AfriCOG in the news

A damning report by the Africa Centre for Open Governance (AfriCOG) accuses Parliament of failing to fulfill its constitutional duty regarding government borrowing, leading to a ballooning national debt and… Read More »Report slams Parliament for weak oversight as debt chokes taxpayers – The Standard

Kenya’s police force has historically been an instrument of political control, a consequence that dates back to the colonial period. Before independence, the colonial police were used to suppress dissent… Read More »2024: A year of blatant state repression through regime policing – KHRC

The Africa Centre for Open Governance (AfriCOG) has released a report accusing President William Ruto’s administration of fostering a culture of corruption, rampant misuse of public funds, and a worrying… Read More »AfriCOG raises alarm over rising graft, debts under Ruto’s administration – The Eastleigh Voice

A new report has revealed that Kenya acquired 36 new foreign loans totalling Sh898 billion in the 2023-2024 fiscal year, raising concerns about the country’s debt sustainability. According to the… Read More »Swimming in loans: Kenya’s foreign borrowing hits Sh898 billion in 2023-2024 fiscal year – The Eastleigh Voice

Deep-rooted corruption has deepened in the country in the last two years of President William Ruto’s tenure, a corruption report by Africa Centre for Open Governance (AfriCOG) now claims. Under… Read More »Deep-rooted graft has grown during President’s first term – People Daily

The Africa Centre for Open Governance (AfriCOG) has painted a grim picture of the state of corruption in the country. In its 2024 report, the civil society group accuses the… Read More »AfriCOG lobby group raises questions on war on corruption – Citizen TV Kenya

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President William Ruto is the main impediment to the fight against corruption. His decisions and appointments have given a major sign that he is not interested in fighting corruption. This… Read More »AFRICOG accuses the President of lack of goodwill – K24TV

The African Centre for Open Governance (AfriCOG) has issued a stark warning about the state of corruption in Kenya. In its 2024 report, the civil society organization accuses President William… Read More »AfriCOG report accuses Ruto’s gov’t of mismanaging public funds, fueling graft – Citizen Digital

Former Treasury Cabinet Secretary Henry Rotich has landed a state job following the appointment made by the Public Service Commission. Rotich has been picked to serve as the Senior Advisor… Read More »Ex-CS Henry Rotich lands plum job in Ruto’s office

Sixty-four African organisations and individuals, working in various fields in addressing Africa’s development challenges, have welcomed the withdrawal of British politician Matt Hancock as a special envoy of the United… Read More »64 groups, individuals back UN’s withdrawal of Matt Hancook as UNECA special envoy – Graphic Online

At Sh2.7 billion per kilometre, the Nairobi Expressway is now Kenya’s most expensive road, raising concerns about its viability amid rising national debt. The expressway, which is being constructed through… Read More »The making of Kenya’s most expensive roads – The Standard

A three-judge bench of the High Court has quashed several gazette notices, nullifying the appointment of 128 appointed to various parastatals in 2018. This now deals a big blow to… Read More »Court nullifies parastatal appointments of senior figures in Uhuru’s administration – The Star

After 15 years, Charterhouse Bank has finally been wound up, going down in history as one of Kenya’s smallest but “dirtiest” banks. Before its closure in 2006 over money laundering… Read More »Charterhouse: The Making of Kenya’s little dirty bank – The Standard

A December 2020 report by the Africa Centre for Open Governance (AfriCOG) has shed light on how the Jubilee Government inflated road projects leading to embezzlement of taxpayers’ money. AfriCOG stated that… Read More »Report Reveals How Jubilee Govt Inflated Road Projects – Kenyans.co.ke

The Jubilee administration has spent trillions in development projects but they are not visible on the ground, a study by Africa Centre for Open Governance shows.  According to the report,… Read More »Trillions spent, but where are the projects?

Click here to Download Report The corruption being witnessed in the country is as a result of a poor budget-making process that has seen looted billions being disguised as genuine allocations,… Read More »Ouko calls for review of budget process

It’s been all motion for President Uhuru Kenyatta’s anti-corruption crusade but no movement. This is the verdict of a civil society report on the government’s renewed anti-graft crusade, describing the… Read More »Uhuru barks but can’t bite, civil society says

A damning report has indicted the State for being “captured” by systemic forces of corruption, leading to theft of public resources. The Africa Centre for Open Governance (AfriCOG) report released… Read More »State capture foils Uhuru’s anti-corruption campaign

Civil rights groups yesterday said the mobile loan recently rolled out by the government and five banks for smaller businesses is exploitative and part of state capture by the private… Read More »Stawi loan costly and is part of Huduma Namba scheme, says civil society

Status:  Intimidated About the situation On 16 August 2017, Kenya Revenue Authority officials attempted to raid the African Centre for Open Governance’s offices.  On 14 and 15 August 2017, the… Read More »Intimidation And Judicial Harassment Of The African Centre For Open Governance

Kenya’s NGO Coordination Board threatened to arrest George Kegoro, Executive Director of Kenya Human Rights Commission (KHRC), Gladwell Otieno, Executive Director of African Center for Open Governance (AfriCOG) and Maina… Read More »Kenya: Worrying crackdown on Kenyan defenders: George Kegoro, Gladwell Otieno and Maina Kiai

The electoral commission is on the spotlight over its preparedness to hold credible elections with only 19 days to go even as it insists it is ready for the exercise.

