr Seema Shah was part o
f the Africa Centre for Open Governance observation team during the hearing of the presidential election petition.

Africog launches website on electoral malpractices – Daily Nation, April 12, 2013

A website with evidence detailing electoral malpractices of the March 4 General Election which the Supreme Court ruled against during the petitions has been launched.

Ms Gladwell Otieno and Zahid Rajad from Africa Centre for Open Governance (Africog) have partnered with Inform Action Director Mr Maina Kiai to launch the ‘People’s Court’ (www.thepeoplescourt.co.ke) where evidence on electoral malpractices will be uploaded.

The public would also have a forum to post their experiences during the elections.

The public would also be allowed to criticise and recommend new ways of conducting a free and fair election which the Independent Electoral and Boundaries Commission (IEBC) can adopt.

“This is not about individuals but the elections process. The website will open a public debate with the aim of strengthening our democracy,” said Africog’s Executive Director, Ms Otieno.

The website has been launched ahead of a detailed finding to be released by the Supreme Court on its ruling during that upheld the election of Uhuru Kenyatta as Kenya’s fourth president.

The Supreme Court ruled that the election was free, fair and transparent.

The court dismissed petitions by Africog and Cord’s presidential candidate Raila Odinga challenging the validity of the elections and the victory of Uhuru Kenyatta.

Africog said it would upload a 900 page document detailing evidence on alleged electoral malpractices it managed to gather in its monitoring of the electoral process for the people to decide.

“Supreme Courts could be wrong and they have been wrong in the other jurisdictions such as in the US. That is why we want an open debate on this issue to allow the public to decide for themselves what took place,” said Mr Kiai.

Ms Otieno said the intention of kick-starting the debate was not to change the decision by the Supreme Court but to initiate debate among Kenyans about their institutions

AFRICOG unveils people’s court website – The Star, April 12, 2013

The Africa Centre for Open Governance (AFRICOG) has launched a website that will host contributions from members of the public on election irregularities following the March 4 election.

AFRICOG who were petitioners in the Supreme Court process that challenged the announcement of President Uhuru Kenyatta as the winner of the March 4 poll, have said that the website dubbed The People’s Court, will serve as a hub for evidence of electoral offences.

AFRICOG has added that it will be calling on the Director of Public Prosecutions Keriako Tobiko to investigate these offences.

The site www.thepeoplescourt.co.ke will also have the evidence presented by the civil society group to the Supreme Court during the hearings on the election petitions.

The group has encouraged members of the public to send in their experiences during the election as well as evidence on any evidence on any electoral irregularities to the numbers 30313 or 20133 or email evidence@thepeoplescourt.co.ke

Link to the story

Africog launches website on electoral malpractices – Daily Nation, April 12, 2013

A website with evidence detailing electoral malpractices of the March 4 General Election which the Supreme Court ruled against during the petitions has been launched.

Ms Gladwell Otieno and Zahid Rajad from Africa Centre for Open Governance (Africog) have partnered with Inform Action Director Mr Maina Kiai to launch the ‘People’s Court’ (www.thepeoplescourt.co.ke) where evidence on electoral malpractices will be uploaded.

The public would also have a forum to post their experiences during the elections.

The public would also be allowed to criticise and recommend new ways of conducting a free and fair election which the Independent Electoral and Boundaries Commission (IEBC) can adopt.

“This is not about individuals but the elections process. The website will open a public debate with the aim of strengthening our democracy,” said Africog’s Executive Director, Ms Otieno.

The website has been launched ahead of a detailed finding to be released by the Supreme Court on its ruling during that upheld the election of Uhuru Kenyatta as Kenya’s fourth president.

The Supreme Court ruled that the election was free, fair and transparent.

The court dismissed petitions by Africog and Cord’s presidential candidate Raila Odinga challenging the validity of the elections and the victory of Uhuru Kenyatta.

Africog said it would upload a 900 page document detailing evidence on alleged electoral malpractices it managed to gather in its monitoring of the electoral process for the people to decide.

“Supreme Courts could be wrong and they have been wrong in the other jurisdictions such as in the US. That is why we want an open debate on this issue to allow the public to decide for themselves what took place,” said Mr Kiai.

Ms Otieno said the intention of kick-starting the debate was not to change the decision by the Supreme Court but to initiate debate among Kenyans about their institutions

Kethi Kilonzo Gets Candid On All Matters Law

Interview

An advocate of the High Court, Kethi won the hearts of many Kenyans on social media and was the talk of town during the presidential election petition hearing by the Supreme Court. Last week she appeared on the acclaimed KissTV primetime news JSO @ 7 hosted by anchor John Sibi Okumu. Here is the transcribed interview by reporter Sharon Macharia

You represented the African Center For Open Governance (Africog) one of the petitioners against the results of the recently ended elections. Did you know from the outset that legally you were bound to lose?

Certainly not. The evidence that the Africog had and presented before the courts met the legal yardsticks for the nullification of the presidential elections. The constitution requires three things for somebody to be declared president-elect. One you have to be the popular candidate and get the majority of votes, two you have to get 25 per cent of votes in at least 24 counties and three you need to get 50 per cent plus one of all the votes cast.

Our contention was that the presidential declaration of the results did not meet these yardsticks but more importantly than the numbers is what the constitution requires that we should have a free fair and transparent election, and the measure of free, fair and transparent elections is not the number of votes the candidates gets.

The constitution and the law are very clear, that whatever voting method the IEBC choose it had to meet the yardsticks of simplicity, it had to be accurate, verifiable, transparent and accountable. It required the IEBC to announce the results promptly and in a transparent manner. The evidence we had showed that this presidential election did not meet the standards.

We don’t have the time to review the trial in 20 minutes but what I am saying from the layman’s perception, you anticipated the ruling?

Not at all. It’s fair for the judges of the Supreme Court to state that they have not given their reasons for their decisions. It is also fair for Africog to tell the public why they went to court and I will start with the register. According to IEBC on February 18, 2013 they announced that Kenya had 12,352,053 voters let’s say 12,400,000 voters. If you look at the returns for the 291 constituencies according to all the returning officers there were 13 million voters.

There is a difference of 1 million voters from the register and the people who were allowed to vote, not only that…

So the discrepancy in numbers?

A million…

A million…

Not only that. When the Supreme Court ordered for scrutiny of 22 polling stations in the petition filed on behalf of the immediate former Prime Minister, the IEBC came to court with green books. Do you know what that is?

No not entirely.

How many Kenyans do you think know about the green book?

None I presume, taking myself to be one of them.

The fundamental rule of an election says one man one vote, isn’t it?

Yes.

If somebody walks into the polling station and they are not registered to vote and you are, you know by casting the ballot they completely render your vote…

Invalid?

Not invalid, unnecessary, nothing, you have done nothing. If one person votes in Langata and they are registered to vote and 1000 people are allowed to vote in Wajir and they are not registered that is a nullity.

This case has done something for your career, given you got a great deal of publicity. Otherwise we wouldn’t be having this conversation. But do you feel that at the end of the day it was not a worthwhile exercise?

Oh no it was. Let me take you back to the evidence before the court. There is a school in Kieni Constituency in Nyeri county called Charity primary school. According to the IEBC register it had one voter. However in what they call a special register 321 people voted at the school and you can’t account for them from the register or from the special register…

Let’s talk about the 900-page affidavit. Couldn’t the evidence have been condensed into three standout proclamations that we would have all accepted as well the Supreme Court judges?

The 900-page affidavit was filed in the other petition and I will not speak as to the content of that affidavit but that brings into question the reason why we brought in a new constitution as Kenyans. Why did we go for the referendum? One of the key articles in the constitution is when administering justice you must pay regard to substance not technicalities.

The question is, in making that decision about that affidavit were they guided by the substance or technicalities? And you must give it to them John. They had 14 days only, they had mountains and mountains of evidence.

But at the same time with respect, they were congratulated specifically for having done a tremendous job in record time, as if of its very nature this idea of doing it quickly deserved some kind of commendation. As we go forward can we not have alternative time lines that are more realistic? Why come up with a judgment in two days? Were the constitution fathers and mothers wrong?

Not at all, in fact I think the time lines are perfect John. For the simple reason the Constitution has found a transitional method of one government to the other. As we speak we have a president and a president-elect.

The Constitution states that until a candidate who has gone to the Supreme Court has successfully challenged the election or not the president-elect can’t be sworn in. It is important, very important, that this process is completed quickly because can you imagine if the Supreme Court was still sitting and the president is sworn in.

I would argue that you are arguing my corner more successfully than I am. I said from the word go everything had to happen quickly. If you did not meet that yard stick you knew that the ruling would go against you.

One of the affidavits we produced in court had an audio visual recording showing that the results announced at the county level were not the results announced at the Bomas of Kenya. It showed that there was a difference of 1000 votes for one candidate and less four or 500 for another candidate.

The question is this, if you have a result that is announced at one level and it is different when announced at the national level do you take in to account the difference? Or do you ask yourself at what point were these results changed? And is it the only result that was changed? No, we had more evidence of the same. John there is evidence out there and we are all waiting to see what the court decided on this evidence. For me I think the biggest disservice to everyone involved is the fact that we are going to have a president-elect sworn in without a pronunciation on why the election was valid.

You could argue that in giving a five- minute judgment the Chief Justice was actually doing us a favour. We are not going the way of the American Supreme Court where you listen to hours and hours of legalese and then at the end of the day the case is dismissed. We are moving the process forward, we will tell you why we dismissed the case but since you want to know who came on top of the class, who won the prize this is it. All these petitions are dismissed and we moved forward.

This brings us to 2007 when the biggest issue was who finished first. That is what the 2010 Constitution wanted to cure; that it’s not the end that justifies the means, the means is more important than the end. When we look at the question of technicality, procedure versus substance we have a ruling. But does the ordinary Kenyan in Nyeri, Mombasa, or Nairobi know why the petition was not successful?

As we wait patiently for this ruling in its entirety. As a repre
sentative of civil society, it seems the civil society therefore has lost in absolute terms, how do you think it might redeem itself in the coming five years or is this the end of the road?

No, this is the beginning of the road because, the civil society has no political interest, they have no political state, the reason why Africog filled this petition was not to support or to oppose one candidate it was to help in the implementation of the constitution. The questions about IEBC, there is a question about the whole procedure because everyone wants to look at these reasons and scrutinies.

Our institutions John will not grow if we do not have the courage to question what they do because that is the reason why we pay so much taxes so that they deliver. The budging now moves to ICC why did the systems fail? And how do we fix it?

The supreme court when they give their reasons, are these reasons valid? But its important as we speak we have a ruling, that petition has come to completion the candidate who was second has accepted that petition but it cant stop there John. I am sorry it can’t.

What are your thoughts on the new judiciary?

The judiciary has changed, its not the same judiciary that we had John. Things have improved and will continue to improve. It’s important that we go back to the constitution and that courts deliver justice not procedure. It is very important people are able to understand what is going on in court.

The people feel welcome and they don’t feel as if you have to be an advocate to represent your case. You will be surprised that I have seen lay persons who do a better job than advocates in court in representing their own cases. I think we conducted ourselves well John.

In you Kethi Kilonzo as a woman the focus has been more on your private life, your marital status, your mode of dress. Maybe the word feminism is a proffered in this case. Do you think that this is the reflection of a mature society to bring you down? How do you respond to that?

It’s unfortunate that society will take such an approach. It’ even more unfortunate that even we women ourselves tend to look down at ourselves first. Like how does her hair look? What shoes is she wearing? but the approach I take is this, when I wakeup in the morning I don’t wake up as a young woman I don’t wake up as a young person,

I don’t wake up as a pretty person. I wake up as Kethi Kilonzo and go and work as Kethi Kilonzo. The way I look at it is God has given everyone a special talent, whether you are a man or a woman, and its your work to develop that potential so for me it doesn’t matter. When I walk in somewhere it’s Kethi Kilonzo walking in and I try to carry myself professionally and to do my work as Kethi Kilonzo to my full potential.

You emerged from this whole process as something of a role model going beyond your presentation and your physical appearance you have become a role model for young girls. Is this a role that you will readily assume because it is not going to go away in the fullness of time, the spotlight is going to be for ever upon you. What are the lessons that you might give to young girls watching now wanting to become Kethi Kilonzo.

Well I would encourage them not to become Kethi Kilonzo. I would encourage them to try and reach their maximum potential and find out what their gifts are? What their talents are? And develop that. More importantly they have work hard, very hard and work smart.

Have you had to fight obstacles in this day and age as a very final comment for being what you have chosen to be. Is there a great dismissal within the bar at the bench where you operate against women?

It is difficult John simply because the kind of profession we are in takes a lot of time and that is not conducive to somebody who needs to bring up a family so you make a choice whether to go for your career in full whether to go for your family in full or try and strike a balance.

When I walk home, or drive home at 4-6pm my male colleagues will drive straight to a bar or a club to socialise or interact. That is where business is discussed and made so there is a distinct disadvantage but that is neither here nor there. We just work as hard during the day as they are nursing their hangovers in the morning and try and catch up.

Crucial timelines from day of polls to Supreme Court ruling – The Standard , March 31, 2013

Nairobi,KENYA: The possibility of the presidential election results being contested in the Supreme Court was first reflected on March 7, when CORD presidential running mate Kalonzo Musyoka alleged the results were being doctored.

Kalonzo also called for calm and stressed that his remarks about the March 4 poll were not a call to mass action and that the party was committed to the rule of law.

“We have a number of concerns and we have evidence of results being doctored,” said the VP.

On the same day, the Independent Electoral and Boundary Commission (IEBC) through chairman Issack Hassan denied the claims.

The rigging claims were followed by dismissal of an attempt to stop IEBC’s manual tallying of results at Bomas by the High Court, which ruled it had no jurisdiction to hear any petition touching on presidential election.

Justices Isaac Lenaola, Weldon Korir and David Majanja dismissed an application by the African Centre for Open Governance (Africog), saying although the group had raised serious issues, it cannot take away the jurisdiction of the Supreme Court.

Below are the timelines on how things shaped up from March 4.

March 4

Kenyans go out to vote in the General Election.

March 6

IEBC resorts to manual tallying, calls the 290 returning officers to Nairobi.

March 7

CORD presidential running mate Kalonzo Musyoka alleges that vote results had been doctored. Kalonzo also called for calm.

March 8

African Centre for Open Governance (Africog)’s bid to stop tallying of the presidential ballot at Bomas is dismissed by the High Court.

March 9

IEBC declares Uhuru Kenyatta as President-elect and William Ruto as Deputy President-elect.

Uhuru delivers a victory speech at the Catholic University of Eastern Africa.

On the same day, Raila Odinga responds to IEBC declaration.

March 12

CORD files a petition seeking orders to compel the electoral commission and mobile operator Safaricom to release crucial documents required to file a presidential petition.

Head of the Raila Odinga Secretariat Eliud Owalo filed the petition at the Milimani Law Courts.

March 16

CORD petition filed by lead counsel George Oraro on behalf of Prime Minister Raila Odinga.

On the same day, Raila addresses the nation before filing petition.

March 19

High Court orders the IEBC and Safaricom to release election data to CORD.

Offering new figures to back up his claim, CORD leader Raila Odinga says the final tally was manipulated after he garnered 5.7 million votes against Uhuru’s 4.5 million.

Uhuru tells Raila to stop politicising the petition and wait for the verdict of the Supreme Court.

March 20

Uhuru and Ruto file responses to CORD petition.

Uhuru says IEBC conducted a free and fair poll.

On the same date, Chief Justice Willy Mutunga direct parties not to comment on the case outside court.

March 22

IEBC tells the Supreme Court to throw out the petition filed by Prime Minister Raila Odinga challenging the election of Uhuru Kenyatta as president.

March 23

Raila files response to the replying affidavits by the respondents.

March 25

Pre-Trial hearing starts at the Supreme Court

Court approves application by the Attorney General Githu Muigai to act as ‘a friend of the court’. It however turns down a similar request by the Law Society of Kenya (LSK). Court consolidates the three petitions and allows the petition filed by CORD’s Raila Odinga to be heard first.

Supreme Court orders scrutiny of Forms 34 from all 33, 400 polling stations and all forms 36 used in tallying of presidential votes. The court also orders the re-tallying of presidential votes in 22 polling centres.

March 26

Pre-trial conference enters second and final day

Court rejects application by Odinga for a forensic audit of the Independent Electoral and Boundaries Commission (IEBC) electronic tallying system.

Court also expunges a 900-page affidavit filed by Odinga because it was presented too late to allow respondents-IEBC, president-elect Uhuru Kenyatta and Deputy president-elect William Ruto, enough time to peruse it.

Re-tallying of votes as ordered by the Supreme Court begins at the Kenyatta International Conference Centre.

March 27

Hearing of the presidential election petition begins.

Key issues to be determined by the court include whether president –elect Uhuru Kenyatta and his deputy-elect William Ruto were validly elected, and whether the presidential poll on March 4 was conducted in a free, fair, transparent and credible manner.

The court would also determine whether rejected votes ought to have been included in the determination of the final tallies of votes in favour of the presidential candidates.

Court rejects application by the African Centre for Open Governance (Africog), represented by lawyer Kethi Kilonzo, to compel IEBC to produce the manual register used during the March 4 elections, on grounds that it was filed late.

Raila’s lawyer George Oraro begins oral submissions to the court.

March 28

Oraro concludes submissions to the court.

Lawyers Fred Ngatia, Katwa Kigen and Mohammed Nyaoga, representing President –elect Uhuru Kenyatta, deputy president-elect William Ruto and IEBC, respectively, respond to the petitioners.

Attorney General Githu Muigai makes submissions to the court.

Parties conclude oral submissions to the court.

Re-count of votes in 22 polling stations completed.

A review of forms 34 and 36 as directed by the court is also finalized.

March 29

Court hears arguments from parties on results of the re-tallying of votes in 22 polling stations as ordered during the pre-trial hearing. Court adjourns

March 30

The Supreme Court delivers the much-awaited presidential petition verdict.

Link to the story

Wanjiku is dead but who will mourn her when everyone wants to move on? – Daily Nation, March 31, 2013

Wanjiku died last week. There was no state funeral, no wreaths, no eulogies.

She was buried in a quiet ceremony in her small plot of land.

They say she died of a broken heart. A note was found next to her body. It read: “I am tired.”

When the villagers learnt of her passing, they shrugged and said: “That is life. We need to move on. We can’t mourn that which was never ours.”

You see, Wanjiku didn’t play by the rules of the village. As a young girl she had been branded a witch by the village chief. For several years, she was shunned and ridiculed as a stupid woman with strange ideas in her head.

One time she was stripped naked and made to walk to the chief’s house where she had to kneel down and apologise. She was whipped 10 times. The scars from her wounds, like her humiliation, never quite healed.

Wanjiku’s crime was that she dared to ask the chief why he ate plump chickens every day while the villagers starved.

She rocked the boat too much. Like the time when she dared to speak on behalf of the villagers when the government official came on what they said was “a fact-finding mission”.

The chief was not amused. He told her that as a woman she should know her place. She should learn to shut up. Without peace there can be no development. She was disturbing the peace.

The rains failed the following year. Many villagers died of starvation. Wanjiku orchestrated a revolt against the chief. Villagers burned down his house, and stole all his chickens. They demanded change.

A new chief was installed. He promised to end corruption. Women, the vulnerable and the sick rejoiced. Wanjiku was appointed deputy chief.

She created a people’s court where everyone could speak and air their grievances.

People from neighbouring villages and around the world marvelled at the new democratic structures in Wanjiku’s village. Her village came to be known as the “Wanjiku Model”, and even won a United Nations award.

But as the years passed, Wanjiku realised that the new chief had no intention of bringing about real change in the village.

He had filled his Cabinet with cronies of the old chief.

The villagers were still poor. Chinese contractors had built a road leading to the major town, and there was a new borehole in the school compound. But Wanjiku was not satisfied.

Too many people in the village were still starving, even when there was a bumper harvest. She knew the chief’s cronies were siphoning off bags of maize from the village granary and selling them to neighbouring villages.

She wanted the chief’s cronies removed. The chief would hear none of it. He banished her from his court.

The villagers were divided. Some felt that Wanjuku was being too hasty, too impatient, too ambitious. They claimed she was working on behalf of foreigners to destroy the village.

Rumours began circulating that her goal was to wrest power from the chief. Imagine that. A chief who is a woman? How can that be? They said a curse would befall the village if she became chief. They began plotting her assassination.

Meanwhile, Wanjiku’s growing group of supporters planned a counter-attack. They formed a “chama” and appointed her as their leader.

They argued that no chief in the village could be appointed without the backing of at least half of all the adult villagers. Vote counters were appointed and an election by secret ballot was held. Villagers stood for hours to cast their vote.

Wanjiku lost by a one per cent margin. She demanded a re-count. They told her not to be silly, to think about the interests of the village, to stop disturbing the peace.

Who cares who is chief anyway? they argued. We are a model village, remember? We now have institutions in place that will check the excesses of the chief. There will be no re-count. The village and the villagers need to move on.

That is life.

That night Wanjiku lay in bed, caressing the scars that had formed when she had used thorns to hold her flesh together.

Then her 50-year-old heart stopped. Just like that.

Link to the story

This is why Africog went to court – The Standard, March 30, 2013

NAIROBI, KENYA: Africa Centre for Open Governance ( Africog) filed a petition to challenge the presidential elections results and wanted the Supreme Court to invalidate the results as electoral malpractices had been committed.

The organisation stated the presidential results that were announced at various counties were different from those declared by the Independent Electoral and Boundaries Commission (IEBC) at the national tallying centre.

Through Kethi Kilonzo, Africog narrowed down to Nyeri and Bomet County tallying centres to prove that the results of the presidential elections were indeed altered.

Kethi played video clips of the announcements of the presidential results in the two counties, which she said was different from those finally announced by the Issack Hassan-led commission and reflected in Form 36.

She said for example that after the vote count, President-elect Uhuru Kenyatta garnered 317,881 votes from Nyeri County, which was announced by the county returning officer.

However at the Bomas of Kenya, the IEBC gave Uhuru 318,880 votes, which is an increment of 999 votes.

However, CORD presidential candidate Raila Odinga who scored 6,075 votes as announced at the county level had his votes reduced to 5,638 according to results announced by the IEBC.

According to Kethi, Raila was not the only one, James ole Kiyiapi , Martha Karua and Musalia Mudavadi lost votes and the only candidate who then benefited from the difference were the President-elect and Peter Kenneth.

Kilonzo also said in Othaya constituency, Uhuru garnered 42,431 votes, which were inflated at the Bomas of Kenya to 42,957.

She also poked holes in the IEBC register of voters insisting that it was inaccurate and not a reflection of the principal register published before the election.

According to her, Form 36 obtained from the electoral commission showed that the number of registered voters stood at 13,557,365.

She, however, maintained that the principal register published by the IEBC on February 18 had 14,352,533 registered voters.

Link to the story

Kenyans await Supreme Court ruling – The Standard, March 30, 2013

NAIROBI; KENYA: History is in the making on Saturday as Kenya’s most powerful Bench prepares to rule on three petitions over the March 4 presidential election.

The six judges will decide whether to uphold or invalidate the outcome of the election, sending President-elect Uhuru Kenyatta to State House or back to the ballot box.

Millions of Kenyans, Africans and others in the international community, will today be watching the Supreme Court as it makes this landmark decision. This is the first presidential petition in Kenya’s history to be heard and determined on issues and evidence. Previous ones were dismissed on technicalities.

The six Supreme Court judges on Friday heard final remarks from petitioners and respondents on a partial re-tallying carried out this week. The check found ten of 18,000 Forms 34 requested were missing. There were also errors in tallies on some Forms 34 (presidential election totals from polling streams) and aggregates on Forms 36 (from all polling centres). These issues roused heated debate on whether they prove the election was flawed.

The ruling will be the culmination of a tight week of sittings to hear arguments on the issues in the petitions, two of which seek nullification of the outcome.