A second edition of a report dubbed “Ready or not?” that assesses pre-election readiness of the country, says the Independent Electoral and Boundaries Commission (IEBC) is time barred and needs to move with speed on key and critical issues touching on Presidential ballot papers, voter register, electronic relaying of results and efficiency of its electronic voting kits.

The report released on Tuesday in Nairobi was prepared by the Africa Centre for Open Governance (AfriCOG) and Kenyans for Peace with Truth and Justice (KPTJ).

In the report, the two lobbies demand that the commission publicly tests electronic system technology that will be used during the voting day.

POSTPONE ELECTIONS

The testing, they said, should include simulations of what will happen if the system fails. It also demands that IEBC publishes voters’ register, which should have been done 30 days before the election.
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Already, the Opposition, National Super Alliance (Nasa), has moved to court over the matter, accusing IEBC of failing to ensure there is complementary technology to act as backup during the elections as required by the law

During the hearing of the case at the High Court, the Opposition said it wants the election postponed should the electronic system fail on polling day.

But IEBC CEO Ezra Chiloba said that in the biometric voter identification in the May-June verification of register, the 45,000 KIEMS (Kenya Integrated Election Management System) kits registered a 98.8 per cent accuracy.

NETWORK PROBLEMS

The kits, he said, will be continuously tested specifically, three days to the election.

Mr Chiloba added that to ensure the smooth electronic transfer of results, the commission is working closely with three mobile network providers to expand their network.

In remote areas that are not covered by the telecommunication firms, satellite technology will be used.

“We have mapped close to 92 per cent of the country. This will ensure that all results are transmitted electronically. In the likely event there is network outage we will move to a place that is covered to relay the results,” Mr Chiloba said.

COMPLEMENTARY MEASURES

He added: “All through, our tests and during the verification exercise itself, the performance on biometric verification by the kits was 98.8 per cent accuracy which is different from 2013.”

In the event that voter’s details are not retrievable from the Kiems through biometric means due to various reasons, he explained, IEBC has put in place complementary measures embedded in the system.

“We will run an alphanumeric search in the Kiems’ complimentary voter identification register. If this also fails we will use the printed register after inviting agents representing political parties.

“There will be records showing how many people were identified using alternative mechanisms. Given these procedures we expect a minimal number of such individuals being identified as such on the polling day,” he said.

DIRECT PROCUREMENT

Mr Chiloba said the commission will this week publish the voter register for public inspection, but with truncated information in regards to ID Numbers and voter’s images due to privacy reasons.

On the presidential ballot papers crisis, Mr Chiloba said the commission was considering direct procurement should the Court of Appeal not rule in their favour in the case where the High Court nullified the tender awarded to Al Ghurair Printing and Publishing LLC, o grounds that there was no public participation.

IEBC was directed to come up with a mechanism for public participation even as the firm prints the ballot papers for the other elective seats.

“There are conditions that justify that process. We have explored options and we have a basis as to where we could go when it comes to direct procurement. We can justify the identification of a company,” he said.

IMMEDIATE ATTENTION

He added: “We are already thinking ahead of the Court of Appeal ruling. In the real sense we are not waiting for the Court of Appeal decision. This is the first time in public procurement that public participation is being demanded of public entities. It’s an experiment on the wrong specimen, the IEBC, a few days to the election.”

The report further cites increased voter education and post-election dispute resolution as some of the issues that need immediate attention by the commission to ensure a free and fair election.

On voter registration, it recommends that the commission publicizes the pre-audit voters’ register data at all levels so that independent observers can understand the changes.

Most importantly, the Civil Registration Department has been asked to investigate why many deaths, which were previously captured in the IEBC voter register but later removed, go undocumented.

“The Civil Registration Department must also create and maintain a system through which it sends IEBC updated data on a regular basis so that the register of voters can stay updated,” it says.

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Africa Centre for Open Governance (Africog) director Gladwell Otieno has moved to court seeking to have the electoral agency compelled to publish and open up the voter register for public inspection as clustered per polling stations.

Ms Otieno who has sued the Independent Electoral and Boundaries Commission (IEBC) also wants it to take into consideration submissions by concerned persons as required by law and revise the register of voters.

In the case documents, she claims that the failure to do so threatens the right to a free, fair and democratic polls come August 8.

She argues that if that is complied with, the electoral process will be transparent, accountable and accurate.

She also wants the IEBC to be temporarily stopped from distributing a purported register of voters to returning officers for use in the General Election before being subjected to public inspection in a reasonable time frame.

A new legal challenge aimed at forcing the IEBC to open the voters register for scrutiny has been launched at the High court.

Activist Gladwell Otieno petitioned the court on Tuesday to compel the electoral agency to publish the register for public inspection.

The activist told the court there are inconsistencies in numbers declared by the IEBC.

“There are noted inconsistencies in numbers declared by IEBC. It is only fair and just the actual status is ascertained,” she says in her application filed just 20 days to the August 8 voting day.

“It will be fair and just to allow the register voters to be subjected to public inspection…This will enable the applicant to ascertain the actual number of registered voters in affected regions.”

Otieno, who is Africog founder and executive director, also wants the court to prohibit the commission from deploying the register before it is scrutinised.

She is also seeking to compel IEBC to gazette the final register per polling station but wants it stopped from distributing the register to returning officers pending determination of the case.

Otieno’s argument is that Section 6 of the Election Act requires that the register be opened up for inspection within 90 days to a general election.

But she noted that despite her requests, the commission has declined to publish the register as required by law or even take into account submissions by concerned persons.

“The continued non-observance of provisions of the law constitute a threat to the rights and freedoms for a free and fair election.”

She noted failure by the electoral agency to meet scrutiny demands would be an affront to principles of the electoral system as espoused in article 81 of the constitution.

The applicant further says she has legitimate expectations that the commission will, at all times, be guided by the law.

Otieno wants the suit expedited to enable “an electoral process that is transparent and administered in an impartial manner”.

By RACHEAL MBURU, NAIROBI, Kenya, Jul 18 – AfriCOG Executive Director Gladwell Otieno now wants the Independent Electoral and Boundaries Commission compelled by the courts to open up the voters register for public scrutiny.

In the application, Otieno is seeking orders directing the polls body to gazette the final register per polling station ahead of the General Election.

Also sought are orders stopping the electoral agency from distributing the voters register to Returning Officers pending determination of the suit.

Otieno is asking the court to grant the orders over claims that there are inconsistencies in the voters register in certain regions.

The applicant argues that under the Elections Act, the Commission is required to open up the register 90 days to the election date.

In addition, the NGO founder wants the electoral body prohibited from deploying the voters register for use in the General Election before it is subjected to public inspection.

She argues that inspection of the register will enable her to scrutinise and ascertain the actual registered voters.

AfriCOG has faulted IEBC for failing to publish the voters register and in so doing poses a threat to the exercise of the right to free, fair and democratic elections.

“IEBC without any basis has refused to publish and open up the voters register for public inspection as required by law,” Otieno states.

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The electoral commission faces a fresh legal hurdle after an activist petitioned the High Court to compel the IEBC to open the voters’ register ahead of the August 8 poll.

Activist Gladwell Otieno yesterday told the court to ask the electoral agency to publish and open the register for public inspection as clustered per polling station.

Otieno told the court the register, as it is today, has inconsistencies in the numbers declared by the commission as the actual figures of registered voters.

With only 19 days left to the General Election, Otieno who is the founder and Executive Director of Africog, also wants the court to prohibit the commission from deploying a voters’ register for use at the election before it is subjected to public inspection.

In addition, she wants the IEBC stopped from distributing the voters’ register to returning officers pending determination of the case.

“The continued non-observance of the provisions of the law by the Chebukati-led commission constitutes a threat to the rights and freedoms to have a free and fair election,” she said.

She said failure by the electoral agency to open the voter register is an affront to the principles of the electoral system as expounded in Article 81 of the Constitution.

Otieno wants the suit to be expeditiously heard for Kenyans to have “a transparent electoral process”.

Link to the story

The electoral commission has been dragged to court for failing to make public the voters’ register.

The petitioner, Gladwell Otieno, the founder and Executive Director of Africa Centre for Open Governance (Africog), argued that failure by the Independent Electoral and Boundaries Commission (IEBC) to open up the register for public scrutiny after the audit by KPMG, is a threat to free, fair and credible elections.

“There are noted inconsistencies in numbers of registered voters in certain areas. It is only through inspection of the register that we will be able to scrutinise and ascertain the actual number of registered voters but the commission has refused to publish it,” said Ms Otieno.

Through her lawyer Willis Otieno, Otieno wants the IEBC compelled to release a register of voters per polling station and allow public scrutiny of any errors to be corrected before August 8 elections.
She also wants the commission restrained from distributing the voter registers to constituency returning officers until the suit is determined. ALSO READ: Nightmare for IEBC as court cases rise

“The petitioner is apprehensive that time may run out before the public have a chance to scrutinise the register and sufficient time given for revision taking into account public views and comments,” said the lawyer.

An audit report by KPMG had discovered several discrepancies in the voter register, with 88,602 dead voters being deleted from the list. Ms Otieno stated in her affidavit that the commission was supposed to open the register of voters for inspection 60 days to elections for a period of one month, after which they were to publish a list of registered voters per polling station.

She said despite numerous requests to the IEBC to be supplied with the voter register, the commission had refused, making her apprehensive that some discrepancies might be in the register. According to Otieno, verification of biometric data to confirm the details of a registered voter is different from a public inspection of the register.
“What we want is for the public to confirm the details per polling station as reported by the commission and ensure that those appearing in the register are indeed those registered in the particular polling station,” she said. She accused IEBC of disregarding electoral laws by refusing public scrutiny of the register.

Read more at: https://www.standardmedia.co.ke/article/2001248240/activist-gladwell-otieno-sues-iebc-for-failing-to-make-voters-roll-public

In a brazen breach of diplomatic protocol, a top adviser to Kenya’s President Uhuru Kenyatta threatened civil society activist Gladwell Otieno on the sidelines of the International Criminal Court gathering… Read More »Kenya: Top official threatens civil society activist at ICC

Kenya’s sporting talent faces imminent death if the government does not take action against doping, bribery and match-fixing, among other graft activities.

A report released Monday by global anti-corruption watchdog Transparency International (TI) says that while sporting events generate huge revenues, they are also attracting cartels, which means athletes gain little.

In its Global Corruption Report, TI says corruption in sport manifests in the appointment or election of officials, financing of sporting activities, the planning of major events and match-fixing.

The watchdog says that with global sporting events generating at least $145 billion (Ksh14.5 trillion) a year, it makes sport attractive to corruption but with limited checks.