CORD candidate Raila Odinga filed the main petition arguing Uhuru, the Jubilee Alliance candidate, was declared winner in an election marred by fraud. The Prime Minister is challenging virtually everything from the purchase of electronic equipment, to registration of voters, actual voting, transmission of results, and tallying at the National Tallying Centre, at Bomas of Kenya.

He wants the entire process invalidated and fresh elections held. He also wants Independent Electoral and Boundaries Commission (IEBC) commissioners held legally accountable for electoral offences.

A second petition by civil society activists linked to Africog also seeks to have the election invalidated over irregularities. A third, by a Jubilee activist and two others, seeks an opinion on whether rejected votes should count in the election.

The IEBC, its chairman Issack Hassan, Uhuru and Deputy President-elect William Ruto have dismissed the petitions as “self-seeking” and urged the court to ignore “clerical errors” and uphold the outcome of the elections.

Phones on

Even as the Six Supreme Court judges closed the proceedings on Friday, they could not estimate when they would deliver the judgement.

“Keep your phones on because you don’t know when we will summon you,” Court president and Chief Justice Willy Mutunga told lawyers for all parties. The court had just five days to hear and determine the consolidated petitions after holding a pre-trial conference on Monday. Due to time constraints, the judges are expected to deliver a brief judgement going straight to their declarations and then issue detailed reasons later as allowed by the law.

On Tuesday, the judges pronounced the only four issues they would be determining today and asked the lawyers to use all means to support or defend their cases on these matters.

One issue is whether Uhuru and Ruto were validly elected and constitutionally declared winners by IEBC. The other issue is whether the presidential election was free, fair and transparent, and whether it was in compliance with the Constitution and all other relevant laws.

The third issue is whether rejected votes should be included in determining the final tally of votes in favour of each candidate and the fourth is which of the orders sought the court can issue.

The judges also set aside 15 hours spread in two days within which to hear all the oral submissions. Lawyers had to keep strictly to allocated timelines watched from two digital clocks in the courtroom. The lawyers opted not to call any of the witnesses who had filed dozens of affidavits either in support of in rebuttal of the petitions.

The court also imitated its own scrutiny of all the Forms 34 and 36 used in the presidential elections and re-tallying of results on 22 out of 33,400 polling stations. Reports of the exercise were submitted in court on Friday.

Petitioners argued that the reports had satisfied their claims that the elections were not free and fair. But the respondents said discrepancies disclosed had been explained in their submissions or were “clerical error”.

The main contention revolves around the voter register, which some petitioners say was inflated by the IEBC in favour of the President-elect.

They claim that more people were registered after the closure of the registration deadline on December 18, last year. The commission, however, argues that it prepared a special register for those whose biometric data could not be captured by the BVR kits for various reasons. This register had over 36,000 persons whose constitutional right to vote could not be breached.

Lawyers were in agreement that if the voter register were defective, the declaration would affect all other elections of county representative, women representative, members of the Senate, National Assembly and the governors.

Constitutional crisis

Lawyers for respondents claimed the orders sought would throw the country into a constitutional crisis. This is because the register was used to conduct elections for all the other candidates for other positions.

On Friday Mutunga said the judges were happy with what had come from the lawyers.

“I can say our Bar is one of the best,” he remarked at the close of the proceedings. “You have really helped us a lot.”

Link to the story

Petition hearings showcased traits of a good lawyer – Daily Nation, March 29, 2013

If you’re shopping for a good lawyer, look no further. The just-ended Supreme Court presidential election petitions hearing showcased some of the country’s star lawyers.

The hearing was a spectacle of lawyerly, and not so lawyerly, skills and characteristics.

It was a live show and a parade of adversarial talents that you’re unlikely to see anywhere else, in one short week and on national television.
But just what constitutes a good lawyer?

The quality that seemed to matter most is good communication skills. Those are the skills that won the day, charmed the judges and won the attention of the media.

Closely allied to those skills are courtroom presence and confidence. The courtroom is a kind of theatre. The lawyer needs to think on his feet and assert his dominance without looking arrogant.

The third quality that a lawyer needed to wow the judges is knowledge of the law, the rules of the game and the facts of the case.

A lawyer must have the ability to see through the issues and argue logically. He must keep track of all the arguments of the opposing side and demolish them while looking calm and relaxed.

The fourth most important quality is good judgment. This is the ability to assess a situation and say things that would ensure the best possible outcome for your client. This goes beyond a mere knowledge of the law.

There were many other qualities that were displayed inside and outside the courtroom, such as interpersonal skills, negotiating skills, fearlessness and good writing skills.

There were also many other qualities that were not on display, such as organisational and technological skills.

The choice of a lawyer, ultimately, depends on the job you want done. In the Supreme Court hearing it was not always easy to say conclusively from one exchange who the right lawyer for the job was. Sample this:

Donald Deya, counsel for Africog, began by saying it was his first time to address the court and “please allow me to say good afternoon” and “what a pleasure it is and a thrill as a Kenyan lawyer”. Then he offended a senior counsel by saying, apparently reading: “In contradiction to provisions of article 81, and this will come out as the case goes on, the process has been opaque, it’s been clumsy, it’s been inefficient, it’s been inaccurate, it has been unaccountable to such a level any results coming out of it is actually incredible.”

Aurelio Rebello, counsel for IEBC: “So this young man should not look up Roget’s Thesaurus, find a word like opaque and find every other word that means the same just to show off to this court that he knows a little English.”

Justice Ojwang’: “Mr Rebello, there is the question of decorum in the court.”

Mr Rebello: “I appreciate.”

Justice Ojwang’: “If you are unhappy or very angry don’t pour it out here in court. You must respect the counsel.”

Mr Rebello: “I apologise. But comments like that are deliberately intended to insult and I’m sorry if at this late hour I lose my sense of decorum.”

Which of the two lawyers would you choose?

Link to the story

The parties have spoken and it’s now the turn of the court to speak – Daily Nation, March 29, 2013

An important week in Kenya’s political history comes to an end Saturday with the expected judgment by the Supreme Court in petitions filed by Cord Coalition leader and Prime Minister, Raila Odinga, and the civil society-fronted Africa Centre for Open Governance, challenging the results in the March 4 elections in which Uhuru Kenyatta was declared the winner.

The Supreme Court, exercising special powers conferred by the Constitution, will decide whether Kenyatta was validly declared the winner of the elections.

As it would be risky to predict the nature of the judgment that the Supreme Court will give, it is only possible to address some of the issues that came up in court during the hearing of the petition.

Early in the week the court surprised everybody when it issued an order for the scrutiny of all copies of Form 34 and Form 36 used in the elections and also the results for 22 constituencies which, according to the petition by Mr Odinga, recorded a voter turnout in excess of 100 per cent.

The order by the court was issued without application by any of the parties and constitutes a proactive approach by the court towards resolving the issues raised in the petition.

The results of the re-tallying will contribute significantly to the assessment by the court as to the results of the petition.
A central issue in these petitions has been what constituted the register of voters for the 2013 elections.

According to Mr. Odinga, the register was closed on February 18 and only the people reflected as registered on that date were legally capable of participating in the election.

The IEBC has argued that although it represented a figure of registered voters on that day, this was not conclusive and did not include voters with special needs, such as persons with disabilities whose biometric features could not be captured during the main registration.

Lawyers for the petitioners have made much of the fact that the IEBC did not disclose the existence of this special category of voters.

There was also controversy as to the number of such people. The decision of the court will certainly hinge on what, in its view, is the correct register.

Against opposition by the petitioners, as to his participation, Attorney-General Githu Muigai argued his way into the proceedings, indicating that as Attorney-General, he could assist the court in dealing with the various complex legal issues that it had to decide on.

His most telling contribution, however, was a submission that the country cannot afford another election because of the significant disruptions it would bring to the country.

It appears that the Attorney-General used his position as a friend of the court to indicate the preference of the establishment that it is time to move on.

The court had to decide on the participation in the petitions by various interest groups that claimed that they could also assist it in arriving at a fair determination of the issues.

The Law Society of Kenya was turned down because one of its officials had sworn an affidavit in support of Mr Odinga’s petition.

Katiba Institute, an organisation founded by Professor Yash Ghai, was also turned down because it had associated itself with a civil society report that spelt out the implications for the country if Mr Kenyatta was elected president while facing charges before the ICC.

It can be concluded that the general rule arising from this decision is that the special relationship of amicus curiae (friend of the court) will not easily be given to advocacy groups since, by the nature of their work, these are in the business of taking positions on a wide range of governance issues.

If this is the case, the new found space under the new Constitution through which advocacy groups use litigation to support governance objectives will be curtailed. It is to be hoped that the Supreme Court, as the highest court of the land, will review its position on this.

The parties have spoken and it is now the turn of the court to speak. As widely predicted, the decision of the court will carry great significance for the future of the country, and the court itself.

The writer is the executive director of ICJ-Kenya. gkegoro@icj-kenya.org

Africog: Tallying centres, Bomas results differed – The Standard, March 28, 2013

Kenya: The Supreme Court has been told of how results from certain constituencies differed from those announced at the main tallying centre at Bomas of Kenya.

Africa Centre for Open Governance (Africog), who are parties to the case that is challenging the presidential elections results, urged the court to invalidate the results as electoral malpractices had been committed.

The organisation maintained that the presidential results that were announced at various counties were different from those declared by the Independent Electoral and Boundaries Commission (IEBC) at the national tallying centre.

In an eloquent presentation made by lawyer Kethi Kilonzo, Africog narrowed down to Nyeri and Bomet County tallying centres to prove that the results of the presidential elections were indeed altered.

Kethi played video clips of the announcements of the presidential results in the two counties, which she said was different from those finally announced by the Issack Hassan-led commission and reflected in Form 36.

She said for example that after the vote count, President-elect Uhuru Kenyatta garnered 317,881 votes from Nyeri County, which was announced by the county returning officer.

However at the Bomas of Kenya, the IEBC gave Uhuru 318,880 votes, which is an increment of 999 votes.

However, CORD presidential candidate Raila Odinga who scored 6,075 votes as announced at the county level had his votes reduced to 5,638 according to results announced by the IEBC.

“He (Raila) is not the only one, (James ole) Kiyiapi lost votes, (Martha) Karua lost votes, Musalia Mudavadi lost votes. Even the little that you have would be taken away from you. The only candidate who then benefited from this difference is the President-elect and Peter Kenneth,” maintained Ms Kilonzo in her submissions yesterday.

Kilonzo also said in Othaya constituency, Uhuru garnered 42,431 votes, which were inflated at the Bomas of Kenya to 42,957.

“My lord if you have 291 Constituencies and you give a candidate only a 100 votes more, the declaration of the President-elect would not look the way it is today,” she submitted.

She also poked holes in the IEBC register of voters insisting that it was inaccurate and not a reflection of the principal register published before the election.

Rejected votes

According to her, Form 36 obtained from the electoral commission showed that the number of registered voters stood at 13,557,365.

She, however, maintained that the principal register published by the IEBC on February 18 had 14,352,533 registered voters.

“My lords if one person outside that principal register was allowed to vote, they disenfranchised the Kenyan voters who came out to register as voters,” Kilonzo said.

She also faulted the electoral commission for having different registered voters for parliamentary and presidential elections in different parts of the country.

Giving the example of Makueni County, Kilonzo pointed out that the number of registered voters for presidential election stood at 64,525 while that of voters registered to elect MPs was 64,976.

She maintained that according to the Election Act, for one to take part in presidential election, one must be registered to vote in a parliamentary election. She said according to Article 86 of the Constitution, whatever voting method is used, it must be verifiable, simple, accurate, accountable and secure as enshrined in the law.

Link to the story

Lawyers steal election petition show – The Daily Nation, March 28, 2013

The ongoing legal battle over presidential poll results has thrust into limelight lawyers who were least known to many Kenyans.

From this group, Kethi Kilonzo and Isaac Aluochier stand out.

Soft-spoken and articulate, Ms Kilonzo has captured the attention of viewers of the Supreme Court proceedings.

The daughter of former Education minister and Makueni Senator Mutula Kilonzo represents African Centre for Open Governance (Africog) in the landmark petition. The lobby and Prime Minister Raila Odinga are challenging the declaration of Mr Uhuru Kenyatta as President-elect.

Arguing her client’s case for the first time on Wednesday, Ms Kilonzo’s articulation and relaxed mien before judges of the highest court in the land and senior lawyers left many a viewer in awe.

“I dare say the only logical conclusion is to invalidate the results,” she told the judges. “What the Independent Electoral and Boundaries Commission did was a complete sham and fraud”.

That has been her style and substance — firing her evidence and concluding with a punch. Even before she had left the floor, her name had become a sensation on social media.

Ms Kilonzo has been a partner at Kilonzo & Company Advocates for 10 years. His father established the firm in 1975. Other partners are Mr Mutula Kilonzo Junior, her brother, and lawyer Johnson Shijenje. Mr Kilonzo Junior has high regard for his sister.

“My younger sister is disciplined, intelligent, hard-working, responsible, and an excellent partner at the law firm,” he told the Nation on Thursday.

And when we asked Senator Kilonzo what he thought of his daughter, he replied: “God’s gift.”

The Africog petition is Ms Kilonzo’s most significant matter, but she has also prosecuted other high profile cases.

She, for instance, represented retired President Daniel Moi when former Nyayo House detainee Otieno Mac’Onyango sued him for illegal detention. Although the court awarded Mr Mac’Onyango Sh20 million in damages, Ms Kilonzo succeeded in absolving the former Head of State of personal responsibility.

At the East African Court of Justice, she has represented victims of atrocities allegedly committed by Kenyan military in Mount Elgon. The atrocities were committed during the crackdown on Sabaot Land Defence Forces militia.

When Kenyan political parties disagreed over nominations to the East African Legislative Assembly and a suit was filed at the regional court, she was among advocates who were instructed.

Ms Kilonzo holds a Master of Laws degree from the University of Nairobi, and according to her firm’s website, she specialises in litigation, legal drafting, legal research, conveyancing and legal critiques.

On his part, Mr Aluochier, who is a voter in Migori County, caught the attention of many due to his eloquent and articulate submission before the six judges.

He was seeking to be enjoined in the case as an interested party but his bid was dismissed by judges, who argued that he did not give practical reasons.

None of the parties in the case was also ready to enjoin him.

Speaking to the Nation after his case was dismissed, Mr Aluochier said although he was not happy with the outcome, there was nothing he could do as the Supreme Court was the highest in the land.

“I am not happy because I was not allowed to participate in the proceedings,” he said. He claimed his case was dismissed without any reason.

He, however, vowed to continue seeking for justice for Kenyans. “Another opportunity will arise,” he said.

Before Thursday’s blow, Mr Aluochier has lost a bid to challenge the candidatures of the then front-runners in the top seat race.

He had argued that Mr Kenyatta, Coalition for Reforms and Democracy leader Raila Odinga, Eagle Alliance’s Peter Kenneth and Amani’s Musalia Mudavadi were not fit to vie for the presidency due to integrity issues facing them, and that the electoral body should not accept their nomination.

However, the application was dismissed with the court averring that presidential election was a process that would end after the election.

Despite the loss, he did not give up and had returned with the same application after the March 4 polls but was unable to raise Sh1.5 million required to file the petition.

Link to the story

Kenyas Wahlleitung muss über die Bücher – Neue Zurcher Zeitung , March 27, 2013

Das kenyanische Oberste Gericht hat am Montag, am ersten Tag der Anhörung von Einsprachen gegen die Ergebnisse der Präsidentenwahl vom 4. März, eine Stimmennachzählung in 22 der über 32 000 Wahllokale angeordnet. Ein so früher Entscheid war nur von wenigen erwartet worden; das Gericht hat bis Samstag Zeit, über die Gültigkeit der Wahl zu urteilen. Die Entscheidungsfreudigkeit des in einer neuen Verfassung geschaffenen Gremiums zeigt, dass die Obersten Richter ihre Verantwortung wahrnehmen und einer Reihe von Unregelmässigkeiten bei den Wahlen nachgehen wollen.
Aufgeblähtes Wählerregister

Die angeordnete Nachzählung sollte nach dem Erlass des Gerichts bis Mittwoch abgeschlossen werden. Sie könnte einen ersten Aufschluss darüber geben, ob Verdächtigungen zutreffen, nach denen die Präsidentenwahl manipuliert wurde.

Nach den offiziellen Ergebnissen der Independent Electoral and Boundaries Commission (IEBC), der Wahlleitung, hatte Uhuru Kenyatta vom Parteienbündnis Jubilee die Präsidentenwahl mit einem Stimmenanteil von 50,07 Prozent vor Raila Odinga von der Coalition for Reform and Democracy (Cord) gewonnen. Odinga kam auf 43,3 Prozent. Kenyatta übertraf das absolute Mehr, das einen entscheidenden zweiten Wahlgang hinfällig macht, nur sehr knapp um 8600 Stimmen.

Die Nachzählung betrifft Wahllokale, in denen laut den separaten Einsprachen Odingas und des Africa Centre for Open Governance (Africog), einer Speerspitze der kenyanischen Bürgerbewegung, die Zahl der abgegebenen Stimmen diejenige der registrierten Wähler übertraf. Dass die IEBC ein aufgeblähtes Wählerregister verwendet habe, ist der Hauptvorwurf der Interpellanten. Er wird durch unabhängige Beobachtungen erhärtet. So errechnete die französische Journalistin Marie Wolfrom aufgrund einer Analyse der Register in sämtlichen 290 Wahlkreisen, dass die IEBC nach der Schliessung der Wahlregister im Dezember die Wählerlisten in undurchsichtiger Weise abänderte. Dabei wurden insgesamt über 152 000 Wähler «gelöscht» und rund 165 000 addiert.

Der Vorsitzende der IEBC, Hassan, blieb bisher eine Erklärung für die Unregelmässigkeiten schuldig. Er lehnte Forderungen der Interpellanten nach einer Offenlegung des zugrunde gelegten Hauptregisters wiederholt mit der Begründung ab, es sei nach Wahllokalen aufgespalten worden und nicht rekonstruierbar.

James Gondi, einer der Autoren der Einsprache von Africog, hält die Behauptung für unglaubwürdig. Das Gesetz schreibe vor, dass die Wahlleitung ein Hauptregister erstellen und bei Bedarf offenlegen müsse, sagt der Jurist und Bürgerrechtler. Dieser Argumentation folgte am Montag auch das Oberste Gericht; es ordnete die Präsentation des Wählerregisters an.
Die Stimmung schlägt um

Die Stimmung in der kenyanischen Öffentlichkeit hat sich in den vergangenen zwei Wochen gründlich verändert. Am Wahltag vom 4. März und an den darauffolgenden Tagen, an denen zunächst die elektronische Zählung ausfiel und daraufhin die manuell addierten Ergebnisse zäh und tröpfchenweise bekanntgemacht wurden, hatte Erleichterung vorgeherrscht, dass der Urnengang friedlich verlaufen war. Das Trauma der politischen Gewalt nach den Wahlen von Ende 2007 mit 1100 Todesopfern schien überwunden. Die Medien berichteten fast nur darüber und über den baldigen Einzug Kenyattas ins State House. Aber bald häuften sich Meldungen über Unregelmässigkeiten. Sie hinterliessen den Eindruck, dass die IEBC die Wahlen entweder grobfahrlässig organisiert hat oder – schlimmer noch – dass Mitglieder der Wahlleitung einem Wahlbetrug Vorschub geleistet haben.
Biometrische Wählererfassung

Ein gewichtiger Vorwurf betrifft das Versagen der elektronischen Systeme. Nach den letzten Wahlen vor fünf Jahren hatte eine unabhängige Untersuchungskommission unter der Leitung von Johann Kriegler, einem südafrikanischen Richter und Wahlexperten, Reformen vorgeschlagen. Sie sollten sicherstellen, dass in Kenya künftig glaubwürdige Wahlen durchgeführt und Gewaltausbrüche verhindert werden. Nach den Empfehlungen des Kriegler-Berichts sollten moderne Technologien genutzt werden, mit denen Ergebnisse überprüft werden können. Die IEBC schaffte denn auch mit grossem Aufwand Systeme z. B. zur biometrischen Erkennung von Wählern und für die Übermittlung der Resultate in einem eigenen Kommunikationsnetz an.

Am Wahltag versagten die Verfahren jedoch und wurden bald eingestellt. Als erst 16 Prozent der Ergebnisse ausgezählt waren, verzichtete die IEBC schliesslich auch auf die computergestützte Addierung der Resultate und griff – laut Kritikern vorschnell – auf manuelle Verfahren zurück. Laut James Gondi öffnete es zusammen mit den aufgeblähten Wählerregistern Manipulationen wie dem «ballot stuffing» (heimliches Vollstopfen von Wahlurnen mit gefälschten Wahlzetteln) Tür und Tor. Derartiger Betrug war bei früheren Wahlen verbreitet gewesen. Überprüfbar wären die Ergebnisse noch immer, aber die IEBC weigerte sich auch, Odingas Anwälten und Africog die Formulare herauszurücken, in welche die Wahlleiter in den 32 000 Wahllokalen alle Einzelergebnisse eingetragen und eine Kopie davon im Lokal angeschlagen hatten. Nur ein anderer Typ Formular, der aggregierte Ergebnisse enthält, wurde zugänglich gemacht. Am Montag ordnete das Oberste Gericht auch die Offenlegung aller primären Formulare an.
Computer spielen verrückt

Einen Hinweis auf Unregelmässigkeiten bei der Wahl geben nach Ansicht von Beobachtern auch die offiziellen Beteiligungszahlen. Die IEBC weist für einzelne Wahlkreise eine Teilnahme von über 90 Prozent der registrierten Wähler aus. Der Kriegler-Bericht von 2008 bezeichnet Wahlbeteiligungen von über 85 Prozent als unglaubwürdig. Bevor die elektronische Stimmenauszählung am nationalen Sitz der IEBC abgestellt wurde, waren ausserdem merkwürdige Computerfehler aufgetreten. So wurde die Zahl der ungültigen Stimmen «irrtümlicherweise» mit dem Faktor acht multipliziert. Dies gab Verschwörungstheorien Aufwind, nach denen zur Tarnung von Manipulationen Algorithmen in die Zählverfahren eingebaut worden waren.

Link to the story

It’s Kenyans’ fundamental rights under attack, not sovereignty of their country – Daily Nation, March 21, 2013

Writer James Kimalel should have perused the new Constitution before penning his opinion piece titled “Foreign interests funding civil society to compromise Kenya’s sovereignty” (DN, March 19).

He would have swiftly abandoned his inaccurate speculation that Kenya’s sovereignty is under attack when cases are filed regarding the electoral process.

Article 1(1) of the Constitution says: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

Sadly, he did not read the Constitution; nor did the Nation editors who published the piece without undertaking basic fact-checking.

To characterise the exercise of democratic rights whose aim is the protection and promotion of human rights as an attempt to “compromise Kenya’s sovereignty” is an outrageous attack, not just on the rights enshrined in the Constitution, but also on the Constitution itself. That this is being masked under the flag of nationalism and patriotism is deeply disturbing.

Are we no longer free to think, express and act on the basis of our own beliefs? Last time I checked, Chapter Four of the 2010 Constitution (Articles 19-59) enshrines the Bill of Rights where such rights as freedom of opinion, expression, the media, information, association, and even political rights are explicitly protected.

Moreover, under Article 86, there are clear requirements for the Independent Electoral and Boundaries Commission to fulfil. Any citizen has the right to come forward to make a case that the requirements provided for under Article 86 were neglected.

The courts must listen and independently determine whether this was the case. If the evidence does not stand up in court, the case will fail. If the evidence stands up, then the case will succeed. That is the rule of law. Since when has filing a case become an attack on Kenya’s sovereignty?

Under the Constitution, Kenyans are permitted to exercise their constitutional rights.

It is permitted by law to file a case where a party is seeking due process. Kenyans have rights. How they choose to exercise those rights, as well as whom they associate with in so doing, is their prerogative as long as they remain within the law.

To simplistically claim that the right to file a case and exercise constitutional rights by filing a law suit is “legal warfare” and an attack on Kenyan sovereignty because an organisation received donor support illustrates a shallow understanding of the judicial process.

The very filing of a case intended to observe, protect, fulfil and promote the Constitution cannot be an attack on Kenyan sovereignty.

The era of “big brother” was relegated to reality television through the sovereign exercise of the promulgation of a new Constitution on August 27, 2010.

Of course, there are those who did not believe, and still do not believe, that Kenya’s democratic Jurassic age came to an end and are assiduously trying to return us there.

If Mr Kimalel is anything to go by, it seems that a new, long freezing winter awaits Kenya’s democracy. From the archival toolbox of the repressive Moi-Kanu era seems to have been unearthed and re-engaged some old favourites of the thought-police juggernaut: lies, innuendo, propaganda and misrepresentation.

No longer are people supposed to question or think differently from their leadership; those who do will be ruthlessly tarred with the brush of being unpatriotic.
“Look,” the thought-police shout, “these are vassals and Trojan horses for Western imperialism.”

Is anything that is foreign-funded nowadays a threat to Kenya’s sovereignty? If this is the case, could someone explain why the government is still raising funds internationally for the Lamu Port South Sudan Ethiopia Transport (Lapsset) project? Or the fact that the Free Primary Education programme is still funded largely by foreigners?

Are we wrong to notice that any time there is famine in Kenya, our top government officials proceed from foreign capital to foreign capital, begging bowl in hand?

Mr Kiai is the Kenya programme manager at the Open Society Initiative for Eastern Africa (Osiea). The views expressed here are entirely his, not Osiea’s.

Manual tallying system to come under scrutiny – The Daily Nation, March 17 2013

A civil society group joined the Coalition for Reform and Democracy in filing a separate petition at the Supreme Court to challenge the outcome of the March 4 presidential election.

However, the African Centre for Open Governance (Africog) said their petition is not to challenge the results or the declaration of Uhuru Kenyatta as president-elect but the process the Independent Electoral and Boundaries Commission (IEBC) used to tally the final results.

The organisation had filed a similar petition at the High Court a day after the IEBC resorted to manual tallying of presidential elections. But a three-judge bench of justices Isaac Lenaola, Weldon Korir and David Majanja dismissed the petition on grounds that the High Court lacked jurisdiction to determine issues concerning presidential elections and instead referred them to the Supreme Court.

Africog claims the electoral commission violated provisions of the Constitution which required them to conduct a transparent voter tallying process.

Through lawyer Harun Ndubi, the group argues that the failure of the poll body to transmit results electronically compromised the credibility of the result transmission process.

Manual system

Africog further alleges that IEBC contravened the Constitution by resorting to a manual system and ignoring the fact that voter turnout in many constituencies was recorded as being higher than that registered.

The civil group also argues that the commission failed in its duties by refusing to account for discrepancies in the rejected votes, and that the manual tallying process was shrouded in secrecy after party agents were thrown out.

The group is seeking a declaration that the IEBC violated the Constitution and electoral laws in reaching the final results.

Meanwhile, Chief Registrar of the Judiciary Gladys Shollei said elaborate plans have been made to ensure the petitions are heard and determined within the stipulated 14 days.

Ms Shollei said the six Supreme Court judges are likely to meet on Monday or Tuesday to go through the petitions and familiarise themselves with the issues raised.

“We have made plans for public participation. We will allow live coverage of proceedings and also have a big screen outside the courtroom. The judges are also prepared to make a determination within the stipulated time,” said Shollei.

She added it was unlikely the judges would give a long ruling, saying they would only give their decision on the final days and give the reasons at a later date.

She reiterated the rules and guidelines to be followed by the petitioners from the time they filed the petitions until the day of judgment, adding that the 14 days include weekends.

The petitioners deposited Sh1 million as security and an additional Sh550,000 for publicizing it and other costs. Ms Shollei has three days to publish the petitions in the newspapers; the petitioners have the same number of days to serve all the respondents.

Link to the story

Cord has a strong case, says lead lawyer Oraro – The Daily Nation, March 16 2013

The Coalition for Reforms and Democracy (Cord) has said it is confident of overturning the election of Uhuru Kenyatta as president.

Cord’s lead lawyer George Oraro said the coalition has enough evidence to prove its case at the Supreme Court.

“We (Cord) have a strong case and are sure we are going to overturn IEBC (Independent Electoral and Boundaries Commission) move to declare Uhuru Kenyatta as President-elect,” Mr Oraro said Saturday.

He said the IEBC had not provided all the information Cord needed but it had “sufficient evidence” to mount a strong case.

Mr Oraro said Prime Minister Raila Odinga is the petitioner in the case.

He named the respondents as IEBC, commission chairman Isaack Hassan, Mr Kenyatta and deputy-president elect William Ruto.

Mr Oraro said Cord has assembled five lawyers to argue its case before the Supreme Court. He said Cord was dissatisfied with the way vote counting was done and that party agents did not sign Form 36.

After court officials verified Cord’s documents, the legal team was asked to deposit one million shillings as security and Sh550,000 for advertisement in local media.

Civil society group, AFRICOG, also filed a petition challenging the tallying process at the Bomas of Kenya.

Link to the story

Court throws out petition to stop vote tallying – The Daily Nation, March 8 2013

A bid to stop manual tallying of presidential results flopped after the High Court ruled that it has no jurisdiction to hear any petition touching on the top seat election.

Judges Isaac Lenaola, Weldon Korir and David Majanja on Friday dismissed an urgent application by African Centre for Open Governance (Africog), saying although the activists had raised serious issues, the High Court could not assume the jurisdiction bestowed upon the Supreme Court.

“Issues raised are not idle but should be pursued in the right forum. We have no reason to find we have jurisdiction to handle the matter since presidential election is not pegged on one single event but is a process,” ruled the judges.

Immediately after the ruling, the civil group through lawyer Harun Ndubi said it would take the court’s direction and file the petition at the Supreme Court.

In the petition, Africog had sought to stop the manual tallying of presidential poll results, claiming the electoral commission was violating provisions of the Constitution, which requires it to conduct a transparent vote tallying.

Mr Ndubi argued that the failure of the commission to transmit the results electronically had compromised the credibility of the process.

“IEBC is using a manual system to tally the votes contrary to the law and ignoring the fact that voter turnout in many constituencies is recorded as being higher than those registered,” he said.

The three judges first set out to determine whether they had jurisdiction over the dispute after the activists claimed High Court could determine the case.

Mr Ndubi argued that the court indeed had the jurisdiction to stop the tallying since their concern was not to challenge the outcome, but the need to follow the laid down procedure.

“This is not an election petition challenging the outcome of results but a request brought under Article 35 of the Constitution regarding the failure of the commission to tally and verify the votes at the centres,” he said.

The commission through lawyer Paul Nyamodi opposed the application, saying any issue touching on the presidential election is a preserve of the Supreme Court.

Mr Nyamodi argued that although the application was not a petition challenging the results outcome, it was misplaced since it questioned the process of presidential elections.

“Presidential election is not an event but a process that deals with all issues arising from nominations. The judges must down their tools and dismiss the application or refer it to the proper court,” he said.

The civil group argued in the application that the commission had failed in its duty by refusing to account for the discrepancy in rejected votes.

It sought a court order directing IEBC to start tallying presidential results afresh, and that it revives and use the electronic tallying system.

In the event that the commission would have announced the results, the activists wanted a restraining order stopping IEBC from gazetting the official results.

They claimed that the manual tallying had been shrouded in secrecy after party agents were thrown out and that unless the court intervened, the results would not be fair and transparent.

Link to the story

Group files petition to stop Kenya vote count – The Daily Nation , March 8, 2013

A three judge bench has been appointed to hear and determine a petition filed by the Africa Centre for Open Governance (Africog) to stop the tallying of votes in Kenya’s elections.

The judges will hear the petition at the High Court in Nairobi, Africog’s executive director Gladwell Otieno told the Nation.

Justices Isaac Lenaola, David Majanja and Weldon Korir are scheduled to hear the petition in Nairobi.

“We are raising concerns about the validity of the entire (vote tallying) process,” she said in a telephone interview.

The failure of the electronic transmission process compromised the tallying and the same should be done afresh through verification of results using the primary forms from the polling stations, she added.

The petition has been filed against the Independent Electoral and Boundaries Commission (IEBC) and its chairman Isaack Hassan.

The judges have said they will first address the issue of jurisdiction and will issue a ruling on the matter at 3.30pm

Link to the story

How KANU Government Sold Airports By Ken Opala

As far as aviation standards go, Jomo Kenyatta International Airport is a hub of flying. Planes take off and land one after the other, leaving a buzz and hum of smooth travel and an organisation at peace with itself.

Yet unknown to the millions of people who use this facility every year, a good chunk of the land that Africa’s busiest airport sits, including a planned runway, is owned by private individuals who can wake up one day and claim their plots.

Our investigations have revealed that more than 250 plots have been hived off land belonging to various airports in the country – more than half of them at JKIA – and sold to private individuals, most of it during the era of President Moi.

If the demolition of upmarket homes in Nairobi’s Syokimau shocked the nation last November, the grabbing of land belonging to Kenya’s key airports is deeper and unprecedented.

This development raises questions about plans by the Kenya Airports Authority — the quasi-statutory corporation in charge of the country’s airspace and air facilities — to expand and modernise its key aviation facilities countrywide, given that private developers have taken up plots earmarked for airport expansion and modernisation.

Extensive investigation and examination of documents, The Nairobi Law Monthly can reveal that land merchants have targeted nearly all airports countrywide. Our investigations show that the scandal that was Syokimau stretched beyond the allocation of Jomo Kenyatta International Airport (JKIA) land to just three parties — Mlolongo Brothers Association, Jumbo Housing and Uungani Settlement Scheme.

In fact, 152 parcels have been hived off JKIA — the principal aviation hub in East and Central Africa. Implicitly, while the evictions at Syokimau affected just three allocations — Mulolongo, Jumbo and Uungani — KAA still has lots of land still in private hands.

Sensitive parts of the airport (registered as LR no. 21919) are actually in private hands. Indeed, portions of the apron — the tarmacked area of the airport on which planes are turned, loaded and offloaded — is owned by private individuals, according to documents in our possession.

Also in private hands is the land earmarked for the airport’s second runway and parts of the main flight path (the route a plane follows in the air to take off and land), thanks to underhand dealings by individuals and staff at Ardhi House. The apron and the runway are essential to the smooth functioning of an airport, and if those who received titles were to claim and develop, their parcels of land, operations in Kenya’s airspace and at its airports would face serious disruptions.

Private land developers have taken up close to 250 parcels that previously were the property of the KAA: JKIA (152 parcels), Wilson Airport in Nairobi (25), Kisumu (23), Moi International Airport in Mombasa (11), Eldoret (13), and Malindi (1).

Documents show that two pieces – LR no. 9042/632 and LR no. 22405 – have been shaved off the JKIA cargo apron and another apron at the Old Airport, 18 pieces off the main flight path at JKIA including LR no 23232 and LR no.25799), and 10 parcels have been excised from the proposed second runway, the parcels now claimed by Mulolongo, Jumbo and Uungani.

Plot NRB/EMBAKASI/KATANI/LR no.13512 (allegedly owned by Mulolongo Brothers) and plot LR 14231 (claimed by Uungani) have been earmarked for the second runway whose construction is being funded by the World Bank.

State House

According to our sources at Ardhi House, the headquarters of Ministry of Lands, the allotees include ministers and senior public servants, and political operatives. Others include savings and cooperative societies (popularly known as saccos) of key parastatals. Some of the parcels are owned through proxies and private companies.

Among the notable allotees is a business side-kick of a once-powerful State House Controller. This individual is a director in dozens of companies linked to a former top politician.

Indeed, among the beneficiaries were individuals who were influential during the regime of President Moi. Some were directors of fleets of companies and state corporations. One of them formed a company that dealt exclusively in giving out airport land.

Instructively, and as is with the case with Mulolongo case, some of the land allocation files have disappeared from Ardhi House – and at the Registrar of Companies as well.

KAA concedes that its land has been “illegally allocated to private developers in spite the fact that the same had been previously reserved for airport purposes”, according its chief executive, Engineer Stephen Gichuki, in a letter to Lands and Settlement permanent secretary Dorothy Angote dated December 24, 2010.

Corruption

In the letter, Engineer Gichuki praises the PS for revoking some titles through Gazette notice 15579 of November 26, 2010 and urges her to annul more, which he lists. “We … request for revocation of land titles … for the reason that those parcels of land fall within the land titles of the airports (LR 21919).”

Contacted, sources at Ardhi House said the Ministry was awaiting communication from the Ethics and Anti-corruption Commission. “Once we get the requisite response, we will let you know,” said a highly-placed source who declined to be named until the Ministry received a “substantial” response from the anti-corruption body. The Ethics and ant-corruption commission is reportedly pursuing the case.

KAA is seeking nullifications of the titles on the grounds that their being held by private parties represents a security risk to Kenya’s airspace. According to an internal memo by KAA lawyers, the failed terrorist attempt to bring down a chartered Israeli airliner that had taken off from Moi International Airport in February 2002 compelled several airlines to withdraw from the JKIA circuit, leading to a loss of revenue.

“One of the reasons cited for the (withdrawal) was the lack of sufficient security measures at the JKIA,” says a brief by KAA lawyers.

After the attempt on the Israeli airliner in 2002, the World Bank gave Kenya a $10 million loan to develop a perimeter wall around JKIA, and to help construct the second terminal, which is almost complete. The tender for the construction of the wall went to Nyoro construction company for sh100 million but the company couldn’t proceed after Uungani went to court claiming that KAA was encroaching on its land.

The International Civil Aviation Organization, say sources at KAA, had threatened to declare JKIA unsafe following the Mombasa incident.

Double Allocation

KAA has moved to fence off part of the Syokimau land recovered from land developers last November although it is yet to embark on the development of a second runway.

It is still not clear to what extent the allocations of KAA land are legal. However, a source at Ardhi House claimed a number of them have titles through what has come to be known as “double-allocation”, a euphemism for irregular registration of land owned by state corporations. Implicitly, the government risks entering a legal minefield were it to move to annul titles its own agents issued to the current holders.

The fact that the KAA chief Engineer Gichuki is seeking to annul the allocations implies that the allocations were indeed made; that the contentious pieces have received LR numbers just shows that the
questionable dealings took place in the offices of the Lands Ministry, says the source.

“What will be the government’s argument (in seeking revocation)? This is a case of double-allocation. The titles were given out by the authority of the Commissioner of Lands. They are not forgeries,” said a State counsel who does not want to be named owing to the sensitivity of the matter. “It’s a huge dilemma for the State,” he said.

KAA has put three notices in the media (November 14, 2003, October 7, 2008 and September 25, 2010) about the assault on LR no. 21919, a parcel of JKIA land.

Experts in land matters say that any land set aside for a particular purpose is strictly, in legal terms, not available for re-allocation. “When the Commissioner of Lands gives out alienated land, then it’s an illegality,” said lawyer Paul Ndung’u, who served as the chairman of the 2003 Ndung’u Commission that was appointed by the new NARC government to look into illegal or irregular allocation of public land in Kenya.

He said “in excess of 300,000” titles to such land throughout the country are illegal, and that “is a conservative figure”.

KAA land had already been acquired and paid for by the mid-1990s. It wasn’t available to anybody, Mr Ndung’u said. “There must have been a conspiracy between private individuals and planners and people in the Ministry of Lands.”

Airport Personnel

Indeed, the allocation of airport land wouldn’t have been possible without the involvement of influential people in Ministry of Lands. “It is a case of people entrusted with safeguarding public property robbing the public,” said Jotham Okome Arwa, a lawyer who is an expert in land matters.

“Indeed, there was high-level conspiracy in the Ministry of Lands that require thorough investigations,” according to the report of the Mutava Musyimi Parliamentary committee on Syokimau Allocation.

This is a story of an intricate network that operates in several state offices and is linked to land- buying agents, public servants, lawyers and surveyors. Ardhi House is in the thick of the deal-making. As will be seen in the following story about Syokimau, files were created and then made to disappear inside the ministry’s walls; requisite payments were made; and government institutions gave out conflicting information.

But the key question is: Did KAA personnel knowingly abet the fraud? The Mutava Commission tends toward blaming KAA for inertia.

(The KAA Communication/Corporate Affairs Department failed to respond to a questionnaire this writer sent it almost three months ago. It called off three interview appointments at the eleventh hour)

As early as the 1990s during the tenure of Peter Kipyegon Lagat, the chief executive officer, KAA had placed itself on a collision course with land grabbers. As the authority dilly-dallied, private developers, together with unscrupulous Ardhi House staffers, had positioned themselves to grab plots of land. By failing to fence off its assets, the authority exposed them to the grabbers.

The story begins in June 7, 1994 when the new KAA absorbed the now-defunct Kenya Aerodromes Department through Kenya Gazette Legal No. 201. Earlier through notices 439 and 440 of February 25, 1982, the Aerodrome Department had Syokimau Farm Ltd (L.R 7149/11/R), a former sisal plantation owned by a white Kenyan, with an eye towards the expansion of the airport.

(It is still not clear how much land KAA acquired from Syokimau Farm, nor how much was inherited from the Aerodromes Department)

By 1995, the assets transferred from Aerodromes had “not been valued and transferred” to KAA, according to Parliament’s Public Investments Committee (PIC) report. “Under the circumstances I have been unable to confirm that the fixed assets are fairly stated in the accounts,” the committee chair, Anyang’ Nyong’o, stated.

The following year, the PIC revisited the issue. “The … correctness of the stated fixed assets figure (given by KAA chief executive) is doubtful,” the watchdog committee concluded. Four years earlier, the chief executive had confirmed to the Auditor-General (Corporations) that KAA “did not maintain an up-to-date fixed assets register”.

KAA, despite contributing about 10 per cent to the country’s Sh2 trillion (about Sh200 billion) annual income, had failed to secure its assets and for a long time did not even have a register of its fixed assets. Basically, KAA did not know how much land it owned and may still not know.

Confusion can create a propitious environment for unscrupulous public servants—and their hirelings. It is an all-too-familiar opportunity for fraud and explains why many public sector employees have fought against the computerisation of state registries. In the case of land management, Ardhi House has been the stumbling block to the establishment of the Kenya National Spatial Data Infrastructure that would facilitate information-sharing among institutions.

The confusion over the title only served to attract speculators.

Yet even as the letters passed to and from Ardhi House, the KAA did little to stop further encroachment on its land. It would appear that influential officials within the KAA were not in a hurry to expedite the court cases the Authority had filed against Mlolongo Brothers and the Uungani Scheme way back in 2004.

“Evidence adduced indicates that (KAA) has not been ready to prosecute the case, having been seeking adjournments citing lack of preparation and filing a list of witnesses among other issues,” the Mutava Musyimi committee noted .

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As far as aviation standards go, Jomo Kenyatta International Airport is a hub of flying. Planes take off and land one after the other, leaving a buzz and hum of smooth travel and an organisation at peace with itself.

Lobby wants Registrar of Political Parties sacked – The Daily Nation, January 27, 2013

The Registrar of Political Parties should be sacked for failing to rein in political parties’ indiscipline and malpractices, a lobby group has said.

Kenyans for Peace with Truth & Justice (KPTJ) on Sunday said the Registrar, Ms Lucy Ndung’u, has displayed an unwillingness to enforce her mandate and powers conferred upon her office by the Political Parties Act to rein in rogue political actors.

“She has wilfully failed to exercise her mandate in reining in political parties, a dereliction and abdication of duty which should constitute grounds for her removal,” KPTJ’s Gladwell Otieno told a news conference at the Hilton.

Accompanied by other lobbyists, they said political parties fraudulently registered members of the public as their affiliates, with no action being taken against them by Ms Ndung’u.

Other parties also submitted lists to the electoral agency that included unsolicited nominations to members of the public who only learnt of the actions through the media.

“The institution charged with the regulation of political affairs has displayed a disturbing reluctance to enforce their respective mandates with regard to regulating political competition and ensuring adherence to electoral laws,” Ms Otieno said.

“Of particular concern is the continued disregard of parameters and principles set out in the Constitution and other relevant legislation through practices such as party hopping, the use of violence and intimidation as an electioneering tactic; lack of internal party democracy, including favouritism and nepotism in disregard of the Political Parties Act.”

She hinted that the civil society may sue the Registrar for her inaction.

“We are determined to use all means within the law, including moving to the courts, to protect the public interest in credible, free and fair elections.”

The activists further said the Independent Electoral and Boundaries Commission (IEBC) displayed, within the last week, a tendency to buckle under to political pressure by repeatedly shifting timelines relating to the submission of nomination lists at the whim of the stronger political parties.

Although the Elections Act requires that nominations be conducted 45 days to the elections, the IEBC extended the timeline for political parties to submit their party lists two days after the lapse of the set deadline.

“IEBC must remember that we are watching it closely and that it will be held accountable if it bungles the March 2013 elections. Commissioners should know that they will be held individually liable for any failure of the elections,” Ms Otieno added.

They asked the IEBC to reject aspirants who submitted their nomination papers after the deadline, and that it does not accept nomination certificates from defectors who changed parties after the deadline.

The lobby has also recommended deregistration of political parties which have engaged in violence and fraudulent practices during the recent nominations.

“We are concerned that many of the aspirants cleared by political parties do not meet the threshold of leadership and integrity as set out in Chapter Six of the Constitution.

They further pointed out that although the IEBC is required to regulate and monitor the process by which political parties nominate their candidates, the commission only monitored the process and did not regulate their candidates.

“It was left to the political parties to regulate themselves with disastrous consequences.

This brings about the concerns around the independence of the IEBC – which were already raised in connection with the intervention by the Executive in procurement of biometric voter registration equipment, they said.

The postponement in the procurement of the equipment triggered a series of delays as voter registration that also led to political parties conducting nominations without a voter register to guide them as the provisional register had not been gazetted.

The list is currently undergoing inspection and verification. Voter education is expected to commence immediately.

Link to the story
CSOs raise concerns about the Party nomination process and conduct of IEBC

The Registrar of Political Parties should be sacked for failing to rein in political parties’ indiscipline and malpractices

IEBC accused of overlooking misconduct – The Standard, January 27, 2013

KENYA: The Independent Electoral and Boundaries Commission (IEBC) has been advised to bar candidates with questionable integrity and character from contesting in the General Election.

A section of the civil society members under the banner of Kenya for Peace with Truth and Justice (KPTJ) said IEBC has been helping in defilement of the Constitution by failing to stamp their authority and bring sanity in the electoral process.
Led by lawyer Harun Ndubi, the group accused the IEBC of condoning electoral malpractices, which they are supposed to enforce.

“The Elections and the Electoral Offences Act clearly states their mandate and how they are supposed to conduct the elections. Extending the deadline for submission of the party list is by itself rigging, which is an offence under the Act,” said Ndubi.

The group said IEBC has continued to disregard parametres and principles set out in the Constitution and other relevant legislation through practices such as party hopping and accused them of ignoring several reports, which had been presented to it for review concerning the conduct of some political aspirants.

Speaking during a Press briefing at a Nairobi hotel yesterday, the group lashed out at the electoral body and the Registrar of Political Parties for failing to rein in errant political parties. They took issue with the parties for conducting their nominations using the IEBC voter registrations book instead of the political party’s registrar, citing that the move was against the Political Parties Act.

Flawed nominations

Ndubi also said it is the IEBC that should stop candidates with leadership and integrity issues from contesting the various political seats.

He said the Commission of Administrative Justice had given a damning report of some 24 candidates including TNA’s Mike Mbuvi vying for senatorial position in Nairobi County and also former Embakasi MP Ferdinand Waititu who got the nod to contest the Nairobi gubernatorial seat, to be stopped from contesting.

The group also wants the parties that conducted flawed nominations to be punished for allowing their supporters to cause violence.