The report, a 390-page document, was inspired by the indictment of nine former global football management officials by the US for corruption related offences.

It led to the resignation of football organisation Fifa president Sepp Blatter as other officials were banned from the sport. Athletics and tennis are also facing corruption claims.

But in Kenya, Bob Munro, the chairman of local football club Mathare United argued that graft in the sport could ruin the future of the youth and in turn make it difficult to fight the vice in other sectors.

“The huge rise in revenues and lack of external as well as internal accountability pose a serious threat to sport as a force for good.

“Corrupt sports officials are not just stealing money. They are also stealing the future of our youth, the future of our athletes and the future of our sports,” Mr Munro, who said his childhood character was shaped by playing local football with immigrants in Canada, writes in one of the chapters titled “Sport as a force for good. Tackling corruption in sport can reinforce anti-corruption efforts in other sectors.”

And to participants gathered in a Nairobi hotel during the launch of the report in Kenya, the government was blamed for doing little even as officials plundered funds, athletes cheated and matches fixed.

Transparency International-Kenya chairman Richard Leakey criticised government officials for turning a blind eye to sports management, something he said could ruin Kenya’s heritage.

Government officials not present

“It is, to me, tragic that in areas such as sport which since independence have represented Kenya’s image and is Kenya’s most important outreach, we face issues and when we come to present a report, our government officials are not present,” he said.

“It is, to me, a great shame. It is ruining our country in so many ways. Sport is now being tarnished,” added Dr Leakey, who took issue with the government for ignoring “a big challenge.”

There are currently claims that Kenyan athletes have continually doped and the country is now on the watch list.

Kenya could be banned from the 2016 Rio Olympics if it doesn’t convince the World Anti-doping Agency (Wada) within two months that it has enhanced checks against doping.

A banned athlete recently accused Athletics Kenya CEO Isaac Mwangi of demanding a bribe so the length of the ban could be reduced. Mr Mwangi denied the claims but stepped aside for investigations.

Demand and supply

Dr Leakey had finished his speech and left the venue before a representative of Sports Cabinet Secretary Hassan Wario arrived at the event to deny claims the government was looking the other way.

“I wish to state that corruption is not a government policy,” said Mr Martin Wekesa, who read Dr Wario’s speech.

“Corruption has two sides, the demand side and the supply side. And while the demand side can be attributed to the government, the corporate sector is the supplier.

“The best strategy is to focus on both sides,” he argued, adding the government has been demanding accountability from sports managers.

Representatives from athletics and rugby associations, the Kenya Premier League, The National Olympic Committee of Kenya (Nock) and the Africa Centre for Open Governance (Africog) were present, and they all seemed to agree that corruption in Kenyan sport is on the rise.

“When we are banned, it doesn’t mean that only athletes will be affected, it surprises me that everyone else is quiet. This is a national issue that we must all face,” Barnabas Korir, an executive committee member at Athletics Kenya said.

Dr Richard Omwela, who chairs the board of the Rugby Union added: “Sponsors have told me, ‘Richard, we are not coming back because we believe your board is corrupt.’”

“I am trying to get them back but there will come a time when I will say enough is enough because I do not earn a living from rugby. I am trying to do good for the society.”

DEPUTY President William Ruto is keeping his fingers crossed as the Assembly of States Parties Bureau makes a critical decision regarding his crimes against humanity charges at the ICC.

However, ahead of the big decision, there are already concerns about why Attorney General Githu Muigai did not travel to The Hague – as the State sponsored several politicians to the weeklong ASP meeting.

“A Kenyan ambassador who normally leads the country’s engagement with the ICC complained that these politicians had undone months of diplomacy that he had put in place,” George Kegoro, KHRC Executive Director, wrote in the Sunday Nation.

Kenya is pushing for the withdrawal of recanted testimony against Ruto as well as a request to the ASP to appoint an independent team to audit the Prosecutor’s witness recruitment processes in Kenya.

However, on Friday, Western countries teamed up with powerful global NGOs to oppose the Kenyan request before the matter was refereed to the 18-member ASP Bureau.

The Bureau is expected to communicate its decision to the ASP plenary on Tuesday, either rejecting, adopting or amending the Kenyan proposal.

Foreign Affairs Cabinet Secretary Amina Mohammed said their diplomatic charm offensive had not flopped and the Kenyan agenda could still succees.

“We are quite comfortable with where we are right now,” Amina emphasised.

On Friday, at least 33 countries, including a number of EU states, Switzerland, Australia, Canada and Costa Rica rejected the Kenyan request, saying it would undermine the ICC’s judicial independence.

“Hearing all voices is important, but it would be inappropriate to express views under active consideration by the ICC,” an Australian representative told the ASP.

The 18-member ASP Bureau comprises mostly Western countries and many doubt Kenya will succeed in its diplomatic offensive.

Current members of the ASP bureau are Chile, Colombia, Costa Rica, Czech Republic, Germany, Ghana, Hungary, Japan, The Netherlands, Nigeria, Republic of Korea, Romania, Samoa, Slovenia, South Africa, Sweden, Uganda and the United Kingdom.

Kenyan NGOs have teamed up with their counterparts to mount a strong opposition to the pro-Ruto move.

Kenyans for Peace With Truth and Justice, a coalition of more than 30 NGOs, claimed at least eight ICC witnesses in the case against President Uhuru Kenyatta had died under mysterious circumstances.