The Political Parties Act states: A political party shall not engage in or encourage violence by its members or supporters.

“The institution charged with the regulation of political affairs has displayed a disturbing reluctance to enforce their respective mandate. IEBC has repeatedly shifted timelines for the submission of nomination lists,” said Ndubi.

They threatened to use all the means including filing petitions at the High Court to stop such candidates from contesting.

AfriCOG Marks International Anti-Corruption Day

Corruption greatly impedes economic and social growth in Kenya and in other parts of the world.

Every year since the inception of the United Nations Convention in 2003, International Anti-Corruption day is observed on the 9th of December, with the aim of raising awareness on corruption.

AfriCOG, keen on addressing the structural causes of corruption in the public and private sectors in Kenya, celebrated International Anti Corruption day by reminding Kenyans of the negative effects of corruption and highlighting the importance of observing International Anti-Corruption day. AfriCOG provided citizens with information that they themselves can use to monitor governance processes and public ethics issues, in order to be able to effectively participate in the fight against corruption.
AfriCOG Marks International Anti-Corruption Day

Corruption greatly impedes economic and social growth in Kenya and in other parts of the world.

Anti-Corruption Non-Profit “Kuhonga” Goes to Great Lengths to Fight Corruption

The founders of Kuhonga, proudly refer to it as their corporate baby, referring to the day they incorporated their fledging organization and started to working on “A crazy idea that just might work,” according to Nathan Wangusi a Kenyan expat and CEO of Kuhonga. “When I returned to Kenya for the first time in several years in I had to pay two bribes just to get out of the airport. I knew then and there that I needed to do something about petty corruption.”

Mr. Wangusi has since developed Kuhonga on a web-based platform Ushahidi that allows for real time reporting and mapping of corruption incidents via a number of channels, including Twitter, Facebook, email, mobile app and SMS. “When I looked at my Facebook feed I constantly saw people talking about corruption. I saw the potential for crowdsourcing and social media to make a difference.”

Although Kuhonga hasn’t yet released a final version of its platform, a test version is accepting reports. Users can visit www.kuhonga.com to submit a report. Reports can also be submitted via twitter by simply using the hashtag #kuhonga on any tweet. Ushahidi has also recently released a mobile app that can be downloaded either on the Android Market or Apple Store. Kuhonga’s deployment can be uploaded to this app.

Kuhonga has also partnered with the Africa Centre for Open Governance (AfriCOG) an existing nonprofit that works to improve governance and support anti-corruption efforts. “Kuhonga works by aggregating all of the ongoing conversations about social media and turning them into the type of data that a non-profit like us can actually use” said Charles Wanguhu a human rights practitioner at AfriCOG.

Kuhonga will also be partnering with several news outlets including such as Voice of America to boost its profile and to take advantage of news content that identifies incidents of corruptions.

“Once we perfect our technology platform we’re going to start working extra hard to get the word out so we can raise awareness of the platform and secure additional funding” said Rahma Mkuu one of the co-founders of Kuhonga and a master’s student in the public health program at Columbia University in New York. Ms. Mkuu, who is also a Kenyan expat, was inspired to help Kuhonga after she encountered corruption while attempting to provide toothbrushes to Kenyan children as part of an earlier non-profit effort.

Mr. Wangusi has been invited to attend and speak at the 15th Annual International Anti-Corruption Conference in Brazil this November. He will be speaking about the role of technology in tackling corruption.

Contact: Lewis Kirvan; programs@kuhonga.com

Concerns on public role under the new Finance Act – The Star, September 15, 2012

Several civil society organisations have expressed concerns over the legal and regulatory regime that will define public participation in matters of finance under the new Public Finance Management Act assented to by the President in July. The organisations on Friday said there are sections of the new law related to public participation that will require further regulations. They offered views on minimum standards, principles and the scope that should be considered in the regulations to ensure ingenuity of the process.

“Public participation both at national and county level is a mechanism for accountability and transparency. The regulations should therefore open up as many channels as possible for the process and also bring clarity on what qualifies as public participation,” said Kwame Owino, CEO of the Institute of Economic Affairs, a public policy think-tank.

Though no announcement has been made seeking input into draft regulations for the PFM Act, the organisations said it’s not too early to consider the implications on public participation A technical team at the Treasury is already drafting the regulations which are expected to be availed for public comment by end of October.

“It is important that citizens clearly articulate their views on what constitutes genuine public participation, and how this should be organised, before the regulations are drawn up and the new order is firmly established,” a joint policy brief by the civil societies read. A new body, the County Budget and Economic Forum (CBEF), has been created by the PFM Act, which the organisations said should serve to convene public consultations and not representing the public.

“This body should not become simply an extension of the Governor’s power, but should be used to facilitate genuine citizen participation,” the policy brief read. The organisations propose the regulations should include vetting of CBEF members, a non-renewable one-term limit of maximum five years, and open and transparent meetings.

The CBEF should also be mandated to release budget information and to hold a meetings – which should be capped to about five in a year to avoid strain on county budgets – at different points of the budget cycle to both explain plans and budgets, and get public feedback on budget implementation. The civil societies – HakiJamii, IEA-Kenya, The Institute of Social Accountability (TISA), AfriCog, National Taxpayers Association, Kenya Land Alliance, CLARION, MUHURI, Twaweza, and the International Budget Partnership – also outlined broad principles that should guide public participation. 2

The East African, September 15, 2012 – Civil society calls for vetting of county budget funds and officials

Kenya risks losing millions of dollars in taxpayers money to mismanagement over loopholes in a proposed public finance law, experts have warned.

A group of civil society organisations have proposed amendments to Kenya’s new Public Financial Management Act, saying it should allow public participation in the budget processes.

According to the group, a new body created by the Act – County Budget and Economic Forum (CBEF) – could be used as a smokescreen to push the government’s agenda.

Under Kenya’s new devolved system, matters relating to budgeting, the economy, and financial management will be done at the county level and not national level.

All counties will be expected to prepare their plans — County Fiscal Strategy Paper, and the Budget Review and Outlook Paper — every year.

The devolved system, expected to dictate the preparation of the next budget, is distinct in the way it distributes power among the various arms of government, and in the establishment of an elaborate system of checks and balances to curb abuse of power by senior public officials.

But the group, which includes the International Budget Partnership, the Institute of Economic Affairs, Africog, National Taxpayers Association, Kenya Land Alliance, Muslims for Human Rights and Clarion, now wants the government to outline plans for direct public participation, as provided for in the constitution.

They also called for vetting of CBEF members, term limits, and open and transparent meetings, while suggesting how the Forum should function based on Kenya’s experience with other participatory processes.

They demanded that the CBEF release budget information and hold meetings at different points during the budget cycle to explain plans and budgets as well as get feedback on budget implementation from the public.

“In our view, the principal role of the CBEF should be to convene public consultations, rather than to represent the public. This body should not become simply an extension of the Governor’s power, but should be used to facilitate genuine citizen participation,” read a statement issued by the group.

They also want regulations governing the CBEF to guarantee that the body is professional, representative, and non-partisan. As it is, an ordinary citizen cannot sit on the forum unless he or she is nominated by an organised interest group.

The civil society organisations want all those nominated to be part of the CBEF to be vetted by a committee of the county assembly, and the vetting made public, and all nominees declare their assets.

In addition, CBEF members should only serve for one, non-renewable term of no more than five years.

They also want to safeguards established to prevent consultative forums from being taken over by any political group.

Further, they proposed a list of principles of public participation which they said should apply to matters of public finance.

KRA probes multinationals over tax abuse – by Jevans Nyabiage

The Government is tightening the noose around tax leakage. In the finance bill 2012, Finance minister, Njeru Githae gave Kenya Revenue Authority powers to issue further guidelines on transfer pricing — which happens whenever two related companies – parent company and a subsidiary, or two subsidiaries controlled by a common parent firm trade with each other.

Transfer pricing is not, in itself, illegal or abusive.

What is illegal or abusive is transfer mispricing, also known as transfer pricing manipulation or abusive transfer pricing. Previously, only the minister could prescribe rules under the Income Tax Act.

According to PricewaterhouseCoopers Kenya (PwC), the changes could have far-reaching implications on taxpayers. “But will the Commissioner’s changes make compliance easier for taxpayers or make the waters murkier?” poses PwC in its Budget 2012/13 analysis document.

The Income Tax (Transfer Pricing) Rules 2006 have been amended to enable the Income tax Commissioner to prescribe conditions and procedures to guide taxpayers on the application of the transfer pricing methods as set out in the current rules. This will affect taxpayers engaged in transactions with non-resident entities.

The transfer pricing rules currently allow taxpayers to choose which method to apply taking into account their particular circumstances in line with international best practices and allows taxpayers to choose the most appropriate method.

“The change may be aimed at directing taxpayers, albeit not so gently towards how the KRA would like particular methods to be applied,” says Deloitte East Africa.

An investigation carried out with the support of Africa Centre for Open Governance (AfriCOG) through its Investigative Journalism Programme (I.J) found out that more than a dozen firms are under probe for possible abuse in transfer pricing.

The taxman zeroed in on these firms after scrutinising about 300 of them in an attempt to combat abuse of the practice that involves drastically reducing payable tax so as to transfer profits to associated companies in tax havens outside Kenya.

According to a source at KRA, hundreds of firms with multinational links have received letters from the taxman since November 2009 asking them to formulate and defend their transfer pricing policies.

Those under investigation are three horticulture firms while others are in tobacco, telecoms and manufacturing business. Some have been found to have evaded tax through irregular transfer pricing practices.

In a past interview, KRA Commissioner-General John Njiraini, confirmed that he was indeed investigating some companies for possible abuse of transfer pricing. However, KRA has not given a figure of how much it could have lost or recovered through transfer pricing.

In 2009, KRA auditors found that some Sh1.76 billion had been irregularly evaded with just one company responsible for half the amount.

Fredrick Omondi, head of transfer pricing practice in East Africa at Deloitte & Touche, in a past interview said KRA has targeted most of the large multinationals in Kenya and says the audits are at various stages.

“The increasing focus on transfer pricing means that multinationals — taxpayers with related parties outside Kenya — face an increased risk of tax adjustments,” Omondi said, in an earlier interview.

He says it is likely that there will be many contested cases in the initial period before precedents are set and both parties adjust accordingly. KRA plans to triple staff at the transfer-pricing unit in the next few years to handle the rising abuse of transfer pricing. The unit was set up in place in 2009 and has 17 staff.

Global Financial Integrity estimates that the country loses close to Sh17 billion annually in tax revenue, with significant amounts benefiting European and North American countries. The amount can finance free primary education for two years, taking into account the Sh8.25 billion budgeted for 2011/12 fiscal year.

It is also about half the amount used to rebuild Nairobi-Thika highway into an eight-lane super highway. Other figures from Tax Justice Network show that the country lost about Sh156 billion ($1.7 billion) between 2000 and 2008. The UK-based charity, Christian Aid says in a report that Kenya loses up to Sh130 billion annually in untapped tax from corporates.

Court case changed KRA’s view on transfer pricing – by Jevans Nyabiage

Fourteen years ago, someone at the Kenya Revenue Authority (KRA) found out that Unilever was selling its Nairobi-produced Omo washing powder and Close-Up toothpaste at lower prices in Uganda than in Kenya.

The local committee of the Income Tax Department on September 17, 2003 ruled against the multinational for diverting part of its profits to its Ugandan subsidiary, denying Kenya taxes. Unilever Kenya Ltd moved to High Court in the same year to appeal against KRA decision.

Unilever Kenya Ltd and Unilever Uganda Ltd had entered into a contract dated August 28, 1995 whereby the Kenyan unit was to manufacture on behalf of the Unilever Uganda and supply to it such products, as it required in accordance with the orders issued.

Unilever Kenya supplied such products to the Uganda unit during years 1995 and 1996. According to KRA, Unilever Kenya charged lower prices to Unilever Uganda than it charged its domestic buyers and importers not related to Unilever Kenya.

The Commissioner of Income Tax raised assessments against Unilever Kenya in respect of years 1995 and 1996, in respect to the sales made to the Uganda unit on the basis that Unilever Kenya’s sales to Unilever Uganda were not at what is called at “an arm’s length” prices — which means that any transaction between two entities of the same firm should be priced as if the transaction was conducted between two unrelated parties.

KRA noted major differences in prices offered by a related party — Unilever Uganda with exclusive marketing rights — were approximately 25 per cent lower than those offered to the independent third parties in Kenya exporting to the Tanzanian market.

KRA formed the opinion that the prices offered to the related subsidiary in Uganda offended the arm’s length principle, which states that the amount charged by one related party to another for a given product must be the same as if the parties were not related.

What the law says

Section 18(3) of the Kenya Income Tax Act says “Where a non-resident person carries on business with a related resident person and the course of that business is so arranged that it produces to the resident person either no profits or less than the ordinary profits which might be expected to accrue from that business, if there had been no such relationship, then the gains or profits of that resident person from that business shall be deemed to be the amount that might have been expected to accrue if the course of that business had been conducted by independent persons dealing at arm’s length.”

According to Section 18(6) of the Act, the two companies were related by virtue of the fact that a third person (Unilever Plc) participated directly or indirectly in the management, control or capital of the business or both.

“On examination of the sales account and invoices, major differences were noted in prices offered to related parties against local customers and independent (third-party) exporters of the same commodities to the Tanzanian market,” KRA official said, in its submissions. But the taxman faced a major obstacle: at the time there were few people on its staff familiar with these transactions, and there was inadequate regulatory framework in place to deal with what is commonly known in accounting parlance as transfer pricing. Unilever won in the appeal.

High Court Judge Alnashir Visram sitting in Nairobi on October 5, 2005 ruled that due to the absence of Kenyan transfer pricing legislation, a major manufacturer and distributor of popular, fast-moving consumer goods like Omo could not be faulted for having applied internationally recognised principles in setting their transfer pricing policy.

Transfer pricing refers to the pricing arrangements set by multinational-related entities in transactions between themselves such as the sale of goods, provision of services, transfer of intangible assets, lending or borrowing of money and any other transactions that could affect the profit or loss of the entities.

Single parent firm

This happens whenever two related companies – a parent company and a subsidiary, or two subsidiaries controlled by a common parent – trade with each other. All transactions within the corporations are subject to transfer pricing including raw material, finished products, and payments such as management fees, intellectual property royalties, loans, interest on loans, payments for technical assistance and know-how, and other transactions. The rules on transfer pricing requires multinationals to conduct business between their affiliates and subsidiaries on an “arm’s length” basis.

If two unrelated companies trade with each other, a market price for the transaction will generally result. This is known as “arms-length” trading, because it is the product of genuine negotiation in a market. This arm’s length price is usually considered to be acceptable for tax purposes.

Taxation woes

But when two related companies trade with each other, they may wish to artificially distort the price at which the trade is recorded, to minimise the overall tax bill. This might, for example, help it record as much of its profit as possible in a tax haven with low or zero taxes.

After losing the case, it was back to the drawing board for KRA. It was forced to suspend audits of other companies. This gave rise to a raft of regulatory changes aimed at roping in firms that were abusing their tax obligations.

The tax agency would later drop a similar case against Sara Lee before it developed national rules on transfer pricing in the 2006/7 financial year that have guided self-evaluation by companies to the present time.

KRA then went back to the drawing board and in 2008 formed a transfer pricing team that focuses on transfer pricing audits. The agency then resumed the transfer pricing audits from 2009. KRA says although Kenya has been among the most aggressive in pursuing transfer pricing cases, it has not been easy.

KRA pays price of tax incentives – by Jevans Nyabiage

Every year, Kenya foregoes more than Sh100 billion in tax exemptions in a bid to attract foreign investment.

This is despite indications the Government is losing revenue in export processing zones through incentives.
Studies by the International Monetary Fund (IMF) and tax analysts suggest that tax exemptions also lead to loss of foreign direct investment.

A new study by the Tax Justice Network-Africa and Action Aid International indicates that despite being the country with the most generous tax incentives in the region, Kenya was also the biggest loser in foreign direct investment (FDIs) inflows compared to Uganda and Tanzania.

According to the study, while Kenya’s FDI inflows stood at $133 million in 2010, Uganda and Tanzania $848 million and $700 million respectively over the same period.

In the study, export processing zones (EPZ) represent the largest sector where the Government is losing revenue through tax incentives.

It s emerging that many EPZ firms are closing shop after their 10-year tax holiday and re-registering under new names or relocating to other countries to avoid taxation.

EPZs employ about 30,000 people, down from 38,000 in 2005, which the study highlighted as an indication that the businesses were relocating.

Some tax benefits available to investors include zero-rated corporation tax holiday for a year and 25 per cent tax thereafter, 10-year withholding tax holiday, stamp duty exemption and 100 per cent investment deduction on initial investment applied over 20 years.

Textile industry

Dereje Alemayehu, the chair of the Tax Justice Network, said EPZ firms, notably those in textiles, accounted for 70 per cent of the exports under the US African Growth and Opportunity Act (AGOA).

At least 61 per cent of the firms operating in Kenya’s EPZ are from China, UK, US, Taiwan, Qatar and The Netherlands among other countries.

Kenya’s textile exports to the US remain limited — they represent fewer than 100 of the 6,500 eligible categories in the AGOA framework.

However, the Government is in the process of implementing special economic zones (SEZ) to expand the range.

But the SEZs are not the answer, Tax Justice Network – Africa Coordinator Alvin Mosioma argues, as they are just geographically defined regions where any company can operate tax-free.

“De La Rue (the currency printing firm) is registered in Ruaraka as an EPZ, and there is no logical explanation why it should be operating as an EPZ,” Mosioma says.

“It is a question of what the rationale of designating specific companies to operate in a geographical area where they are not paying tax,” he said.

To curb such practices, the study recommended the removal of tax incentives granted to attract FDI, particularly those provided to EPZs and SEZs, a review of all tax incentives on an annual basis, as well as tax coordination among East African Community (EAC) member countries.

Treasury is reported to be reworking its tax exemption policy, and a number of incentives are likely to be scrapped.

Estimates show that trade-related tax incentives amounted to at least Sh12 billion in 2007/08 and may have been as high as Sh47.6 billion ($566.9million).

In 2010/11, the Government spent more than twice the amount on providing tax incentives than on the country’s health budget – a serious situation when 46 per cent of Kenya’s 40 million people live on less than $1.25 a day.

“Tax holiday is a form of subsidy which distorts the market. Given a tax holiday means that you get higher profits than would be expected,” says Dr XN Iraki, a University of Nairobi lecturer.

Kills competition

“This may lead to lack of innovations as firms feel they are “protected” from competition.”

“Firms could also time their exit with the end of tax holidays so that they “harvest” maximum. This reduces long-term commitments.”

Ragnar Gudmundsson, the IMF resident representative in Kenya, says existing studies on developing countries show that while tax incentives can stimulate investment, and FDI in particular, a more important factor in determining investment and FDI is a country’s overall economic characteristics, including the quality of institutions, the size of the market, and location-specific factors, notably those linked to natural resource wealth.

“The cost of tax incentives are numerous, including budget revenue foregone, administrative and compliance costs, rent-seeking behaviour and corruption, and economic distortions that favour one industry at the expense of another,” says Gudmundsson, who has been vocal in pressuring the Government to rethink its tax incentives policy.

“There are genuine concerns about their effectiveness, but the review should take into account the bigger picture in terms of the overall economic goals of the government rather than just tax collection,” says Fredrick Omondi, a partner at Deloitte.

Omondi says the recent debate on the strength of the shilling has brought out that fact that Kenya relies ‘excessively’ on imports due to limited local production.

Local manufacturing

“Therefore, it is evident that we need to make Kenya an attractive country for productive industries. And taking into account our uncompetitive environment in terms of critical factors such as infrastructure, taxation still remains a key tool for providing incentives for sectors that are assessed as key to unlocking our economic potential,” he adds.

He says there is need to define specific parameters or set thresholds that should be attained by the beneficiaries such as employment creation (minimum number of employees, minimum wages…) in line with current priorities of the nation.

“It would be counterproductive to do away completely with tax incentives bearing in mind that we are in a globally competitive environment, and due to the mobility of certain factors of production, companies can locate their activities in other countries,” Omondi says.

“Other countries are focused on attracting investment, and we must do our bit to remain attractive.”

South Africa, for example, set aside an estimated Sh200 billion last year to provide tax incentives to promote investment and expansion in manufacturing.

“If incentives are used to correct features in the tax system that impede investment, it is preferable to correct these limitations through appropriate tax reform,” Gudmundsson said.

“If incentives are used to address weakness
es in the macro-economic or structural environment, it is preferable to implement sound policies or undertake specific reforms.”

“And if incentives are used to correct for regulatory or administrative weaknesses, it is preferable to correct and remove the deficiencies. If incentives are used for social policies, it is more efficient targeting beneficiaries directly.”

Gudmundsson says Kenya needs to be particularly wary of tax competition, where neighbouring countries or countries with similar economic structures compete to attract FDI by offering increasingly generous incentives to foreign investors.

“Such tax competition generally ends up leaving very few benefits to the host country. This is a race to the bottom that should be avoided at all costs, including by enhancing collaboration between revenue authorities at the regional level,” he adds.

“It is clear Kenya needs more foreign direct investment, especially in manufacturing. This is the lesson from East Asia,” says Wolfgang Fengler, the lead economist at the World Bank’s Kenya office.

Attract FDI

Iraki, also the MBA programme coordinator at the University of Nairobi, says to attract FDI, the county can simply make it easy to do business in Kenya by reducing bureaucracy and corruption, and investors will flock in. Investors can make much more money in a business-friendly environment than from tax holidays.

“If tax holidays must be used, they should be part of incentives, not the only incentives and should focus on long-term commitment,” he says.

“They should be based on solid economics, not politics.”

Link to the story in the Standard Media website
Every year, Kenya foregoes more than Sh100 billion in tax exemptions in a bid to attract foreign investment.

How Public Servants Gave Away Syokimau – by Ken Opala

They all believed the plots were legitimate.

After getting transfers from the Mavoko Town Council as well as approvals from the lands office in Machakos and permanent buildings come up, Arthur Omollo, like thousands of other eager home-seekers, knew all was well with Syokimau plots that they had just bought.

Samuel Isiaho and Ben Avaga did a title search at Ardhi House, the headquarters of the Ministry of Lands and Settlements, before buying their parcels from the 950-member Jumbo Housing Scheme. They were made to believe that the allocations were clear.

Everything at Syokimau estate appeared to be in order — until the monster-like demolition machines began tearing down multi-million-shilling residences last November. Mr Omollo and 600 others discovered too late that they had built houses on land belonging to the Kenya Airports Authority (KAA).

The Syokimau allocations were a grand con scheme. Public officials insinuated themselves between dishonest land agents and land buyers, many of whom were unsuspecting, with the aim of enriching themselves. The officials may have been privy to the scheme and therefore colluded in the shady deals.

For four months, this writer has attempted to gauge the involvement of state officials and institutions in one of the country’s biggest land scandals in which 3,000 people bought land earmarked for the expansion of Jomo Kenyatta International Airport (JKIA).

Investigations have uncovered organized forgery and complicity of state employees. The fraud was easy to execute. One, the vast land was unsecured.

Two, state officials were ready to create phantom files and respond to public searches. Three, the government lacked a system for information-sharing so the right hand didn’t know what the left was doing. Four, KAA did not have a register for its assets.

How the scam was executed

At the centre of the questionable deal were three land-buying companies: Uungani Settlement Scheme self-help group, Jumbo Community Self-Help Group, and Mulolongo Brothers Association (Company). Together, the groups “owned” 1,200 hectares contiguous, adjacent to JKIA.

They hived off LR no. 13512 (Uungani), LR no. 143231 (Mulolongo), and LR no. 143231/2 (Jumbo) off LR no. 21919 (4459.1ha) belonging to KAA.

The three claim to have been allocated the parcels variously between 1988 and 1998. However, if available documents are anything to go by, the groups may not have been legal entities when they acquired Syokimau. The Ministry of Sports, Culture and Social Services registered Uungani in 2008, while Mulolongo was registered on June 8, 2008.

Why the three land merchants waited until 2003 to start subdividing the land they had acquired 15 years earlier – or putting up houses – has raised questions.

What has emerged is that the large parcel was allocated to them by State officials who knew that KAA was the real owner of the land in question. Ardhi House then sanctioned the deals. The process wasn’t regular, but the resultant documents are hardly forgeries. “It is a case of double allocations,” a senior official at Ardhi House, who requested anonymity, said.

In fact, the Director of Surveys at the Ministry of Lands once questioned the transaction. “It is significant to note that the Commissioner of Lands gave a letter allotment, and a new grant survey was performed that caused the new parcel to be born, i.e. LR no 14231/1 (claimed by Mulolongo Brothers),” B.K Gitonga, an official in the Nairobi Provincial Office, wrote to the Deputy Registrar of the High Court, W.M Muiruri, on November 3, 2009.

Mr. Joseph Kabilu, the secretary of Jumbo, says the then Commissioner of Lands, James R. Njenga gave his group the letter of a llotment for LR no. 14231/2, a 200-hectare piece next to Uungani, in 1986. (Mr. Kabilu says he is under instructions from the CID not to disclose any documents.)

As for the 1,800 member Uungani Scheme, it is the Commissioner of Lands official Wilson Gachanjah who issued them a letter of allotment for LR no. 14231 on September 15, 1996, within weeks. This ‘allotment’ was certified by the Registrar of Lands, despite the fact that KAA had already acquired the title the previous month.

A letter of allotment is a formal offer by the Commissioner of Lands to enable an applicant to purchase land; it does not in itself prove ownership.

And before Jumbo, there was the 1,600 member Mulolongo Brothers Limited, whose directors are Stephen Nzuki Mwania, Muteti Musombe, John Mutuku Muinde, James Njoroge Murigi, Solomon Mwinzi Mwau and Vijaykumar Kantilal. The government sats Mulolongo fraudulently acquired 100 hectares registered as LR no. 13512.

Involvement of public officials

Investigations indicate that the land buting companies took advantage of loopholes in Kenya’s land transfer process to perpetrate a scandal. Working with Ministry of Lands officials and the Attorney General’s Chambers, they ensured that potential land buyers would not suspect a thing.

The involvement of Ardhi House was crucial to lend credibility to the transactions and to make it easy for the ministry to give potential land buyers the greenlight. Uungani even managed to have a land transfer file created at Ardhi House.

In this way, Uungani – whose listed directors are Wambua Mila, Elijah Runo and Charles Agutu – could now pay statutory fees. On April 12, 2002, Uungani paid Sh 1,123,124 as a legal conveyance fee and Sh 120,090 for stamp duty, rent and survey through cheque (no. 014384 and no. 0148110) and was given receipt no. F256373. This couldn’t have happened without the knowledge of lands officials.

With the requisite file established at Ardhi House, potential property developers could not doubt the availability of Syokimau land. “Uungani Settlement Scheme may have been in collusion with the Ministry of Kands officials to prepare, authenticate and grab public land,” says a report by the Parliamentary Committee on the Syokimau allocations.

Unlike Uungani, Mulolongo Brothers used a different route to seek “legitimacy”. It decided to relocate the transaction documents from Nairobi to Machakos by converting their parcel from Registered Title Act (RTA) to Registered Land Act (RLA) through a legal notice.

“To avoid deeper scrutiny, somebody thought it wise to move files from Ardhi House to the Machakos Lands office,” a source at Ardhi House said.

All transactions under the RLA are done in the respective Districts while those that fall within the jurisdiction of RTA are done in Nairobi and/ Mombasa. There is a disagreement over the location of Syokimau, although section 5 of the Local Government Act (Chapter 256) gives Machakos control over Syokimau.

Judging from correspondence, it would appear that some elements in the government were asked to fast-track the request. In one such attempt, the Chief Land Registrar’s office certified Mulolongo’s application for conversion, filed by J.R.R Aganyo, a licensed land surveyor based at Old Mutual Building, Kimathi Street, Nairobi. The letter was referenced ARA/23/1X/58.

Upon receiving the letter and certifying it as CLR/R/47/A on May 5, 2009 in the Land Registry, A.W Kuria, wrote to the director of Surveys Ephantus Murage to seek the viability of the conversion in terms of the law. Somehow, the same office of Director of Surveys that had surveyed the plot for KAA way back, confirmed that the conversion was indeed viable.

“This is to confirm that it will be possible to produce a Registry Index Map (RIM) for (LR no. 135120) upon your conversion of the same,” H.F Jumba, an official in the Director of Surveys office, wrote to the Chief Land Registrar on June 16, 2009. Jumba copied the letter to J.R.R Aganyo & Associates, the Mulolongo Company surveyor.

Mr Kuria had purportedly written to the Attorney General Amos Wako three weeks earlier, appearing to lobby for the conversion. “The conversion is meant to facilitate the issuance of the title under (RLA). Please approve and return for signature by the Minister before publication in Kenya Gazette,” he stated.

Mrs E.N Gicheha, the Deputy Chief Land Registrar, tried in vain to stop the process on claims that it was irregular because a copy of the title had not been authenticated. She wrote to J.R.R Aganyo: “I note that the copy of the title you forwarded is not registered and request, for a certified copy of the same to enable me proceed.”

Somehow, and inexplicably, the Gazette notice (no 157 of 2010) was eventually published on August 26, 2010. Ardhi House claims somebody forged the signature of Lands Minister James Orengo as well as that of Ms Gicheha to facilitate the publication, according to our contact at Ardhi House.

J.R. Aganyo now distances himself from the deal. “They (Mulolongo Brothers) had asked us to do some work for them, but when we inquired about the survey plan, approvals from Commissioner of Lands and the search documents to ascertain the authenticity of the transactions, they just disappeared,” Mr Aganyo said. “We asked for all these things, but they didn’t give us anything. We didn’t work for them.”

When contacted, Mr James Njoroge Murigi, a director of Mulolongo, said: “What else do you want to know? You people (of the Press) have written everything you want. The matter is before Parliament. It is not the people to judge; it is the courts.” Then he hung up.

Nonetheless, with the files safely in Machakos, it was easy for the buyers to acquire the requisite part developments plans (PDP) from Mavoko Municipal Council. Machakos lands office personnel and a government surveyor strategically placed themselves to respond to any search queries about the Mulolongo land. They judiciously justified the availability of the land for potential buyers who made searches at the Machakos Lands office.

PDPs are used for land allocations. They are prepared by the Director of Planning and show the exact site of any development on a parcel of land – whether for residential, agricultural, industrial or business use.

“Officials at the Machakos Lands office confirmed the title (belonged to Mulolongo) on April 25, 2006,” according to Mr Tubman Otieno, who was Mavoko Town clerk at the time. “We thus had no reason to doubt.”

Why Syokimau was a target

The fact that the commissioner issued allotment letters for land already earmarked for the public good is striking. In law, alienated government land can only be placed in private hands through an elaborate process involving the public.

Now, the million-dollar question is: Why was it so easy to give out State land? Or better still, why was state land an easy target?

Land fraudsters know that the government does not have an information-sharing mechanism among its various offices and bodies. Thus, one could undertake “double allocations” without raising eyebrows. And in the case of land management, Ardhi House has been the stumbling block in attempts to establish the Kenya National Spatial Data Infrastructure, which would facilitate information-sharing among institutions.

Secondly, State employees often take advantage of confusion to target public land. And, naturally, by virtue of their positions in government, they will be equipped with information about land that can be grabbed without kicking up a storm. Syokimau was vast, uninhabited and had no developments to prove it belonged to anyone. In fact, KAA had leased it to livestock ranches, including Pokeny Ranch of Kajiado, in what it called “temporary occupation”.

KAA inherited the land from the defunct Kenya Aerodromes Department on June 7, 1994, through Kenya Gazette legal notice no. 201. Earlier, through other notices, 439 and 440, of February 25, 1982, the department acquired Syokimau Farm Ltd (L.R 7149/11/R), with an eye on expanding Jomo Kenyatta International Airport.

KAA, despite contributing about 10 per cent to the country’s Sh2 trillion GDP (about Sh200 billion), failed to fence off its land. What’s more, it did not have a register of its fixed assets. &nbs
p; So, implicitly, KAA hardly knew the size of land it owned. “Under the circumstances, I have been unable to confirm that the fixed assets are fairly stated in the accounts,” the parliamentary Public Investments Committee (PIC) committee chair, Prof Anyang’ Nyong’o, stated in 1995.

As if that was not enough, KAA’s asset management was suspect. For five years from 2001, the authority maintained two titles for the same land. LR no. 24937 (4,674.6 ha, registered in 1996) was not surrendered when KAA acquired a new one, Title LR no. 21919 (4459.1 ha) following the excision of JKIA from Mombasa Highway.

In fact, scrupulous officials at Ardhi House had cautioned KAA about the irregular transactions. G.L. Mukofu, an official in the office of Commissioner of Lands, wrote to John Tito, the KAA chief legal officer, in December 2005, saying: “Please note that all the purported allocations as depicted in Letters of Allotment to M/S Uungani Settlement Self-Help group and Mulolongo Brothers Association are not genuine”.

Were the KAA actions deliberate? The KAA management declined to be interviewed for this story and did not respond to questions sent to it two months ago. “Failing to maintain a fixed assets registrar is deliberate, so that land is available. You can shop small pieces on the edges,” said lawyer Paul Ndung’u, the chair of the 2003 Commission of Inquiry into the Illegal/Irregular Allocation of Public Land whose damning report was presented to President Mwai Kibaki in June 2004.

Instructively, the land deals happened during the tenure of Mr Peter Kipyegon Lagat as CEO, who is facing a court case over abuse of office in which business people colluded to acquire land belonging to the Moi International Airport. He is charged jointly with Wilson Gachanjah, the Commissioner of Lands at the time. It was during Lagat’s tenure that KAA was scandal-ridden, including a fraudulent scheme in which Anglo Leasing suspect Merlin Kettering failed to fully implement a $760,000 computerisation programme despite receiving the payment.

“(The government) should be held responsible,” said the Mutava Committee. “The Lands registry, Ministry of Lands, Machakos, provided certified copies of land documents and in collaboration with the Mavoko Municipal Council approved land allocation and development plans.”

Lawyer Ndungu adds, “Corporations would write to the commissioner of lands and say they didn’t think they needed ‘all this land’. By the time the letter was done, they would have made arrangements with the commissioner to fast-track the issuance of documents (such as letter of allotment). There would be people already on the land, waiting to transfer the same to other individuals or corporations.”

From the interviews, KAA only moved against the encroachers following the terrorist attack on an Israeli airline at Moi International Airport, Mombasa. The International Civil Aviation Organisation had threatened to declare JKIA unsafe, subsequent to the incident.

“Following the attempt on the airline, many airlines … pulled out of JKIA with attendant (revenue) losses. One of the reasons cited for pulling out was lack of sufficient security measures at the JKIA,” says a brief prepared by KAA lawyers.

Consequently, the World Bank gave Kenya $11.5 million loan to develop a perimeter wall around JKIA and to assist in constructing the second terminal, which is almost complete. The tender for the construction of the wall (contract KAA/ES/JKIA/658/CON) went to Nyoro Construction Company for Sh100 million, but the company could not proceed after Uungani went to court claiming that KAA was encroaching on its land. The project is still stalled.

The World Bank cautioned that if construction of the perimeter wall was delayed, it would cancel the loan. JKIA was first used in 1958, then known as Nairobi Airport. It was designed to handle 2.5 million passengers a year; today it handles more than 7.5 million.

Syokimau is a classic example of how thousands of Kenyans fell prey to fraudsters working jointly with corrupt public servants. Mr Ndung’u says “in excess of 300,000” titles countrywide are illegal. And that, he adds, is a conservative figure.

“It is a case of people entrusted with safeguarding public property robbing the public,” said Jotham Okome Arwa, a lawyer and expert in land matters.

“I can only guess that it was the work of smart conmen,” said Mr Ndung’u. “Normally (fraudsters) don’t act alone. They incorporate various public officials. It is often a cartel.” His 2004 report warned about possible transactions like Syokimau. The recommendations of the commission of inquiry that he chaired have yet to be properly implemented.

— This piece has been published with the support of Africa Centre for Open Governance (AfriCOG) through its Investigative Journalism Programme. The views expressed in this article are not necessarily endorsed by AfriCOG.

Link to the story in The Nairobi Monthly Law website
At the centre of the questionable deal were three land-buying companies: Uungani Settlement Scheme self-help group, Jumbo Community Self-Help Group, and Mulolongo Brothers Association (Company). Together, the groups “owned” 1,200 hectares contiguous, adjacent to JKIA.

Capital FM News, July 29, 2012 – IEBC told to cancel controversial tender

NAIROBI, Kenya, Jul 29 – Pressure mounted on Sunday for the Independent Electoral and Boundaries Commission (IEBC) to cancel the controversial Biometric Voter Registration (BVR) system tender. Narc Kenya Chairperson Martha Karua called for fresh tendering process so that Kenyans can follow it openly.

Karua who is also the Gichugu Member of Parliament said if the wrangles in the tendering process continue, they might compromise the integrity of the commission and the whole elections process.

“The only way to make every single Kenyan to follow is to put the whole process online, from evaluation, the technical issues which are coming up and the reasons why they have given the tender to company A and not Company B,” Karua said after attending a church service at ACK Church in Kahawa Sukari.

She added that there is need for IEBC to act as an independent body and avoid any external manipulation at all cost.

“We should be able to follow and see if there is any manipulation, because what is happening is that power brokers on both sides of the government are trying to manipulate the tender, for their benefit and not for the benefit of Kenyans,”Karua added.

The delay in the tendering process has been occasioned by a standoff at the IEBC, where vested interests in the lucrative deal sparked infighting.

This is after a former tender committee which later resigned gave the tender to a company which quoted a higher figure than IEBC’s Sh3.9 billion budget.

Separately, Civil Society Organizations under the banner of Kenyans for Peace with Truth and Justice (KPTJ) also called for the cancellation of the tender terming it as ‘flawed’.

The group said on Sunday that the current tender process failed to inspire public confidence and that new process must be initiated noting that was also the advice of the Public procurement Oversight Authority.

Africa Centre for Open Governance Executive Director Gladwell Otieno said the tendering process had raised many questions which needed to be addressed.

“The entire process has been somewhat murky. We have heard the reports of the Indian company which the Ministry of Foreign Affairs alleged was blacklisted in India. What it points to is that large scale procurement in Kenya continues to be a playground for people who are looking to make a quick buck and we are saying elections are not a place for people to be trying to make a quick buck,” she stated.

She said it was important for the IEBC to have maximum disclosure in all its processes as a way of keeping the public informed and engaged.

“We think that the IEBC in the past has been quite open and reached out but around this process there has not been the level of information we expect as Kenyans since these are our resources and our information which we have a right to because its about our future as a nation. Everything must be done to reassure Kenyans that everything is done in an above board manner and in a transparent and open manner,” Otieno opined.

The row over the purchase of the 9,750 Biometric Voter Registration kits has sent fresh fears of delays in the electoral process, with the IEBC bosses admitting registration of voters, which was to take off in mid-August will now be pushed to early September due to the imminent delay in acquisition of the kit.

IEBC plans to register 18 million voters electronically.

Daily Nation, July 29, 2012 – Fresh blow to IEBC in Sh 3.9bn kit scandal

None of the four companies listed as the most qualified in the Sh3.9 billion Biometric Voter Registration (BVR) tender met the standards set by the electoral commission for the supply of 9,700 voter registration kits.

A confidential evaluation report by the Independent Electoral and Boundaries Commission (IEBC) seen by the Nation showed that an evaluation team had expressed reservations about some of the vendors and the quality of their goods.

Four companies — 4G Identity Solutions, Symphony, Face Technology and On Track Innovations — had emerged as the top contenders for the tender.

On Sunday, IEBC chairman Ahmed Issack Hassan said a due diligence report on Symphony is expected on Monday next week.

Mr Hassan spoke to the Nation by phone from London.

Under the BVR system, sophisticated scanners are used to take facial images and fingerprints of the voter, which are stored in a central computer. On voting day, the machine identifies you by comparing your unique features with the ones earlier stored.

The system makes rigging of elections difficult by eliminating impersonation and multiple voting.

The first confidential evaluation shows how 18 companies were disqualified at the preliminary level for being non-responsive, while eight others that qualified for evaluation were eliminated allegedly on merit for reasons determined by the evaluation team.

The evaluation committee, chaired by Ms Decima M’mayi, indicated that the picture quality features in the proposal presented by Symphony were not good enough.

“The fingerprint quality check was inadequate, the webcam (special digital camera) did not meet the flexible and independent mount standard required as per tender document,” the report further states.

Ms Mmayi’s team further ruled that apart from being inexperienced in the area of BVR, Symphony failed to demonstrate where power for its machines would come from.
Identifying fingerprints

Symphony, however, scored highly on the machines for identifying fingerprints, with the report noting that their demonstration was convincing and the strongest.

The committee also had doubts about the quality of the webcam provided by 4G Identities, arguing that it was below the standard required.

The company was also fighting to clear itself of allegations that it had been blacklisted in India. Neither did it have wide experience in BVR.

“4G identity solutions did not come out strongly in demonstrating the capacity to provide field support,” states the report.

Only Face Technologies from South Africa, ranked fourth in the report, is commended for its experience in BVR, but like the others, its camera was found to be sub-standard and its proposal for power especially in areas without electricity was also questioned.

“Face Technologies were non-committal on the solar solution that they are to provide which is a high risk to the commission,” warned the team.

The evaluation team also sunk the chances of On Track Innovations from Israel winning the tender, questioning their quotation of Sh8 billion and a BVR kit that was not properly integrated.

The company also failed the weight test, proposing kits weighing 17kg against the required 15kg.

Two weeks ago, the commission settled for Symphony and ordered another evaluation to establish its ability to supply the kits. The decision drew protests from the other bidders, amid claims of bribery.

Some of the companies knocked out at the evaluation stage were Dan Office IT, which quoted Sh3.6 billion, Lithotech (Sh3.4 billion), SGS Societe Generale De Surveillance S.A. (Sh3.8 billion), Haier Electrical Appliances Corporation (Sh3.4 billion) and Muhibauer High International (Sh5.6 billion).

Meanwhile, civil society groups have asked the IEBC to tender for the voter kits afresh.

The executive director of the African Centre for Open governance, Ms Gladwel Otieno, said Kenyans would lose faith in the IEBC if it did not act on the anomalies raised.

Link to the story

The Standard, July 30, 2012 – Halt tender process, civil society tells IEBC

Civil society leaders want Independent Electoral and Boundaries Commission (IEBC) to make public all documents related to ongoing row over biometric voter registration system

Speaking at a joint press conference in Nairobi, the leaders called on IEBC to immediately release reports of tender and evaluation committees as well as all correspondences related to procurement process.

“IEBC should adopt a system of maximum disclosure to remove any doubts over the integrity of the process. We will wait for them to release the information. If they don’t, we will go to court to compel them to do so,” said Transparency International executive director Samuel Kimeu

He added: “We believe that IEBC will be reasonable enough to realise that Kenyans have a constitutional right to access that information. The current tender process does not inspire confidence that it was done above board and in public interest.”

Executive Director of Africa Centre for Open Governance Gladwell Otieno demanded that the former IEBC tender committee that resigned after the row first erupted should make full disclosures of why they resigned

“At such a critical stage of the process, silence on this, by the former committee members does not give confidence about the integrity of the process,” she said yesterday.

During referendum

The leaders called on IEBC to cancel the tender altogether and pursue an expedited way of procurement preferably through restricted tender bringing together only companies that truly have a track record in executing that job.

They said that some of the companies that participated in the tender have no track record of having implemented such a system and seem to have hastily assembled themselves to win the tender.

“If a fresh tender is impossible, IEBC may configure and immediately deploy the electronic registration kits used during referendum. It is better to take slightly longer in registration than delaying the entire exercise,” said Executive Director of Muslims for Human Rights Alamin Kimathi.

Otieno wondered whether IEBC price was too low to attract competent and experienced biometric system solution providers since only two of the shortlisted companies quoted within IEBC’s budget.

Meanwhile, Immigration minister Otieno Kajwang criticised biometric voter registration and termed it a waste of national resources. Addressing the Press in Homa Bay town at the weekend, Kajwang told IEBC chair Issack Hassan to withdraw the programme since it is unnecessarily expensive.

Business Daily, June 25, 2012 – Pressure on Kibaki to reject polls Bill

Civil society organisations have petitioned President Kibaki not to assent to sections of the Statute Law (Miscellaneous Amendment) Bill, which legalise party hopping and nomination of presidential election losers to Parliament.

Over 70 lobby groups, under the umbrella of the Kenyans for Peace, Truth and Justice (KPTJ), presented the memorandum to President Kibaki and Parliament, claiming that the changes made to Elections and Political Parties Acts were “unconstitutional”.

The groups also described as discriminatory the requirement that parliamentary aspirants must have a minimum qualification of a degree to contest elections.

“We are making this request as it is our strong opinion that the Bill in its current form contains a number of unconstitutional provisions,” read the memorandum to the President that was received at Harambee House by Jonam Kinama, the deputy secretary in the office of the Secretary to the Cabinet.

The activists demanded that the Bill be referred back to Parliament with an advisory that MPs make the necessary amendments to ensure that the legislation is compliant with the Constitution.

The groups, led by former Committee of Experts vice chairperson Atsango Chesoni, said they would seek the Bill’s nullification if their petition was not granted.

They are also opposed to proposals that public officers intending to contest elective seats remain in office up to five months before the election date, down from the seven prescribed in the Constitution.

“These seats (nominated) are intended for persons from historically marginalised groups such as persons with disabilities. Persons who have failed to be elected do not constitute a historically marginalised group,” KPTJ said in its objection to allowing presidential election losers nomination to Parliament.

They also asked Speaker Kenneth Marende to restrain the House from debating proposals that have the potential of breaching or undermining the Constitution.

Last week, Transport minister Amos Kimunya moved a surprise amendment to the requirement in the Elections Act that barred non-degree holders from being elected to Parliament.

Mr Kimunya’s amendment nullified an earlier amendment by Bura MP Nuh Nassir that wanted the education requirement of an MP to be post secondary examination certificates.

The passage of the amendment technically barred over 80 MPs from contesting the next general election. Some of the MPs without degrees have already signed a petition to be sent to Mr Kibaki urging him to decline to assent to the Bill.

The lobby groups said the net effect of the amendments would be to negate the constitutional principals upon which the Acts were passed.
“We are aware that the current Parliament is on its last days before the next general election.

The amendments are being made with a measure of bias and self-interest,” said Harun Ndubi, a lawyer.

The lobbyists said majority of Kenyans agreed by voting for the Constitution that the vetting of judges and magistrates be undertaken to address the issues surrounding integrity in the Judiciary.
Attorney-General Githu Muigai, through the Bill, placed the onus of vetting the judicial officers on the Judicial Service Commissions (JSC) instead of on the then Vetting of Judges and Magistrates Board then chaired by Sharad Rao. The term of the board expired in May.

“We oppose the amendment to the Judges and Magistrates Act that seek to transfer the vetting of judicial officers to the commission. This goes against the principles of independent vetting of the Judiciary as envisioned in the Constitution,” they said.

The groups invited the President to exerciser the powers bestowed on him by Section 115 (1) (b) of the Constitution to refer the Bill back to Parliament for reconsideration on the basis that it contains various unconstitutional provisions.

emutai@ke.nationmedia.com

Link to the story on the Business Daily
Over 70 lobby groups, under the umbrella of the Kenyans for Peace, Truth and Justice (KPTJ), presented the memorandum to President Mwai Kibaki and Parliament, claiming that the changes made to Elections and Political Parties Acts were “unconstitutional”

Daily Nation, May 18 2012 – Why Kenyan election is world’s most expensive

Elections in Kenya are the most expensive in the world thanks to a high voter registration cost, administrative inefficiencies and outright theft of funds.