In a strongly worded statement, Africog chief Gladwell Otieno said the ASP must not allow any decisions that could impact the independence and integrity of the ICC.

It is hard to forget the loud, sycophantic sentiments of Dr. David Nkekorach Matsanga, the dramatic Ugandan who made it his business to defend President Uhuru Kenyatta and Deputy President William Ruto and by extension Kenya, against the ‘ills’ of the ICC. Perhaps a clever schemer in the Jubilee administration, hired to make the life of anyone perceived to support the ICC a living hell, came to the realisation that Kenyans had become tired of listening to Matsanga’s shouting.

This explains the change in tact. Introduce a new personality to defend Kenya against the ICC and pit brother against brother and scuttle civil society by causing divisions. Tear down the ‘evil society’ from within. It’s an almost brilliant plan, but ‘almost’ does not count.

New Kid on the Block

Ngunjiri Wambugu, under the outfit Kikuyus for Change, raised his profile by leading the pro-ICC campaign, helping other civil society organisations to collect 1 million signatures in support of the ICC. Through this act and many of his articles, Ngunjiri was seen to be a strong proponent of the ICC.

Then in a sudden about-face, Ngunjiri shocked many, and indeed dare I say, committed the ultimate betrayal, by publishing an article in which he urged Kenyans to accept the Uhuru-Ruto presidency, arguing that the ICC was not the solution for justice: “as for the rest of us, especially some of Kenya’s civil society, we must stop crying louder than the bereaved and ask ourselves whether while we are still agitating for justice for 2007, the victims might have moved on”.

Since his grand exodus to the ‘other side’, Ngunjiri has spiritedly defended the Jubilee administration through his regular columns in The Star. He has become more Catholic than the pope. He even unabashedly created an sms platform to compile a list of Kenyans who want the ICC cases terminated. He has, in my view, used the knowledge he gained while working with pro-ICC organisations to relentlessly attack the very groups that let him into the fold and trusted him with their tools of the trade. Yes, a man may change his mind. It is his democratic right, but you cannot tear down another based on the manipulation of truths simply because you have a different opinion.

Brother against Brother

Ngunjiri’s latest attack is against the backdrop of the ICC allowing a local NGO, Africog, to make submissions on Kenya’s lack of cooperation with the ICC. Africog’s submission will explain the context in which the alleged non-cooperation occurred and will highlight the relevant statutory provisions under Kenyan law relating to cooperation with the ICC. Ngunjiri has opposed the ICC’s decision.

In a scathing, bare-knuckled attack, Ngunjiri accuses Africog and Bensouda of colluding to manufacture lies. He asks how the ICC can allow a civil society organisation that clearly has a problem with Uhuru and his government to make observations. Ngunjiri adds, “Africog’s associates tried to stop Uhuru from running for president. When that failed and he (Uhuru) run and won, they challenged his election. When that failed, they used the ICC to run a concerted international campaign with the single purpose of delegitimising his government.”

In a protest letter to the ICC, Ngunjiri demands to know why Africog filed its application on the last day of the period allowed by court rules, a move that denied anyone the chance to challenge its application. Insultingly, he wondered why the judges were quick to respond. He suggests that the judges are never quick to make a decision in such matters.

One media outlet frames the attack by Ngunjiri against Africog as an NGO row, pitting one civil society organisation (CSO) against the other. It now appears that CSOs are very divided on the ICC issue. It is naïve to assume that civil society should be homogenous, but never has the divide been so pronounced as it is now. The grand plan therefore unravels itself: create massive confusion within the CSOs, by using one of their own, alienate a few and delegitimise their actions.

Whither civil society?

While politicians dominate the public space through political rallies and state functions, civil associations employ tactics to get public attention, especially through the media. So when the ‘divide’ is openly displayed and manipulated in public, then the sector looks weak, divided and undermined.

US President Barack Obama, in his speech to Kenyans on 26 July at the Safaricom Kasarani Stadium, highlighted the important role of civil society in maintaining the democratic space in the country. It is surprising that a section of Kenyans, describing civil society as ‘neo-colonial tools’, forget the important watchdog role played by NGOs. They actively protect and promote citizens’ rights, including freedom of speech, which is now being used to insult civil society. Civil society activists should find solace in the fact that history does not forget.

The ICC debate is for me a passing cloud, a very challenging time for civil society, but the few who choose to, must remain strong and steadfast. This is the hallmark of civil society, the unrelenting will to challenge that which is not in the best interests of the people. More so when you are branded the ‘enemy of the people’.

The Appeals Chamber of the International Criminal Court has granted a local non-governmental organisation amicus curiae (friend of the court) status in Prosecutor Fatou Bensouda’s case against Kenya over alleged non-cooperation.