Estimates for the upcoming election presented by the Independent Electoral and Boundaries Commission (IEBC) placing the cost at Sh36 billion translates to a cost per registered voter of Sh2,000 ($25), higher than any other on record.

The IEBC, which initially sought Sh41.5 billion, has been pressing its case for the reduced funding all week before the Parliamentary Committee on Justice and Legal Affairs.

Treasury officials have made their case for Sh17.5 billion, terming the IEBC request excessive.

A commission formed to look into the conduct of the disputed 2007 elections reported that the Sh19.4 billion the defunct Electoral Commission of Kenya spent between the 2005/2006 financial year to the 2007/2008 period was higher than those of “very special cases of post-conflict countries.”

The Independent Review Commission, chaired by former South African judge Johan Kriegler, placed the cost of the election per registered voter at $20.4 (or $29 per cast ballot).

Low electoral costs stand at between $1 and $3, according to the Kriegler report and are recorded for countries with longer electoral experience like the United States and most Western European countries.

Others are Chile Sh103 ($1.2), Costa Rica Sh154 ($ 1.8) and Brazil Sh197 ($2.3) in Latin America and Sh60 ($0.7) in Ghana.

While giving the estimates to parliamentary Committee on Justice and Legal Affairs, IEBC chair Issack Hassan appealed to MPs not to scale down their request any further, saying it would hamper the credibility of the next elections.

Mr Hassan told the committee that Sh4 billion would go into voter registration while Sh2 billion would be used to buy a poll book to ensure a voter did not vote twice.

The commission targets to register 18 million voters out of whom 15 million are expected to turn up on Election Day.

Another Sh1.2 billion will be used to buy new vehicles to access “far flung, rugged and large constituencies.”

Responding to questions by the Saturday Nation on Kenya’s extraordinarily high cost of elections, IEBC chief executive officer James Oswago traced the genesis to 1992 when Kenyans demanded an independent electoral commission following the return to multipartyism.

Assert its independence

“Between 1964 and 1991 elections were a function of the government and district commissioners were returning officers. But with the return of multipartyism, there was a move by the polls body to assert its independence so the opposition could embrace it,” Mr Oswago said.

He explained that the commission could not implement the Kriegler recommendations because the new Constitution ran counter to the report.

“The new Constitution that came into place in 2010 demanded that we make voter registration a continuous process. Even though Justice Kriegler recommended a reduction of costs, the new Constitution created 80 new constituencies which forced us to register voters afresh despite having spent Sh5 billion in the 2010 voter registration which brought on board 12.4 million electors,” he said from Mombasa where IEBC officials were attending a three-day seminar on financial management.

Mr Oswago defended the retention of permanent staff in the field offices saying in the past temporary staff had disappeared during voting and the commission could not punish them.

The commission is in the process of recruiting 290 constituency coordinating officers.

The Kriegler report points out continuous registration as a key conduit through which money goes to waste.

“Although the ECK has established a network of 71 district offices (as per 2009 accounts), only some two per cent of voters opt to register there. The remaining 98 per cent do so at the annual registration drives.

“While it is true that the ECK registered 1,767,000 voters during the two registration drives in 2007, the cost per registered voter was Sh1,233 (around $18), which is extraordinarily high,” the report concluded.

It said the cost per registered voter of the 1,078,000 voters registered in the registration drives or through continuous registration in 2003 through 2006 was much higher, probably by as much as 50 per cent.

An April 2009 report of the Controller and Auditor-General questions how the defunct ECK spent Sh1.93 billion of the Sh15.8 billion it was given between 1991 and 2007.

Another analysis by the Africa Centre for Open Governance indicates that ECK commissioners were irregularly paid Sh219 million.

The report shows that the commissioners were, for instance, paid thousands of shillings every month in sitting allowances even when they did not attend meetings.

“The officer explained that since ECK meetings had no quorum, a sitting can be by one member, two members or the whole commission; which justifies the payment of sitting allowances for the 365 days of the year,” read the report.

Irregular payments

The auditors found numerous cases where allowances were paid when the authenticity of the claims could not be confirmed.

By 1996, the commissioners had received Sh29.7 million in undeserved sitting and subsistence allowances while irregular payments of accommodation expenses totalled Sh33.79 million from 1993 to 1997.

The Africog report also faults the procurement of spares, fuel and stores.

It notes that orders for 334 polling booths worth Sh2.04 million were placed in January 1998, while elections had taken place in December 1997.

A November 2008 Press report also indicated that ECK paid Sh110 million for T-shirts that were never used during the 2007 election.

About IJ

The AfriCOG Investigative Journalism Fellowship is a competitive fellowship aimed at supporting talented journalists to investigate topical public interest cases that lie within AfriCOG’s anti-corruption and good governance mandate.

The Fellowship seeks to give practicing journalists the requisite logistical and financial support to investigate, follow-up and publish a compelling story of public interest in the area of governance and anti-corruption reform.

Context of the Fellowship

When compared to previous political regimes, the overall assessment of media performance since 2002 is cautiously positive, despite significant setbacks during the
period. There are more media outlets (particularly in broadcasting) following the liberalisation of the airwaves in the late 1990s, and the media’s voice has been essential in drawing attention to corruption and abuse of power. However, there is pronounced concentration of ownership, with negative consequences for diversity of opinions. During the post election crisis, the role of the media also came under critical scrutiny.

On the legal front, while the constitution provides for freedom of expression, access to information is limited by a string of exceptions and laws such as the Official Secrets Act. Some provisions of the recent Kenya Communications Amendment Act (2008) fall in line with this repressive trend.

Internal Challenges

The impact of the highlighted legal and institutional barriers is deepened by problems inherent to media houses, which face challenges relating to skills development and internal governance. These tend to inhibit them from effectively playing their public information, awareness and watchdog roles. There is insufficient investment in training by media houses as well as limited capacity for investigative journalism. Stories that expose corruption and poor governance require detailed analysis and sustained commitment. Yet the headline rush and reporting culture of media houses globally tends to erode editorial interest in lengthy reports and single-issue investigations. The result is that drawn-out ethical issues and anti-corruption challenges are rarely tackled effectively.

The Fellowship Project

By providing short fellowships to a selection of journalists, the Investigative Journalism Project seeks to enhance expertise in investigative journalism and generate a body of incisive investigative reports on key governance, anti-corruption and public interest issues. This is in keeping with AfriCOG’s vision of promoting permanent civic vigilance, and a strategic approach that seeks to address the structural causes of governance and anti-corruption challenges.

By supporting investigative journalism, AfriCOG will help advance the struggle for greater access to information by exposing corruption and bad governance, thus driving
home the need for freedom of information to prevent or mitigate the abuse of power.

Eligibility: The Fellowship is open to professional journalists, qualified to work in Kenya, with at least three years experience in print or broadcast journalism on a full time/freelance basis.
Selection: A call for applications will be published in the local media after which submitted entries will be vetted by a panel of experts. The panel will evaluate entries based on the journalist’s capacity to undertake the investigation, and the potential for high positive impact and public benefit.
Duration of Fellowships: It is envisaged that up to five fellowships of varying length will be awarded in the pilot phase of the Investigative Journalism Project. The length of the fellowships will be determined by the complexity of issues to be investigated.

FAIR Website – February 7, 2012 – FAIR member selected for AfriCOG Investigative Journalism Fellowship 2012

The Africa Centre for Open Governance (AfriCOG) congratulates Anthony Nyandiek, Production Manager at Safari Africa Radio; Jevans Miyungu, Business Writer at Standard Media Group aand Ken Opala, Correspondent at Nation Media Group for being selected to participate in the second phase of its Investigative Journalism Fellowship Programme. The three fellows have chosen to conduct their research topics on specific areas that fall under the themes of regulatory failures and misuse of public resources.

In October and November 2011, calls for applications were advertised in the local press, the AfriCOG website, media listserv’s, notice boards and selected social media sites. Interested applicants were asked to submit a fellowship application form, curriculum vitae and references. Out of this process, 125 applications were submitted by local and internationally based journalists, and a rigorous vetting process conducted by a selection committee membership whose expertise spans Kenya’s media/communication industry.

The fellowship award includes financial and technical support. The selected fellows will work closely with their respective line editors and the fellowship advisor, an experienced journalist, who will guide them in conceptualizing, developing and implementing their investigative concepts and work. Peer-review workshops will also be conducted to evaluate the progress of each fellow’s work. Additionally, a training seminar will be hosted through partnership with a well-established and respected media development company in Nairobi.

The fellows have chosen to conduct their research topics on specific areas that fall under the themes of regulatory failures and misuse of public resources.

Anthony Nyandiek’s fellowship topic will shed light on the accountability processes at the Mombasa Port and illustrate how this is affecting the country economically and socially. Anthony will produce a two-part radio talk show interviewing selected principal actors and stakeholders in the Port business which are planned to be aired frequently by Safari Africa Radio. Anthony will also write an Investigative article that will be published by the radio company on their official website.

Jevans Miyungu’s fellowship topic will take a critical look at tax leakages through tax incentives given to the horticulture sector. His fellowship report will make inquiries into this sectors’ impact on our economy and seek to identify how the Government of Kenya can address the challenges identified. As a Fellow, Jevans will produce three articles that will each address a number of issues within the horticulture sector in Kenya. These articles are intended to be published in the Standard Newspaper.

Ken Opala’s fellowship topic will focus on how Kenya continues to lose billions of shillings through abuse of office by Kenya’s senior public officials. His investigative article will look into specific ways in which public officials abuse their positions for their private benefit and explore some of the impacts of this on the country. Further, Ken hopes to point out and analyse a number of ways that could counter these problems and promise success. This article will hopefully be published In the Nation Newspaper.

At the end of the fellowship, each fellow will be expected to deliver a well-researched Investigative report that is of public interest and which falls under AfriCOG’s good governance and anti-corruption reform mandate.

By supporting investigative journalism, AfriCOG stands firm in its endeavor to advance the struggle for greater access to information by exposing corruption and bad governance, and consequently driving home the need for freedom of information to prevent or mitigate the abuse of power.

A report published under the first phase of AfriCOG’s Investigative Journalism Programme can be found here. For more information, please contact: The Investigative Journalism Fellowship Programme, Email: admin@africog.org

Link to the story on the FAIR website

Three journalists selected to participate in the second phase of AfriCOG’s Investigative Journalism Fellowship Programme.

The Africa Centre for Open Governance (AfriCOG) congratulates Anthony Nyandiek, Production Manager at Safari Africa Radio; Jevans Miyungu, Business Writer at Standard Media Group and Ken Opala, Correspondent at Nation Media Group for being selected to participate in the second phase of its Investigative Journalism Fellowship Programme.

In October and November 2011, calls for applications were advertised in the local press, the AfriCOG website, media listserv’s, notice boards and selected social media sites. Interested applicants were asked to submit a fellowship application form, curriculum vitae and references. Out of this process, 125 applications were submitted by local and internationally based journalists, and a rigorous vetting process conducted by a selection committee membership whose expertise spans Kenya’s media/communication industry.

The fellowship award includes financial and technical support. The selected fellows will work closely with their respective line editors and the fellowship advisor, an experienced journalist, who will guide them in conceptualizing, developing and implementing their investigative concepts and work. Peer-review workshops will also be conducted to evaluate the progress of each fellow’s work. Additionally, a training seminar will be hosted through partnership with a well-established and respected media development company in Nairobi.

The fellows have chosen to conduct their research topics on specific areas that fall under the themes of regulatory failures and misuse of public resources.

Anthony Nyandiek’s fellowship topic will shed light on the accountability processes at the Mombasa Port and illustrate how this is affecting the country economically and socially. Anthony will produce a two-part radio talk show interviewing selected principal actors and stakeholders in the Port business which are planned to be aired frequently by Safari Africa Radio. Anthony will also write an Investigative article that will be published by the radio company on their official website.

Jevans Miyungu’s fellowship topic will take a critical look at tax leakages through tax incentives given to the horticulture sector. His fellowship report will make inquiries into this sectors’ impact on our economy and seek to identify how the Government of Kenya can address the challenges identified. As a Fellow, Jevans will produce three articles that will each address a number of issues within the horticulture sector in Kenya. These articles are intended to be published in the Standard Newspaper.

Ken Opala’s fellowship topic will focus on how Kenya continues to lose billions of shillings through abuse of office by Kenya’s senior public officials. His investigative article will look into specific ways in which public officials abuse their positions for their private benefit and explore some of the impacts of this on the country. Further, Ken hopes to point out and analyse a number of ways that could counter these problems and promise success. This article will hopefully be published In the Nation Newspaper.

At the end of the fellowship, each fellow will be expected to deliver a well-researched Investigative report that is of public interest and which falls under AfriCOG’s good governance and anti-corruption reform mandate.

By supporting investigative journalism, AfriCOG stands firm in its endeavor to advance the struggle for greater access to information by exposing corruption and bad governance, and consequently driving home the need for freedom of information to prevent or mitigate the abuse of power.

A report published under the first phase of AfriCOG’s Investigative Journalism Programme can be found here

For more information, please contact:

The Investigative Journalism Fellowship Programme

Email: admin@africog.org

Tel: +254 20 4443707 or +254 737463166

The Standard – January 20, 2012 – Kenyans urged to trust ICC process

Kenyans have been urged to trust the International Criminal Court process and let justice run its course.

The civil society appealed to the nation to remain calm and peaceful ahead of the ICC ruling on confirmation or dropping of charges on Monday.

“We urge the country to remember that the ICC process is really for the victims and despite all the protestation by politicians to the contrary, the ICC process is judicial and not political,” said Kenya Commission on Human Rights Commission Director Atsango Chesoni.

The group under Kenyans for Peace with Truth and Justice (KPTJ) further asked the Government to cooperate with the ICC regardless of the outcome of the court ruling.

“We note that the court’s decision, whatever the outcome, will be an important step forward in ensuring justice for victims of the crimes that occurred during the 2007 and 2008 post-election violence.

Accept verdict

The civil society reaffirmed that they will accept the verdict of the court whether the charges are confirmed or not.

“We point out that all parties will be free to appeal the decision if they so wish and that is their right, which we support.

In addition the chamber is free to call for additional evidence on any issue,” said Africog’s Director Gladwell Otieno in statement on behalf of the group Friday at a Nairobi hotel.

They stressed that the ICC process is meant to give reprieve to victims of PEV saying it was unfortunate that public debate continues

to focus on the fates of the main suspects rather than the victims.

KPTJ also demanded that should the charges be confirmed, President Kibaki and Prime Minister Raila Odinga should suspend from office Finance Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Post Master General Mohammed Ali in line with Chapter Six of Constitution that deals with character and integrity.

Vacate office

“The accused public officials should also vacate office on their volition pursuant to the statements they made that they will cooperate with the ICC in the event of confirmation of charges,” said Chesoni.

They said it was unacceptable that suspects of crimes against humanity have continued to occupy senior public offices and that some even purport to stand as candidates to lead this nation.

The lobby group further asked the two principals to set up a local mechanism to try other perpetrators of violence.

“Even if all the charges were to be confirmed against all the suspects, this would by no means release the Government from its duty to bring justice, restitution and solace for victims of violence,” Chesoni said.

Read Article on the Standard Website

Nairobi Star/All Africa Global Media via COMTEX, Oct 31, 2011 – How the Rot Came About

The brief history of Kenya football governance since Independence Kenya goes to a historic national football election this morning, seeking to put to rest the wrangles that have seen the game deteriorate over the past decade. Whoever wins joins a long list of people who have run the game since 1963. There have been highs and lows over the years.

Kenya’s post colonial football governance started with the 1963 election of Isaac Lugonzo then Nairobi Mayor. John Kasyoka took over in the mid-60s to 1970 as an elected chairman. He was followed by Martin Shikuku in 1970. However, Shikuku’s term was brought to an abrupt end in 1972 when the then Butere MP’s football association was disbanded by the government on allegations of corruption. Shikuku’s ouster ushered in a caretaker committee headed by Bill Martin who was Nairobi Provincial Commissioner.

An election was called the same year and Williams Humphreys Ngaah a Kenya Railways officer was duly elected for the remainder of the term.

Ngaah lost the subsequent election in 1974 to Dan Owino , a former Kenya diplomat under circumstances which saw Kenneth Matiba the chairman of Kenya Breweries FC (now Tusker FC) locked out. Matiba walked out of the Kenya Football Association to form the rival Kenya Football Federation which quickly gained favour with clubs and lasted two terms to 1984.

Matiba’s popularity saw him join Parliament as MP for Kiharu (1983-90; 92-97), was cabinet minister between 1985-88 and Presidential candidate in 1992.

Clement Gachanja, MP for Dagoretti was elected KFF chairman for the 1984-88 term before Job Omino was elected. Omino’s committee was disbanded by government and a caretaker committee was set up with Mathews Adams Karauri as chairman

In the subsequent election in 1990, Job Omino bounced back and was in office until 1996. Peter Kenneth took over from Omino in the 1996-2000 team when Maina Kariuki took over as Kenya football helmsman in 2001. His term was also cut short when, on grounds, of corruption, the government disbanded the office in 2004. However, the international football federation Fifa intervened and a joint Fifa and Kenya government committee headed by Kenya legendary athlete Kipchoge Keino was appointed to lay the groundwork for elections in 2004 under a blended constitution.
This saw Alfred Sambu take office. But he was thrown out by a rebel group which had powerful support from the Ministry of sport in 2007. So the crucial moment appears to have been in the year 2000 according to AfriCOG an NGO that traced the beginning of the Kenya tooball crisis.

Soon after the KFF headed by Maina Kariuki (chairman), Hussein Swaleh (secretary general) and Mohammed Hatimy (treasurer) was elected.

The then Sports Minister Francis Nyenze who, among many reasons, cited corruption and mismanagement of resources as reason for his decision. Nyenze appointed a caretaker committee but his decision was reversed by the High Court. A year later, 11 Premiership clubs broke ranks with KFF to form the Kenya Premier Football Group (KPFG). Kenyan Premier League Ltd (KPL) was formed as a private company the same year.

In 2004, after the expiry of Kariuki and his offices’ tenure of office, the Mombasa High Court ruled against their stay prompting the sports minister to form a Stakeholders’ Transitional Committee (STC).

The wrangles then moved a notch higher leading to the collapse of the KFF league. KPFG later formed a Harambee Stars Management Board to prepare the team ahead of the Africa Cup of Nations and 2010 World Cup qualifiers. However, the ambitions were short-lived as Fifa suspended Kenya’s membership over alleged government interference.

Fifa and the government later entered into negotiations which establishment the KFF Normalisation Committee headed by Kenya athletics legend Kipchoge Keino, mandated to develop a new KFF constitution in time for elections in December 2004, and unify the KFF and KPFG leagues. A KFF Special General Meeting elected Alfred Sambu as chairman and Hatimy as senior vice-chairman.

In August 2005, a KFF SGM replaced Sambu with Hatimy, who was later banned from football management by Fifa. Fifa also gave KFF three months to put their house in order.

Sambu was reinstated in 2006 with Moni Wekesa becoming his secretary general. Kenya and KFF were later banned from Fifa football activities with Hatimy dramatically replacing Sambu, again. A year later, Fifa named Hatimy as the acting national chairman pending elections in May 2007.

The polls saw two parallel SGMs held in Nairobi and Mombasa by former secretary general Sam Nyamweya and Hatimy respectively where Nyamweya was appointed chairman by the government recognized KFF.

In May 2008, KFF obtained a court injunction barring Hatimy from interfering with their affairs; a move that irked Fifa, whose statutes do not allow the involvement of ordinary courts in football matters. Hatimy later registered Football Kenya Limited (FKL) with the Registrar of Companies, with the blessings of Fifa.

Fifa refused to start arbitration procedure requested for by KFF and subsequently, the Court of Appeal (after an appeal by KFF) decided in Hatimy’s favour.

However, the court directed the status quo remain until elections were held later in December. In February 2009 Fifa disowned KFF. The then sports minister Hellen Sambili appointed a committee led by Bidco CEO Vimal Shah to reconcile the two factions. The committee failed in its mandate.

In January 2010 the Court of Arbitration for Sport (CAS) acting on a case filed by Nyamweya recognised FKL as opposed to KFF and called on the country to hold fresh elections to end the wrangles that have seen the country’s football sink to worrying depths.

Copyright Nairobi Star. Distributed by AllAfrica Global Media (allAfrica.com).

Daily Nation, October 23 2011 – Dadaab refugee camp poses a huge threat to Kenya’s national security

People who live and work in refugee camps will be hardly surprised by the fact that militants may have been involved in the abduction of the two Spanish aid workers from the Dadaab refugee camp this month.

Infiltration of refugee camps by militia is nothing new. The Goma refugee camp in eastern DRC was notorious for sheltering the Interahamwe fleeing the Rwandan Patriotic Front after it invaded Rwanda in 1994.

As Dutch journalist Linda Polman says in her book, The Crisis Caravan, refugee camps are often used by militia to recuperate and regroup.

In Goma, so-called refugees regrouped to organise their next offensive. In return, they got free food, medical care and shelter from the United Nations.

Dadaab presents a huge threat to Kenyan security. Like Goma, the refugee camp is probably crawling with militia. What better way for al Shabaab to penetrate Kenya’s borders than to become refugees within our borders?

A 2008 United Nations Monitoring Group on Somalia report noted that “members of Shabaab and Hizbul Islam travel with relative freedom to and from Nairobi, where they raise funds, engage in recruitment, and obtain treatment for wounded fighters.”

If Kenya is to win the war against the militias, it must remove al Shabaab from the camp. And it should be looking for al Shabaab agents living in our midst undetected in various towns.

Dadaab is also the site of various nefarious and illegal activities that directly impact Kenya. According to the recently-published report, Termites at Work, by the International Peace Institute, some of the arms trafficked from Somalia are first “stored” in the Dadaab refugee camp while traffickers plan their next move.

From Dadaab, the arms end up via neighbouring Garissa in Nairobi’s Eastleigh estate or in the Mukuru Kayaba slums.

“Arms traffickers have a sophisticated smuggling system that links Somalia with the refugee camp and with Nairobi,” says the report, which was launched in Nairobi recently.

The Dadaab camp is also the site of human and other forms of trafficking, as is the southern Somali port of Kismayu, a stronghold of al Shabaab.

Corrupt aid workers and government officials could inadvertently be easing the movement of al Shabaab within Kenya.

The IPI report says arms smugglers bribe their way through police checkpoints, and in some cases, UN employees sell migration slots for genuine refugees to people seeking to migrate to other countries.

Officials from the UN’s refugee agency, UNHCR, say that the responsibility of screening refugees arriving at Dadaab lies with the Kenya Government. But even if this is so, can the UNHCR explain why all these illegal activities are occurring under its watch and in a camp it manages?

Moreover, there is the question of identifying al Shabaab. Do police at the Kenya-Somali border have names, faces and identities of known members of the terrorist group? What distinguishes a terrorist from a genuine refugee?

All al Qaeda terrorists who have so far been captured around the world look like “normal” young men. Many do not even look particularly dangerous. In fact, most have perfected the art of blending into the community in which they reside. In Dadaab, they have blended with the refugees.

What’s worse, there is a high possibility that many of these so-called refugees have already left the camp and have infiltrated Kenyan cities and towns.

There is no reason why a refugee camp should exist for 20 years. A refugee camp is supposed to be a temporary measure; it is not supposed to become a permanent settlement, as Dadaab has become.

Originally designed for 90,000 people, Dadaab currently hosts more than half a million refugees, making it the most populous such camp in the world.

Over the last 20 years, since the civil war in Somalia, the camp has grown into a self-contained township complete with schools, a hospital, shops, bars, butcheries and even “hotels”. In other words, it has started to look like a small town.

In my opinion, the Kenya Government and the UN should work towards scaling down operations in Dadaab and ultimately closing the camp altogether.