But the decision has been opposed by another civil society organisation, setting the stage for what could play out as a major contest between two Kenyan organisations on the international scene. An amicus curiae is not a party to a case but offers information bearing on the case without being solicited by any of the parties to assist a court. The decision by the ICC Appeals Chamber to allow the Africa Centre for Open Governance (AfriCOG) to submit observations in Bensouda’s case resulting from the ICC versus President Uhuru Kenyatta case has been challenged by Change Associates Trust. The Trust has written to the President of the Assembly of State Parties (ASP) over what it terms a “deliberate and calculated witch-hunt”. Bensouda has filed a case seeking to have Kenya referred to the ASP for non-cooperation in relation to Uhuru’s case, which she terminated last year for lack of evidence. In a terse letter to ASP President Sidiki Kaba — copied to members of the United Nation’s Security Council, Africa Union member states and their European Union counterparts — Change Associates says the manner in which AfriCOG was admitted as amicus curiae was suspicious and based on misinformation. The civil society group argues that to win its application, AfriCOG colluding with Bensouda, presented falsehoods to the Appeals Chamber on the current state of Kenya, portraying it as still reeling from the 2007/2008 post-election violence.

Through its executive director Ngunjiri Wambugu, Change Associates questions why AfriCOG filed its application on the last day of the period allowed by court rules, a move that denied anyone the chance to challenge its application. Wambugu says the application ought to have been rejected on those grounds. “We do not have a legal avenue to raise these issues against the AfriCOG application, which is what we would have preferred. This is because the CSO (civil society organisation) deliberately filed its application on the very last day allowed by the court,” says Ngunjiri in his letter dated May 28. The protest letter is also copied to the ICC President, Lady Justice Silvia Fernandez De Gurmendi; first vice president, Lady Justice Joyce Aluoch; and second vice president, Lady Justice Kuniko Ozaki. The group has urged the ASP president to intervene and ensure that an injustice is not delivered through the machination of Bensouda and AfriCOG. It complains about what it alleges is an attempt by Bensouda, using AfriCOG, to make Kenya an accused person before the court through the Uhuru case.

“AfriCOG’s entire set of observations seems to be accusations on the Government of Kenya with no connection to the prosecution’s case against Kenyatta. The ICC prosecutor is using the NGO to gradually build up a case against the Kenya Government under the guise of prosecuting Kenyatta’s case, which she admits has collapsed,” says Ngunjiri.

But AfriCOG executive director Gladwell Otieno argues in her submissions that it was Kenya’s apparent non-cooperation that led to the termination of Uhuru’s case and caused her to seek the amicus status. Otieno accuses the Government of frustrating Bensouda’s efforts to obtain crucial evidence. “Non-cooperation by the Kenyan Government has played its part in ensuring that the case against Mr Kenyatta was terminated and as such, the Applicant is fully cognisant of the importance of genuine state cooperation and the impact of non-cooperation on future cases at the ICC,” Otieno says in her request. She also accuses Attorney General Githu Muigai of misleading the trial court that there was no basis on which the State could cooperate with the requests made by Bensouda, But according to Ngunjiri, while amicus status is granted to a party that will provide specific expertise on particular topics, to add value to the case, the same cannot be said of AfriCOG on the current case.

“This (lack of providing expertise information) was the basis on which various applications for amicus curiae observations, including the ones by the CSO network and Kituo Cha Sheria on the case of the prosecutor versus William Ruto and Joshua Sang, were rejected on September 13, 2012,” the civil society group argues. The group contends that from its mandate, which is primarily governance and anti-corruption issues, AfriCOG does not present any specific expertise in the case. But in her plea to the court, Otieno states: “We will detail the other various instances of non-cooperation, including the failure to freeze the assets of Mr Kenyatta, which may allow the Appeals Chamber to grasp the context in which these actions have taken place.” Efforts to reach Otieno yesterday to respond to Change Associate’s allegations of relying on falsehoods were futile as she did not respond to our numerous calls and text messages.

A civil society organisation that aggressively challenged Uhuru Kenyatta’s presidential victory at the Supreme Court has started another legal duel with the President at The Hague.

The Africa Centre for Open Governance (Africog) has already been allowed to file observations challenging a decision not to sanction Kenya at the Assembly of States Parties in the now-defunct case against President Kenyatta.

A five-judge Bench of the ICC Appeals Chamber ruled that the NGO should make their submissions as a friend of the court, known in legal parlance as amicus curiae, by Friday this week.

“The Africa Centre for Open Governance may file observations on the topics listed in the above- mentioned request of no more than15 pages,” the Chamber, led by ICC President Silvia Fernández de Gurmendi, said.

ICC Prosecutor Fatou Bensouda has appealed a decision by the Trial Chamber declining to refer Kenya to the ASP over alleged failure to disclose President Kenyatta’s financial and phone records.

A successful appeal could resurrect the crimes against humanity charges against the President as Bensouda is threatening to press for new charges if her evidence improves.

“Mr Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she stated as she withdrew the case last year.

In their ruling, the judges said that Africog can file observations explaining the context in which the alleged non-cooperation occurred.

They will also highlight the relevant statutory provisions under Kenyan law relating to cooperation with the ICC.

Bensouda, Attorney General Githu Muigai, victims’ lawyer Fergal Gaynor and Uhuru’s lead counsel Stephen Kay have up to Friday next week to respond to Africogs’s petition.

Africog has had a series of legal battles with Kenyatta and Deputy President William Ruto that climaxed in 2013 when they put up a spirited fight to have Kenyatta’s presidential victory nullified.

In an eloquent presentation made by lawyer Kethi Kilonzo, Africog teamed up with Cord to try and prove that the presidential vote was openly rigged.

Later that year, Africog thwarted Ruto and journalist Joshua arap Sang’s bid to have their trial moved to Kenya or Tanzania.

In the ongoing appeal, Bensouda argues that the Trial Chamber erred in law by failing to automatically refer Kenya to the court’s 122 signatory states known collectively as the ASP – having initially made the requisite factual finding.

However, Attorney General Githu Muigai dismissed the appeal, terming it an abuse of court process.

The AG has insisted that Bensouda was transferring her investigative responsibility to the Kenyan government and is now pushing for punitive action against the country.

NAIROBI, Kenya — On a chilly Saturday 24 years ago, political leaders angered by the dictatorial rule of Kenya’s President Daniel arap Moi led 6,000 protestors to a rally at a dusty sports field north of Nairobi’s city center. Speaker after speaker demanded political reforms, democracy, and transparent government, driving the crowd into a frenzy. Then security forces moved in and pushed people back with batons and tear gas. Riots followed, first across Nairobi and then nationwide. After a four-day crackdown, 20 people were dead and most of the opposition leaders were under arrest.

That day, July 7, 1990, became known as Saba Saba — “seven seven” in Kiswahili. In Kenya, it is still synonymous with violent suppression of popular protest against political despotism. This year, Saba Saba and all of its connotations are on Kenyans’ lips again. Opposition leaders once more called their supporters to a rally this July 7 in central Nairobi, where grievances ranging from soaring costs of living to rising insecurity were vented under the watchful eye of 15,000 armed police summoned to keep the peace. Fears the rally would turn into a riot were so deep that people fled flashpoint towns, diplomatic staff and private sector workers were encouraged to work from home, and shops stayed shuttered.

In a democracy like Kenya there should be room for protests and dissent. But six years after post-election violence here killed 1,200 Kenyans, the country is once again girding itself for violence as dangerous political divisions in what is supposed to be East Africa’s most stable country are widening again. A recent spate of terror attacks is only fueling the political fire. In a country where partisan affiliations are driven by tribe, political conflict pushed by self-serving politicians could result in deadly ethnic conflict. While the July 7 rally passed peacefully, hostility between supporters of rival leaders remains high.

Mistrust between two groups stretches back to the birth of independent Kenya in 1963. On the one side are President Uhuru Kenyatta’s supporters, drawn from his Kikuyu tribe, the country’s largest ethnic group and the most politically and economically powerful. On the other, the Luo, a tribe from the country’s west, are massed behind Raila Odinga, one of the original Saba Saba firebrands and now leader of the opposition Coalition for Reforms and Democracy (CORD). The Luo complain that they and other tribes have been marginalized since the Kikuyu took power in the 1960s. Luo leaders have since played second fiddle to presidents from other tribes, never quite reaching the top spot. The ill-feeling between the Kikuyu and the Luo, with allied tribes, erupted into violencefollowing the 2007 elections.

The worry was that Monday’s Saba Saba rally could have sparked the fire again, that politically-driven scuffles could swiftly morph into deadly intertribal attacks. Church leaders,business groups, foreign envoys, and newspaper columnistscalled for calm.

Kenya can ill afford to stumble into unrest. If the situation really explodes the biggest beneficiary would be al-Shabab, the Somalia-based al Qaeda affiliate.

Kenyatta’s 15-month-old administration faces criticism over its handling of myriad internal and external crises. The most egregious, many Kenyans say, is the inadequate response to a burgeoning threat from terrorism. In September 2013, 71 people died when al-Shabab militantsattacked the Westgate mall. But violence has picked up recently. On May 16, 10 people were killed in blasts at a Nairobi market. Seven people died two weeks before that in explosions on busesin Mombasa and Nairobi. Iin June and the first week of July alone, more than 100 people died in five attacks on three towns along Kenya’s coast. At least 29 died in two assaults against Hindi and Gamba, two towns on Kenya’s northern coastline on July 5.Similar raids killed 69 people over eight days in June in and around Mpeketoni town, in Kenya’s coastal northeast close to the Lamu archipelago. In Mpeketoni, Hindi and Gamba, non-Muslims were singled out and executed. Businesses including hotels, banks, and gas stations were torched. Al-Shabab claimed responsibility for all these attacks, and says they will halt their offensives only when Kenyan troops leave the African Union force fighting Islamists in Somalia.

Kenyatta, however, has insisted the gunmen were not Islamist terrorists, but local political networks opposed to his government.

Many analysts — and average Kenyans — say that intertribal clashes and political violence would be a deadly distraction for a government that should be focused on stopping al Qaeda’s east African proxy. But the political elite in Nairobi may not have their priorities in line with what is best for the country.

“First; that there is simply no genuine political will to respond to the increasing insecurity threats,” wrote Peter Aling’o of the Institute for Security Studies in Nairobi, in a recent op-ed. “And secondly; that insecurity has become a tool for political manipulation by the government, state security agencies and opposition groups.”

This politicking was most obviously on display when Kenyatta went on live television on June 17, two days after the Mpeketoni raids — which al-Shabab had already claimed as their own. The attack, Kenyatta said, was the work of “local political networks,” not the Islamists. Regional police made similar pronouncements after the Hindi and Gamba assaults on July 5.

In the president’s interpretation, the attack on Mpeketoni, a Kikuyu enclave, was aimed at terrorizing his tribesmen to leave the coastal region where the indigenous tribes, allies of the Luo, claim they were given land illegally. Those coastal groups largely side with Odinga’s party. To many Kikuyus, Odinga is hell-bent on igniting an ethnic war so that he can get into power either in some sort of national unity government, or simply through a revolution that overthrows Kenyatta. Mpeketoni was the first salvo of that war, they say. (Odinga has denied this).