This may contravene Kenya’s international obligations, but the facts cited above are disturbing enough to warrant such an action.

rasna.warah@gmail.com

Link to the story

Daily Nation, October 5 2011 – Kenya region’s top fake goods market: report

Kenya is the biggest market for counterfeit goods and contraband in East Africa, says a new report.

The counterfeit industry, according to Termites at Work: A report on Transnational Organised Crime and State Erosion in Kenya, is worth Sh70 billion and rivals key foreign exchange earners tourism, tea and coffee.

The industry thrives because Kenya is the biggest economy in the region and goods move fast.

The report, launched in Nairobi this week at a policy forum co-hosted by the International Peace Institute and Africa Centre for Open Governance, says China and India are the key sources of counterfeit goods in the East African region.

“The Kenya Association of Manufacturers — whose members are directly affected by trade in counterfeit goods — has estimated that manufacturers incur an annual loss of Sh30 billion,” the report says.

Corruption, weak administrative as well as legal regimes and disparate tax systems (excise and import duties) in the East African Community contribute significantly to the flow of contraband.

“Counterfeit goods available in Kenya are either manufactured in backstreet factories or simply smuggled from Asia and the Middle East…

“Imports are often earmarked as transit goods to destinations in Uganda, Democratic Republic of Congo, Rwanda, Burundi or Tanzania but are diverted to destinations within Kenya…

“Locally produced, inferior counterfeit goods are exported but then smuggled back to avoid paying taxes,” the report says.

The Kenya National Chamber of Commerce and Industry says smugglers target fast moving and highly-profitable goods like sugar, vehicles, electronics, pharmaceuticals, cigarettes, batteries, pens and cosmetics.

“At the border, the import documents are stamped to indicate goods have crossed the border, but in fact the goods are smuggled back into the country,” it says.

Public discussion about the massive illicit economy is muted because of the power and patronage wielded by the people involved in the business in East Africa, some highly placed in government.

The report says President Kibaki has encouraged open debate on the problem: “Illicit trade is a big problem in all the five member states of the East African Community; therefore we cannot pretend that we are not aware of this problem, it is now upon us to find a solution to it,” it quotes him saying.

The long, porous borders that Kenya shares with Somalia, Uganda and Tanzania (across Lake Victoria) provide low-risk opportunities for counterfeit smugglers and those engaged in illicit trade.

“Smuggling takes place by sea, across Lake Victoria and through inland exit points,” says the report.
The most frequently used smuggling points in Kenya are the coastal settlements of Vanga, Lunga Lunga, Ghala Island, Kinondo, Gazi, Bodo, Majoreni, Mokowe, Lamu, Takaungu, Kipini, Kiunga, Kiwayu and Mombasa Old Port.

The report also identifies Eldoret International Airport as notorious for the smuggling and trafficking of illicit goods.

“This airport, which has been temporarily closed by Kenyan authorities on two occasions when smuggling activities became too brazen, is a well-known entry point for counterfeit medicines, watches and textile products flown in from the Middle East and involving criminal networks with links to many countries outside Kenya,” it says.

Link to the article

Organized crime on the increase in Kenya

The country loses at least 47 billion shillings annually as a result of trade in counterfeit goods. A report on organized crime also indicates that endemic corruption is biggest hindrance to tackling organized crime. The report titled “Termites at Work:Transnational Organized Crime and State Erosion in Kenya lists drug trafficking, trade in counterfeit goods, trafficking in wildlife products, human trafficking, money laundering and trafficking in small arms as the types of organized crime prevalent in Kenya. The report by the International Peace Institute and the Africa Center for Open Governance calls for institutional and policy change as a start to tackling organized crime

Daily Nation, October 4, 2011 – Foreign drug lords ‘thrive in Kenya’

Foreigners working with senior government officials have established international drug trafficking networks locally, a new report reveals.

The report says they operate through four networks each headed by a Nigerian and a fifth led by a Guinean, which link drug producing countries in Latin America and consumers in Europe.

The report, which also exposes human trafficking, poaching, money laundering as well as gun running activities, is set to be launched on Tuesday.

Fake diplomatic bags

“Kenyans in top positions are seldom involved in specialised drug trafficking work such as overseas procurement. Their contribution is to keep the risk of drug traffickers in Kenya low. This is how networks penetrate State institutions,” it says.

One of the networks headed by a Nigerian procures cocaine from Latin America and smuggles it to the United States and Europe.

The drug lord also sends mules from Nairobi to “Peru, Bolivia and Brazil to source cocaine, which is then smuggled to Kenya via South Africa and Tanzania,” it further says.

And to ensure its operations are not easily detected, the traffickers use fake diplomatic bags and documents.

The report also borrows from previous reports which have blamed the illicit trade on corrupt government officials.

Besides corruption in government, the latest report cites weak laws as key factors that help the syndicates to develop locally.

“What they found in Kenya is what any international organised criminal group would find attractive; a weak criminal justice system in which the public has little trust,” it says.

The report describes Kenyan politicians as people who can be “easily bought,” while senior government officers are portrayed as individuals who “protected each other and enjoyed impunity from prosecution.”
Another Nigerian was identified as the head of the second network that used Namanga border point to bring in cocaine and heroin.

He uses the Jomo Kenyatta International Airport to fly the drugs to Istanbul, Turkey, for distribution to the UK and other European markets.

“At least five of his couriers have been arrested in Tanzania, Seychelles, Turkey and Kenya,” says the report.

The third syndicate, headed by a Nigeria who travels on a Ghanaian passport, supplies Turkey and China, the report says.

Titled Termites at Work, a Report on Transnational Organised Crime and State Erosion in Kenya, the document does not name the drug lords.

It identifies a Guinean as the head of a fourth network who travels on a “stolen Burundian passport.”
“Couriers for this network have been arrested in China, Pakistan and Hong Kong,” it says.
The fifth drug lord, the report says, is also a Nigerian who travels on Ivory Coast, Guinea, Liberia and Sierra Leone passports.

“He focuses on heroin which is smuggled from Pakistan through Uganda to Kenya and then on to Europe. His couriers have been arrested in Hong Kong,” the report says. It also accuses him of tax evasion and money laundering.

With regard to money laundering, the report says such cash ends up with the Somali-based al Shabaab terror group, which has links to al Qaeda.

Daily Nation, October 4, 2011 – Raila: Organised crime funds election campaigns

Prime Minister Raila Odinga has said criminal networks have been funding election campaigns in Kenya.
In particular, he mentioned international drug traffickers, noting that they operate “freely” in the country and used their money to influence politicians and the police.
“Organised crime is financing political activities and criminals are in return being guaranteed protection, tying them directly to the culture of impunity pervading Kenyan politics and business,” said Mr Odinga during the official launch of a report unearthing the state of organised crime in Kenya.
Besides drug trafficking, the report by the International Peace Institute also revealed human trafficking, poaching, gun running, as well as trade in counterfeit imports.

Relief Web, October 4 2011 – Termites at Work: Transnational Organized Crime and State Erosion in Kenya

IPI Launches Report on Transnational Organized Crime in Kenya

Transnational criminal networks are corrupting and undermining state institutions in some countries to such an extent that they pose a threat to the state itself, according to two new reports from the International Peace Institute.

The reports, entitled “Termites at Work: Transnational Organized Crime and State Erosion in Kenya,” were launched in Nairobi on October 4th at a policy forum cohosted by the International Peace Institute (IPI) and the Nairobi-based Africa Centre for Open Governance (AfriCOG).

Speaking at the policy forum, the reports’ author, Peter Gastrow, IPI’s Director of Programs, said, “The threat posed by transnational organized crime is not confined to the harmful effects of the international narcotics trade or human trafficking. For many developing countries and fragile states, powerful transnational criminal networks constitute a direct threat to the state itself–not through open confrontation–but by penetrating state institutions through bribery and corruption and by subverting and undermining them from within. Governments that lack the capacity to counter such penetration, or that acquiesce in it, face the threat of state institutions becoming dysfunctional and criminalized, and of the very foundations of the state being undermined.“

The guest of honor at the launch was the Prime Minister of Kenya, Raila A. Odinga.

“It is my hope that the report being launched today will direct us towards better ways of equipping our people and our institutions to tackle these problems,” the Prime Minister said. “History shows us that the price paid by nations which have flirted with crime is a high one. They have become captive to criminal elements, and have suffered perpetual instability. Ladies and gentlemen, that is a road we do not wish to travel.” (read the Prime Minister’s full remarks)

The IPI study, funded by the German government, examined six categories of transnational organized crime in Kenya.

Peter Gastrow told participants that the results pointed to significant increases in criminal activity with pervasive impacts on government institutions. Even though Kenya was the economic hub of East Africa, with an active civil society, a vibrant media, and significant potential for growth and development, its foundations were under attack. Endemic corruption and powerful criminal networks were “white-anting” state institutions, hollowing them out from the inside. As a result, development was being hampered, governance undermined, public trust in institutions destroyed, and international confidence in Kenya’s future constantly tested.

Also speaking was Dr. George Kegoro, Executive Director of the International Commission of Jurists in Kenya and Ms. Gladwell Otieno, Director of AfriCOG.

The function was attended by about sixty participants representing the media, government, NGOs, international organizations, academia, and Nairobi Embassies.

Both IPI publications conclude with concrete recommendations for policy and action steps at national, regional, and international levels.

Link to the news item on reliefweb.int

Daily Nation, October 4 2011 – Check criminal gangs now infesting Kenya

A report launched in Nairobi on Tuesday paints a worrying picture of the extent to which international criminal networks have infiltrated all organs of government, including the Executive, Judiciary and the Legislature, as well as the police and the provincial administration.

The International peace Institute report entitled ‘‘Termites at Work: Transnational Organised Crime and State Erosion in Kenya’’, was launched by Prime Minister Odinga, who admitted that criminal syndicates had bought their way into the State.

The effect was that dangerous criminals involved in drug trafficking and other serious crimes had secured for themselves immunity from arrest and prosecution, and were also influencing State policy.

This candid admission by the Prime Minister is welcome, as is the report that the government co-operated fully with the investigators. (READ: Raila: Organised crime funds election campaigns)

It is not enough, however, to co-operate in investigations or to admit freely that the State has been infiltrated by criminal elements.

These admissions must be followed by action to ensure Kenya does not come to resemble countries in Eastern Europe, South America and Asia where criminal gangs are in charge of government.

Kenyan authorities have historically been reluctant to act against drugs traffickers and other criminals because officialdom is often beholden to them. We must now change attitude.

We live in a vulnerable region where it should not be difficult to make the very clear link between transnational criminals – drug traffickers, poachers, gun-runners, money launderers, human traffickers and smugglers of counterfeit goods – and the clear and present danger of attacks by terrorists.

It would be criminal dereliction of duty for the authorities to continue turning a blind eye to dangerous criminals that have been given freedom to operate in Kenya.

Link to Story in the Daily Nation

Investigate without peril: How to support investigative journalism in East Africa

Investigative journalism distinguishes itself from regular journalism by its depth and subject matter, often involving crime, political corruption or corporate wrongdoing. It can play an essential role in a country’s governance by keeping corporations and government accountable. However, the political and economic environment in some regions of the world present specific challenges for investigative journalists: countries that score low on governance and transparency present particular risks and underline the need to build investigative journalism capacity. This Brief analyses the obstacles to investigative journalism in the East African region, focusing on Kenya and Uganda, and discusses what can be done to help address these barriers.

Click here to download the brief

Strathmore University Website, August 1, 2011 – When SU hosted football debate

The University on Friday 29th July 2011 hosted in the auditorium a forum attended by four contenders for the post of the Chairman of Kenya Football Association (KFA), the body that will run football in Kenya after the August 13 elections . The aspirants fielded questions from football stakeholders.

The aspirants in attendance were current chairman of KFF Mr Sam Nyamweya, his senior vice-chairman Mr Twaha Mbarak, Mr Hussein Mohammed of Extreme Sports, Gor Mahia Chairman Mr Ambrose Rachier and Ms Elizabeth Shako. The latter wants to head the women affairs section of KFA.

The forum was meant to interrogate the candidate’s policies, their manifestos, and introduce them to the football public they are looking forward to serve. The event was organised in collaboration with Movement for Political Accountability (MOPA), Africa Center for Open Governance (AfriCOG), USAID, Bunge la Mwananchi and Independent Electoral Board (IEB).

The forum was the first of its kind in Kenya. Each candidate was given 10 minutes to explain his agenda and what they think ails local football. They later answered questions from the audience where they were taken to task over their plans.

Among the stakeholders who attended the event included former Kenya internationals Bobby Ogolla, Mickey “T9” Weche, Bob Oyugi, Bobby Ogolla, Josphat “controller” Murila, Dan Shikanda and Joe Kadenge.

Giving the welcoming remarks, Mr Isaac Mwangi, the University’s Sports Administrator said that there is need to streamline football management in the country and the University is ready facilitate the process. He said that is one of the reasons it hosted the event.

In late April, the University hosted a sports governance workshop. The football forum was a follow up to that event, Mr Mwangi said.

In his remarks, the Dean of Students Mr Paul Ochieng’ under whose docket sports fall in the University welcomed the football stakeholders and asked them to be part of history that is will change the direction of football leadership in the country.

After the elections, the two bodies that are fighting to run football in Kenya will be dissolved and KFA will take over.

Link to story

Michezo Afrika Website – Is she the MESSIAH of Kenyan football?

She is the only woman who has braved the heat associated with the gunning for the top post in the management of Kenyan football after announcing her aspiration to vie for the post of chairperson in the forthcoming football elections. Elizabeth Shako is ready to give men a run for their money in what has been traditionally viewed as a “men only affair”. She believes in her capabilities and is ready to offer stiff competition to what she terms as “same old type of soccer leaders” in the race.

Shako who is among the few candidates to have been cleared by IEB and KRA officially launched her manifesto in Mombasa on Thursday in a colorful ceremony attended by key football stakeholders in Mombasa .For chairmanship, She will fight it out with extreme Sports CEO Hussein Mohammed, Gor Mahia’s Chairman Ambrose Rachier, KFF chairman Sam Nyamweya and current FKL chairman Mohammed Hattimy who also comes from Mombasa.

“Am ready for the challenge that will bring a new hope for our people in Kenya. We have suffered autocracy of poor leadership for decades and it is time for a new dawn.” She said

Shako has been in the management and development of soccer for the past ten years as the director of SOLWODI soccer initiative (Solidarity with women in distress) and part of those who have championed for the development and sober leadership in women soccer. Shako is currently the organizing secretary of the national women soccer league initiative and also the director of SOLASA (Solwodi Ladies Sports Association) that brings together over 21 ladies’ soccer teams across the country.

“We have fought the war from the periphery and I believe it is time for me to make the real change we have been yearning for. I have the experience, I have been there and above all soccer is my passion. I will offer accountability and good governance.” She added.

Shako has promised to offer a new leadership that is transparent and accountable to the people of Kenya. She has also vowed to bring in proper planning that has ailed the leadership of the federation and especially the national soccer team Harambee Stars by engaging a solid program to scout and manage the team/players in a professional manner free of tribalism and corruption.

In her manifesto, Shako has highlighted key features that she believes will bring out the potential and the strength of Kenyan soccer as she strives to take the nation back to international radar within the shortest time possible.

-Ensure Kenyans get a new soccer constitution. A constitution that will serve generations with better structures and policies.
-Draw a five years strategic plan that will govern planning and attract partners/sponsors
-To improve the structures of soccer development in all areas including: main national team, women soccer, youth development structures, beach soccer among others.
-Set up modern youth soccer development centers across the country equipped with modern equipment to avoid over dependence on Nairobi.
-Ensure all branches and Sub Branches have soccer offices and secretariats to serve the people anytime, all times.
-Establish youth soccer development initiatives and establishment of income generating programs for the youth. This will help teams in the villages become self sustainable and stop over reliance on handouts and sponsorship.
– Set up exchange programs with well established academies and soccer institutions across the world.
-Have quarterly reports from all officials right fro the Sub branches to the national office where all officials will be required to analyze and assess their input and performance.
-Set up a special committee to manage the national soccer team Harambee stars.
-Have a proper consistent scouting system for the national soccer team Harambee stars that will be free from corruption and tribalism.

Shako travels to Nairobi on Thursday night for the scheduled Big debate where all the aspiring leaders are expected to answer questions from key football stakeholders in the country.

Link to the story: http://www.michezoafrika.com/harambee%20stars/is-she-the-messiah-of-kenyan-football/2471.aspx
She is the only woman who has braved the heat associated with the gunning for the top post in the management of Kenyan football after announcing her aspiration to vie for the post of chairperson in the forthcoming football elections.

Nairobi Star Website – How they will go about the football business

KENYA FOOTBALL POLLS>> Chairmanship candidates agree at first public debate that grassroot development of football is key to improving Kenyan standards

Grassroot development of Kenyan football was the recurring theme in the public debate between candidates vying for the top post at the national elections on August 13.During the grand debate at Strathmore University yesterday, all the candidates expressed a wish to develop football from the grassroots. Extreme Sports Chief Executive Officer Hussein Mohammed, Kenya Football Federation chairman Sam Nyamweya, Gor Mahia chairman Ambrose Rachier, KFF first senior chairman Twaha Mbarak and national women’s league chairperson Elizabeth Shako were at the debate and all promised to start grassroots leagues that will help revive the sport in the country. Only Football Kenya Limited chairman Mohammed skipped the event at Strathmore University as he was busy meeting club officials from the various constituencies around Nairobi.

Hussein said debate forms an important part of the electoral process as it gives aspirants a platform to articulate their manifesto to wananchi and the voting clubs and felt it was only the serious candidates who took their time to attend the debate. “Once elected, I will dedicate my energy to developing football right from the grassroots where I intend to work hand in hand with the government who will be vital in the development of football infrastructure,” Hussein said.

The debate was organised by the Movement for Political Accountability (Mopa) in partnership with the Independent Electoral Board, Kenya Transition Initiative, Bunge la Mwananchi among others.
“We shall also bring in a constitution where all the constituencies will be made sub branches while the counties will be made branches,” added Hussein.

All the candidates promised to dedicate their time to the sport and also vowed not to use football for their own personal gains including vying for elective political posts in the general elections. Put to task to explain why he wants to vie for the seat yet he had been before and there had not been much change in the way of doing business, Nyamweya said his time to take over as the national chairman was hijacked by Hatimy and three other individuals through the setting of a limited company which did all they could to gain international football federation recognition.
On his part, Twaha said he believes the time to change the system of football governance is now. He said he wanted to make it more professional but his promise of operating in a centralised office system saw part of the audience put him to task on how inclusive that would be.
His response was: “Working in one centre of power means we will be able to put sanity back into the sport.”

Shako remained optimist of capturing the seat insisting her experience with the various leagues in Mombasa and the national women’s league started last year will come in handy in improving the status of the sport. “We must develop a strategic plan that will see us avoid the preparation of national teams as we have seen before,” she said.

Rachier took the chance to explain how he wants to improve the level of coaching and promised to use his experience at Gor Mahia at the national level. Asked whether he will resign his position at Gor Mahia and Kenyan Premier league, to fully concentrate on the chase of a national office, Rachier said: “I don’t know.”

Link to the story: http://www.nairobistar.com/sports/sports/34007-how-they-will-go-about-the-football-business
KENYA FOOTBALL POLLS>> Chairmanship candidates agree at first public debate that grassroot development of football is key to improving Kenyan standards

Kenya Premier League Website – Ambrose Rachier’s campaign climaxes with launch of onslaught on Saturday

GOR Mahia chairman Ambrose Rachier will run in the August 13 elections for the man to head the national football association, with a call to leaders of all Kenyan clubs, down to the villages, to pick someone who knows the plight of clubs and players.

After earlier handing in his nomination papers to the Fifa-appointed Independent Electoral Board [IEB], Rachier quietly went about consulting chairmen, secretaries, coaches and team managers round the country, with a rallying call that “if we do not get it right, it is our clubs and players who will continue to suffer.”

This morning, the Gor Mahia chairman, holds a meeting with editors and leading football correspondents of media houses and new media, to brief them on what he called “an overwhelming desire by clubs in the country, down to the smallest, to be led by someone who has a firsthand knowledge about the situation in our clubs and our players.”

Rachier’s support to run for chairmanship of Kenyan football comes from a wide range of stake holders of the view that many people clamouring for the leadership were in it for the fame and trappings that come with the office.

“Talk to administrators of teams in the most far-flung parts of the country, in the lowest leagues, you will hear the plight of us long-suffering leaders of the football clubs. I am saying that we must now stand up and be counted and vote in a football administration that will work for the rights and development of our clubs and players.

“Our work, to keep our clubs afloat throughout the country has been back-breaking; every chairman, secretary, coach, team manager, etc, knows that. We are the ones that hurt when soccer is mismanaged. Now we have an opportunity to vote the right people to the top echelons of our game.”

Rachier’s campaign for a new dawn of Kenyan football has hit the road throughout the country, addressing the people who matter; administrators and owners of all clubs in the country. They will finally converge in Nairobi on Saturday, July 30 for a launch of the final drive towards the elections set by the IEB for August 13.

Meanwhile, the Movement for Political Accountability (MOPA) at the Africa Centre for Open Governance (AfriCOG), a citizens’ oriented social movement comprising organizations committed to empowering Kenyans to hold public leaders accountable is taking a keen interest in the forthcoming football elections.

MOPA and AfriCOG, said on Tuesday they shared deep interest in, and commitment to upholding principles of accountability in football affairs in Kenya.

They will, subsequently be organizing a National Grand Debate for all candidates cleared by the IEB to run for position of Chairperson of the Kenyan football association.

The debate, scheduled for Friday July 29 July at Strathmore University from 8.30am, aims to provide a platform for candidates to share their vision for Kenyan football with 200 key football stakeholders.

“In this way, we hope to contribute towards and enable the election into office qualified and credible leaders committed to principles of accountability, transparency and delivery of results to football stakeholders in Kenya,” the MOPA statement said.

All candidates, including incumbent Mohammed Hatimy, Rachier, Sam Nyamweya, Elizabeth Shako, Hussein Mohammed and Twaha Mbarak have been invited to take part.

“We believe that the current state of football nationally is symptomatic of an acute shortage of servant leadership and the pervasive culture of impunity as freedom from accountability,” said the MOPA statement.

“It is MOPA’s commitment to empowering, supporting and accompanying communities to demand accountability, and AfriCOG’s dedication to addressing structural causes of corruption and bad governance that informs our interest in football management in Kenya,” it concluded.

Among the invited audience to the debate are delegates from around the country including from Nationwide division I and II leagues.

Link to story: http://www.kpl.co.ke/articles.aspx?Id=426913
GOR Mahia chairman Ambrose Rachier will run in the August 13 elections for the man to head the national football association, with a call to leaders of all Kenyan clubs, down to the villages, to pick someone who knows the plight of clubs and players.

FUTAA.COM, July 28 2011 – MOPA & AfriCOG Turns Focus on Elections

Movement for Political Accountability (MOPA) and the Africa Centre for Open Governance (AfriCOG), a citizens’ oriented social movement comprising organizations committed to empowering Kenyans to hold public leaders accountable is taking a keen interest in the forthcoming football elections.

In a briefing on Tuesday, MOPA and AfriCOG, said that they were committed and very interested to upholding principles of accountability in football affairs in Kenya. The two bodies also said that they will be organizing a National Grand Debate for all candidates cleared by the IEB to run for position of Chairperson of the Kenyan football association.

Getting credible leaders

According to them, the debate is scheduled for Friday July 29 July at Strathmore University from 0830Hrs and is aimed at providing a platform for candidates to share their vision for Kenyan football with 200 key football stakeholders.

“In this way, we hope to contribute towards and enable the election into office qualified and credible leaders committed to principles of accountability, transparency and delivery of results to football stakeholders in Kenya,” read the MOPA statement.

All candidates vying for the seats in the forthcoming football elections , including incumbent Mohammed Hatimy, Abros Rachier, Sam Nyamweya, Hussein Mohammed and Twaha Mbarak have been invited to take part.

“We believe that the current state of football nationally is symptomatic of an acute shortage of servant leadership and the pervasive culture of impunity as freedom from accountability,” the statement further read in part.

“It is MOPA’s commitment to empowering, supporting and accompanying communities to demand accountability, and AfriCOG’s dedication to addressing structural causes of corruption and bad governance that informs our interest in football management in Kenya,” it concluded.

Among the invited audience to the debate are delegates from around the country including from Nationwide division I and II leagues.

Submitted 28/07-11 14:32 by Wilson Mathu
Movement for Political Accountability (MOPA) and the Africa Centre for Open Governance (AfriCOG), a citizens’ oriented social movement comprising organizations committed to empowering Kenyans to hold public leaders accountable is taking a keen interest in the forthcoming football elections.

MichezoAfrika Website, July 28 2011 – Grand debate for football election candidates

The Movement for Political Accountability (MOPA) will on Friday morning host a thrilling debate that will parade all the aspiring candidates gunning for the top management seats in the forthcoming football elections. The event to be held at the Strathmore University will be the first of its kind in Kenya organized by MOPA in partnership with the Independent Electoral Board, Kenya Transition Initiative, Bunge la Mwananchi among others.
“We believe that the current state of football nationally is symptomatic of the pervasive culture of impunity as freedom from accountability. It is MOPA’s commitment to empowering, supporting and accompanying communities to demand accountability, and AfriCOG’s dedication to addressing structural causes of corruption and bad governance that informs our interest in football management in Kenya, and in particular the forthcoming elections.” Read a statement from MOPA.
Close to 200 key football stakeholders will be in attendance to vet the credentials of potential qualified and credible leaders committed to principles of accountability, transparency and delivery of results.

Link to the story
The Movement for Political Accountability (MOPA) will on Friday morning host a thrilling debate that will parade all the aspiring candidates gunning for the top management seats in the forthcoming football elections.

Capital FM Sports – Rachier rolls off FK chair campaign

NAIROBI, Kenya, July 27- Football Kenya (FK) chairmanship aspirant and Gor Mahia FC chairman, Ambrose Rachier on Tuesday called on leaders from the clubs electorate to vote the candidate most conversant with the plight of players for the top post.

Rachier, who has the backing of Kenyan Premier League (KPL) clubs, has been consulting chairmen, secretaries, coaches and team managers of sides who will make up the electoral constituency during the August 13 polls since he handed in his nomination papers last week.

On Tuesday, the senior partner at his law firm met sports editors from various media outlets before addressing the press on his vision for the country’s football that is stagnating in the lower reaches of Fifa World Rankings.

“Talk to administrators of teams in the most far-flung parts of the country and in the lowest leagues and you will hear the plight of long-suffering leaders. I am saying that we must now stand up and be counted and vote in a football administration that will work for the rights and development of our clubs and players,” the Gor Mahia chairman charged.

“Our work is to keep our clubs afloat throughout the country. We are the ones that hurt when soccer is mismanaged. Now we have an opportunity to vote the right people to the top echelons of our game,” he added.

Rachier confirmed his attendance at Friday’s public debate organised by the Movement for Political Accountability (MOPA) at the Africa Centre for Open Governance where top contenders for the FK chairmanship will articulate their visions.

The discussion will be held at Nairobi’s Strathmore University.

Kenya Football Federation (KFF) chair, Sam Nyamweya, also confirmed his presence at the debate on Friday when he handed in his nomination papers to the Interim Electoral Board (IEB) that is managing the elections on behalf of the Government and world body Fifa.

“I want credible change for the country’s football since we have witnessed the damage mismanagement has caused for football in this country. I urge my fellow candidates to support the IEB so that we can get over with this process and move forward,” Nyamweya who has been involved in football administration for 15 years stated then.

Other candidates for the top post are Football Kenya Limited chairman, Mohammed Hatimy, Extreme Sports Limited CEO Hussein Mohammed and KFF vice-chair, Twaha Mubarak.

Meanwhile, it is emerging only nine candidates eyeing national seats at the forthcoming FK polls have met the obligation of presenting a valid tax certificate from Kenya Revenue Authority (KRA).

SuperSport.com reported on Tuesday that IEB had given the remaining aspirants until Friday to present the document or their names would be struck off the polls list.

A total of 39 candidates presented their nomination papers at the close of Monday’s deadline.

Link to the story: http://www.capitalfm.co.ke/sports/2011/07/27/rachier-rolls-off-fk-chair-campaign/
NAIROBI, Kenya, July 27– Football Kenya (FK) chairmanship aspirant and Gor Mahia FC chairman, Ambrose Rachier on Tuesday called on leaders from the clubs electorate to vote the candidate most conversant with the plight of players for the top post.

Daily Nation, July 6 2011 – House team ‘shielded Charterhouse’

A parliamentary committee is on the spot for allegedly shielding a bank accused of tax evasion and money laundering involving billions of shillings.

In a report titled: “Smouldering Evidence: The Charterhouse Bank Scandal,” the Africa Centre for Open Governance accused the Committee on Trade and Finance of pushing for the bank’s reopening instead of investigating allegations against it.

Cleared the bank

“The conclusion could be made that the committee was not interested in the truth but was merely going through the motions to validate a pre-meditated decision,” the governance watchdog notes in the report published last week.

“It seemed odd that the Parliamentary Committee seemed to be lobbying for the re-opening of the bank in spite of continuing investigations,” it said.

It accused the Committee chaired by Nambale MP Chris Okemo of colluding with the Treasury, the Attorney General’s office, Kenya Revenue Authority (KRA) and the Kenya Anti-Corruption Commission (KACC) to cover up the scam.

The committee cleared the bank last year and recommended its re-opening. (READ: House team clears Charterhouse Bank)

Nominated MP Musikari Kombo on Wednesday said the committee was protecting Kenyans from compensating the bank.

“We realised the bank wanted to use the committee to push for compensation. To protect Kenyans, we recommended that the bank be re-opened so that taxpayers’ money was not used to pay compensation,” he said.

The MP, who sits on the committee, said it relied on evidence by Finance Minister Uhuru Kenyatta, Attorney-General Amos Wako, KRA commissioner-general Michael Waweru and KACC’s John Mutonyi.

“If you were in the committee, I don’t know how you would have alleged tax evasion when KRA says there is none. CBK said they had no problems with Charterhouse.

“Wako said he had no problem with Charterhouse. Treasury said it had no problem with Charterhouse so we said, go ahead and re-open it,” he said.

Charterhouse Bank refused to comment on the report and threatened to sue this newspaper if it published the story.

“There is nothing new in the report. We will sue anybody who publishes the story,” said a top official at a public relations firm, which acts for the bank.

In the report, the watchdog criticised the committee for not investigating queries by audit firm PriceWaterhouseCoopers.

“The committee held surprisingly little discussion on Charterhouse even though there existed evidence from a credible audit firm of extensive malpractice,” it says.

“Relying on the accounts of officials who had manifestly contradicted themselves was unsafe,” the report noted.

The watchdog censured the committee for entertaining a petition by customers demanding its re-opening.

“How were the 35 customers able to organise to petition the National Assembly?” the report asks and calls for a scrutiny of the petitioners.

By PETER LEFTIE

Link to the article in the Daily Nation

A parliamentary committee is on the spot for allegedly shielding a bank accused of tax evasion and money laundering involving billions of shillings.

In a report titled: “Smouldering Evidence: The Charterhouse Bank Scandal,” the Africa Centre for Open Governance accused the Committee on Trade and Finance of pushing for the bank’s reopening instead of investigating allegations against it.

Gaps exposed in Safaricom and Telkom sales

In this report, AfriCOG documents the privatisation/divestiture of Telkom and Safaricom. “Deliberate Loopholes” describessome of the lapses that occurred in the privatisation of Telkom Kenya and Safaricom: the title refers to the deliberate evasions and subterfuges that created a fertile climate for asset stripping and corruption by senior officials whose identity continues to remain shrouded behind the veil of secrecy provided by international tax havens and off-shore financial centres. The preliminary findings of this study were presented to Parliament’s Public Accounts Committee (PAC), which took the matter to the floor of the House.

The Standard, July 7 2011 – Kenya warned about laundered money, crime

Kenya risks becoming a transit point and a haven for serious international crimes, including money laundering, a report released by a civil society and governance group has warned.

The Africa Centre for Open Governance (Africog) said money laundering was a crime that aided other crimes such as drug trafficking for which the country has recently received international attention.

Africog Executive Director Gladwel Otieno said political goodwill was needed if the country was to effectively fight international crimes.

“Some Kenyans have been named by the Obama administration as drug kingpins, a crime closely related to money laundering. This is an indicator of how the vice has taken root in the country,” said Otieno.

She said it was worrying that some public officers implicated in international crimes were still in office despite the Constitution being clear on the matter.

“Impunity still reigns in the country. Kenyans and the civil society must remain eternally vigilant and blow the whistle,” said Otieno.

Yesterday, constitutional lawyer and governance expert Wachira Maina who launched the report titled Smouldering Evidence: The Charterhouse Bank Scandal, said there was a systematic campaign to reopen the bank, which was closed in 2006.

Maina said three different audits undertaken between 2004 and 2006 by the Central Bank of Kenya raised serious questions about the operations of the bank.

“The investigation found strong indications that the bank’s clients were involved in both tax evasion and money laundering. The bank was also found to be violating the Banking Act,” said Maina.

He said money laundering involves making money that comes from illegal or criminal activity appear as if it came from legitimate sources and also converting proceeds from crime into assets that appear legitimate.

The report said Charterhouse facilitated money laundering by allowing certain customers to carry out unusually large cash transactions and/or split deposits and payments.

Otieno said the move by the Parliamentary Finance Committee to clear the bank of the money laundering allegations was suspect.

Former US ambassador Michael Ranneberger had alleged that the bank cost the Exchequer Sh20 billion in tax revenues.

By MUTINDA MWANZIA
Kenya risks becoming a transit point and a haven for serious international crimes, including money laundering, a report released by a civil society and governance group has warned.

Business Daily, July 4 2011 – Centre traces how bank was used to launder cash

More than a dozen related companies and businessmen used Charterhouse Bank as a conduit for money laundering, a new report by a corruption watchdog says, even as lawyers warned that failure to prosecute the perpetrators could undermine Kenya’s sovereign rating.

The report, which pieces together the complex network that the bank’s clients used to clean money, says Charterhouse deliberately let its customers open accounts without critical details like names, addresses or signatures – flouting the Know Your Customer regulations under which all commercial banks operate.

But the report by the Africa Centre for Open Governance also hits out at the Central Bank of Kenya, the financial services sector regulator, for failing to detect Charterhouse’s dubious operations for more than seven years.

The report, which has borrowed heavily from another one that forensic auditors prepared six years ago for the Central Bank, says incredibly huge sums of money were being deposited into some accounts in cash – enough to have caught the attention of any regulator, but the CBK turned a blind eye to it.

It gives the example of an account belonging to a businessman based in Butere, Western Kenya, that had a debit of Sh554 million and credit of Sh566 million over a 10 month period in 2006, clearly indicating that it was merely acting as a conduit for the money.

Even more telling is the fact that the money was being deposited in cash and there was no evidence of a business in Butere that could generate that kind of money in such a short period. The account had no details of what kind of business the holder dealt in.
Further evidence that the bank was being used for illegal financial transactions lay in the fact that one account holder, Paolo Sattanino was paid from another account in the same bank $10,000 every day for 12 days. The transfers have been interpreted to mean the amount was kept low to escape having to account to the Central Bank on the source of the money. CBK requires that any foreign currency transfers of more than 10,000 dollars must be accompanied by an explanation of the source.

“Failure to prosecute those responsible means the government is rewarding crime and this affects our sovereign risk rating,” said constitutional lawyer Wachira Maina. The report also shows how two big retail chains used their accounts at Charterhouse Bank to launder money and evade taxes. It gives the example of a retail chain that was opened in 2001 and operated an account with a balance of Sh4.3 billion, but was not disclosed until 2003 in a suspected tax evasion scheme.

The supermarket’s estimated under declared sales to the tax man totalled Sh911 million, according to an audit report by PricewaterhouseCoopers.

Another retail chain had several transactions involving huge amounts of money that were not supported by any documents. The management told auditors that some of the documents were accidentally burnt.

The report faults the government for failure to prosecute people involved in what appears to have been a financial institution operating on the fringes of the law. CBK placed Charterhouse Bank under statutory management on June 23, 2006 after a run on the bank caused by an enquiry in Parliament.

The Parliamentary Committee on Finance, Planning and Trade, government and even Kenya Anti Corruption Commission (Kacc) officials have in the past given the bank a clean bill of health.

Kenya Revenue Authority Commissioner General Michael Waweru told the committee that the KRA had no objection to Charterhouse reopening, as did CBK Governor Njuguna Ndung’u and Kacc Deputy Director John Mutonyi.

Dr Mutonyi told the parliamentary committee that money laundering was not a crime by the time the transactions took place at Charterhouse Bank and therefore the perpetrators could not be prosecuted. But Mr Maina said the argument does not make sense because those involved should have been charged with other crimes like tax evasion.

“Charthouse’s is a classic example of failure of our governance system that gives an incentive to criminals with similar motives,” said Gladwell Otieno of Africa Centre for Open Governance.

Money laundering is now a crime under the Proceeds of Crime and Anti-Money Laundering Act that became active in June 2010 although some sections of it like the Financial Reporting Centre (FRC) that co-ordinates intelligence on suspicious transactions are yet to be operationalised.
By STEVE MBOGO (email the author)

Posted Monday, July 4 2011 at 00:00

smbogo@ke.nationmedia.com
More than a dozen related companies and businessmen used Charterhouse Bank as a conduit for money laundering, a new report by a corruption watchdog says, even as lawyers warned that failure to prosecute the perpetrators could undermine Kenya’s sovereign rating.

Riskbusiness.com, July 4 2011 – Centre traces how bank was used to launder cash

More than a dozen related companies and businessmen used Charterhouse Bank as a conduit for money laundering, a new report by a corruption watchdog says, even as lawyers warned that failure to prosecute the perpetrators could undermine Kenya’s sovereign rating.

The report, which pieces together the complex network that the bank’s clients used to clean money, says Charterhouse deliberately let its customers open accounts without critical details like names, addresses or signatures – flouting the Know Your Customer regulations under which all commercial banks operate.

But the report by the Africa Centre for Open Governance also hits out at the Central Bank of Kenya, the financial services sector regulator, for failing to detect Charterhouse’s dubious operations for more than seven years.

The report, which has borrowed heavily from another one that forensic auditors prepared six years ago for the Central Bank, says incredibly huge sums of money were being deposited into some accounts in cash – enough to have caught the attention of any regulator, but the CBK turned a blind eye to it.

It gives the example of an account belonging to a businessman based in Butere, Western Kenya, that had a debit of Sh554 million and credit of Sh566 million over a 10 month period in 2006, clearly indicating that it was merely acting as a conduit for the money.

Even more telling is the fact that the money was being deposited in cash and there was no evidence of a business in Butere that could generate that kind of money in such a short period. The account had no details of what kind of business the holder dealt in.Further evidence that the bank was being used for illegal financial transactions lay in the fact that one account holder, Paolo Sattanino was paid from another account in the same bank $10,000 every day for 12 days. The transfers have been interpreted to mean the amount was kept low to escape having to account to the Central Bank on the source of the money. CBK requires that any foreign currency transfers of more than 10,000 dollars must be accompanied by an explanation of the source.

“Failure to prosecute those responsible means the government is rewarding crime and this affects our sovereign risk rating,” said constitutional lawyer Wachira Maina. The report also shows how two big retail chains used their accounts at Charterhouse Bank to launder money and evade taxes. It gives the example of a retail chain that was opened in 2001 and operated an account with a balance of Sh4.3 billion, but was not disclosed until 2003 in a suspected tax evasion scheme.

The supermarket’s estimated under declared sales to the tax man totalled Sh911 million, according to an audit report by PricewaterhouseCoopers.

Another retail chain had several transactions involving huge amounts of money that were not supported by any documents. The management told auditors that some of the documents were accidentally burnt.

The report faults the government for failure to prosecute people involved in what appears to have been a financial institution operating on the fringes of the law. CBK placed Charterhouse Bank under statutory management on June 23, 2006 after a run on the bank caused by an enquiry in Parliament.

The Parliamentary Committee on Finance, Planning and Trade, government and even Kenya Anti Corruption Commission (Kacc) officials have in the past given the bank a clean bill of health.

Kenya Revenue Authority Commissioner General Michael Waweru told the committee that the KRA had no objection to Charterhouse reopening, as did CBK Governor Njuguna Ndung’u and Kacc Deputy Director John Mutonyi.

Dr Mutonyi told the parliamentary committee that money laundering was not a crime by the time the transactions took place at Charterhouse Bank and therefore the perpetrators could not be prosecuted. But Mr Maina said the argument does not make sense because those involved should have been charged with other crimes like tax evasion.

“Charthouse’s is a classic example of failure of our governance system that gives an incentive to criminals with similar motives,” said Gladwell Otieno of Africa Centre for Open Governance.

Money laundering is now a crime under the Proceeds of Crime and Anti-Money Laundering Act that became active in June 2010 although some sections of it like the Financial Reporting Centre (FRC) that co-ordinates intelligence on suspicious transactions are yet to be operationalised

Link to article on riskbusiness.com website
More than a dozen related companies and businessmen used Charterhouse Bank as a conduit for money laundering, a new report by a corruption watchdog says, even as lawyers warned that failure to prosecute the perpetrators could undermine Kenya’s sovereign rating.

Nairobi Star, 02 July 2011 – Act on Charterhouse bank, NGO tells government

AN NGO has criticised the government for failing to take action against Charterhouse Bank, despite having evidence of malpractices African Centre for Open Governance boss Gladwell Otieno said this is an example of systemic failures of institutions in the country.

Otieno wondered why the CID, KACC, the Attorney General’s office, Treasury and KRA remain powerless although there is sufficient and strong evidence that Charterhouse violated the Banking Act and its clients were involved in highly suspicious activities. “These issues are slipping down the agenda and it is becoming characteristic of impunity in Kenya. If we don’t act now, Kenya will turn into a criminal haven,” Otieno said.

Three teams including Pricewaterhouse Coopers, Central Bank of Kenya’s due diligence team raised serious questions about operations at Charterhouse bank with indications that its clients were involved in both tax evasion and money laundering.

Crimes suspected to have been committed by Charterhouse bank by the three teams were identified as breach of the know your customer regulations, structuring or splitting deposits and payments, unusual large cash transactions and webs of related companies’ accounts.

She warned that Kenya’s failure to strengthen anti-money laundering laws will result in loss of investor confidence and risk becoming a transit point and haven for serious international crimes.

The Africog executive director said there was evidence that Charterhouse bank repeatedly flouted the Banking Act and prudential guidelines in complete disregard of CBK regulations and its licence should have been revoked.

According to the report, 839 accounts of the 1,004 accounts at Charterhouse bank had violated CBK’s guidelines because they missed basic customers details such as name, addresses, ID photo or signature cards. She said KRA owes the country an explanation about its investigations and action should be taken against tax evaders.

BY DOMINIC WABALA
AN NGO has criticised the government for failing to take action against Charterhouse Bank, despite having evidence of malpractices African Centre for Open Governance boss Gladwell Otieno said this is an example of systemic failures of institutions in the country.

Activists want DPP nominee probed

At the start of a week that should see top Judicial nominees discussed in parliament, opposition to the Director of Public Prosecutions nominee Keriako Tobiko is mounting .The civil society says its dissatisfied by the process followed in nominating Tobiko saying that it was flawed. Under the umbrella body, Kenyans for Peace , Truth and Justice, a petition will be presented to parliament asking MPs not to debate the nominee for the DPP’s job.

Deliberate Loopholes

In this report, AfriCOG documents the privatisation/divestiture of Telkom and Safaricom. “Deliberate Loopholes” describes some of the lapses that occurred in the privatisation of Telkom Kenya and Safaricom

Daily Nation, May 26 2011 – Kenyan tycoon in Sh7 billion Triton fraud arrested

The proprietor of Triton Petroleum Ltd Yagnesh Devani was arrested in London on Thursday.

“I can confirm that he was arrested earlier today and he has been remanded in custody,” the British High Commission in Kenya spokesperson, Mr John Bradshaw, said in Nairobi.

However, Mr Bradshaw said it was not yet known when the suspect would be extradited to face fraud charges.

“The court is yet to set the date for extradition hearing before he is brought back,” he said.

It is during that hearing that the formal request for extradition and all the supporting documents shall be put forward.

On Monday, a British minister assured the government that his country would hunt down Devani — the man behind the Sh7.6 billion Triton oil scandal — and extradite him to face justice in Kenya.

Earlier, the British minister asked the government to extradite Nambale MP Chris Okemo and former Kenya Power and Lighting Company boss Samuel Gichuru to the UK to face money-laundering charges.

Attorney General Amos Wako has submitted arrest warrants against Mr Okemo and Mr Gichuru to Chief Public Prosecutor Keriako Tobiko to start the extradition process.

Criminal procedure code

Mr Devani fled the country in 2009 following the Triton Oil scandal. The government sought the help of Interpol to track him down.

He had been charged in absentia for stealing Sh955,334,094 from Kenya Commercial Bank, and 26,216.60 tonnes of oil at the Kipevu storage facility in Mombasa valued at Sh1,532,272,140.

The criminal case against him was later withdrawn under Section 87 of the Criminal Procedure Code. This means the same charges can be brought against him again.

The scandal can be traced to 2008 when Triton Oil Company was allowed by Kenya Pipeline Company (KPC) to collect oil valued at Sh7.6 billion and sell it without permission of the financiers.

In the wake of the fuel shortage witnessed in 2008 and following complaints by oil marketers and financiers, KPC ordered an internal audit of oil stocks in its systems.

The audit revealed that stocks amounting to 126.4 million litres were irregularly released to Triton Petroleum Limited between November 2007 and November 2008.

Triton was not entitled to the stocks, nor did financiers authorise the release as required under contractual arrangements.

A July 2009 report by the African Centre for Open Governance (Africog) warned Mr Devani enjoyed good political connections.

“Triton’s executive chairman and managing director, Mr Yagnesh Mohanlal Devani has been described as a shrewd 43 year-old businessman who lives large and hobnobs with the high and mighty. A 2006 ceremony to open Triton’s LPG depot was attended by political bigwigs, including then Vice-President Moody Awori, several cabinet ministers, Hon. Raila Odinga, Hon. Uhuru Kenyatta, and several permanent secretaries,” Africog observed.

Mr Devani’s ties with the powers that be started during the Moi regime when Triton clinched the lucrative contract to supply petroleum products to the Kenya Power and Lighting Company several times.

Triton was also among the firms named in Parliament over allegations of money laundering. The firm is alleged to have received suspicious loans from Charterhouse Bank.

Mr Devani fled the country in 2009 and a warrant of his arrest issued.

Mr Devani was accused of stealing Sh2.7 billion from KCB.

The bank has also sued Triton for Sh2 billion for oil imports secured by the bank through debentures.

Several of his senior managers and workers including Mr Peter Kimathi, Mr William Mundia and Mr Sunil Somai were charged with criminal offences relating to the Sh7.6 billion oil scandal.

The directors, however, argued before court that they could not take plea on behalf of the company, and on Thursday a Nairobi court ruled that the three would not be facing criminal charges.

By PATRICK MAYOYO pmayoyo@ke.nationmedia.com and WALTER MENYA wmenya@ke.nationmedia.com

Link to Story in the Daily Nation

The proprietor of Triton Petroleum Ltd Yagnesh Devani was arrested in London on Thursday.

“I can confirm that he was arrested earlier today and he has been remanded in custody,” the British High Commission in Kenya spokesperson, Mr John Bradshaw, said in Nairobi.

However, Mr Bradshaw said it was not yet known when the suspect would be extradited to face fraud charges.