The blame game over Mpeketoni brought otherwise latent anger between each side of Kenya’s political-ethnic divide into the open. Following Kenyatta’s television address, commentson Kenyan media websites erupted into bald stereotyping of tribe and ethnicity. Facebook and Twitter feeds took dark turns. Threat and counter-threat flowed. A leaflet circulated in some areas demanding all Luo leave within seven days.

“The potential for violence is very much present,” says Gladwell Otieno, head of the Africa Centre for Open Governance and a former chair of Transparency International Kenya. “The ethnic rivalry and hostility card feeds into Kenyatta’s narrative and keeps his base heated up and supporting him. But it’s a very dangerous game to play. At what point do things spill into violence that probably cannot then be controlled?”

There is little evidence that political militias have been readied for mass violence as they were around the 2007 elections. But sporadic violence could persist over months, spreading security forces thinly when they should be focused on tackling al-Shabab. Ethnic divisions would become even more deeply entrenched. Rumbling domestic political violence, with further Islamist terror attacks, could chill the confidence of foreign investors, who have so far largely ignored rising insecurity. Tourism, which drives 10 percent of Kenya’s economy, is struggling, with visitor numbers down 12 percent following the Westgate attack and hoteliers reporting mass cancellations as terror strikes increased in 2014. A shaky economy and high unemployment are fertile ground for political agitators and radicalizing imams alike. Al-Shabab could find its ranks swelled, and will certainly celebrate the Kenyan government’s insistence that the country’s greatest threat is not global terror, but political enemies within.

Whether violent skirmishes break out or not, Kenya is again starkly divided, at a time when it needs unity to cope with the difficulties it faces. Without that solidarity, the only ones who benefit are al-Shabab and, arguably, Kenya’s political elite. Strange bedfellows indeed.

Christena Dowsett/Getty Images

Kenya‘s most prominent anti-corruption activist has warned that the country is “at a tipping point” as terrorist threats, declining revenues from tourism, and a lack of confidence in the government pile pressure on its leadership.

John Githongo, who exposed a £500m corruption scandal that implicated the former Kenyan president Mwai Kibaki and several senior politicians, said government corruption remained a serious and deepening problem.

Speaking to the Guardian at the UN Forum in London last week, Githongo said: “One feels concerned that we could tip either way, the politicians so far have not shown a competence to be able to handle all these balls in the air at the same time.”

A series of attacks have rocked Kenya in recent months, calling into question the government’s ability to stem terrorist activity. Security measures such as roadblocks and pat-downs are common, but Githongo says people fear the government is not doing enough to protect them.

“Kenyans have never been as insecure as they are right now, generally speaking,” he said. “We’ve never had less confidence in our government’s ability to deal with this insecurity – that is the most serious problem.”

Kenya’s president, Uhuru Kenyatta, has said the tourism sector, a crucial pillar of its economy, was “on its knees“, after western governments issued travel alerts urging foreign visitors to stay away from the country’s famous national parks and beaches for fear of terrorist attacks.

“Nairobi is a slightly tense place now,” Githongo says. “This tension is borne partly out of the violence we had in 2008, and this sense that with all that’s going on with al-Shabaab, with the government not seeming to know what it’s doing – making clueless statements, falling out with its traditional friends, the US and the UK – this gives you this sense that something bad is bound to happen.”

Pressure from Kenya’s traditional western allies to prosecute Kenyatta and his deputy, William Ruto, at the international criminal court over violence in the aftermath of the 2007 presidential elections has led Kenya to tighten diplomatic and economic ties with China.

At the end of a three-day visit to Kenya in May, China’s premier, Li Keqiang, agreed to finance 90% of a $3.8bn railway that will link Mombasa with Nairobi, and eventually connect Burundi, Rwanda, South Sudan and Uganda.

“Ever since we started engaging our Chinese colleagues in business, transparency has crashed, and that is causing considerable concern vis-a-vis corruption and its potential implications with regards to governance problems,” Githongo said.

But the country’s new constitution, a booming tech industry, discoveries of natural resources, a growing middle class, and investment in infrastructure, health and education are reasons to be optimistic about the future, he says.

“The new constitution is a sign that Kenya is moving in the right direction,” Githongo said. “But, at the same time, we’re seeing very important elements, or chunks, of this constitution being undermined very deliberately by the current government.”

Githongo, former head of the Kenya chapter of Transparency International, previously led the government’s anti-corruption taskforce. His struggle to expose political corruption is the subject of a book by British journalist Michela Wrong, which chronicles his dramatic flight from Kenya after he received death threats from people involved in his investigation.

Githongo says courageous Kenyans who speak out against the government, and ridicule its leadership, inspire him. He names the photojournalist Boniface Mwangi and rapper Juliani as young, politically aware people whom he admires.

Official regional integration in east Africa, long promised through multilateral organisations such as the East African Community, has stalled, but is beginning to happen informally, Githongo says.

“That [official] process is now stopping, partly because the integration is happening organically – in terms of business, in terms of free movement of people and goods and ideas,” he said. “At a people level, integration is moving way faster than the government level – governments are running to keep up.”

The quality of governance across Africa is increasing, says Githongo, who sits on the boards of the Africa Centre for Open Governance (Africog) and Freedom House, a press freedom and human rights watchdog.

But slippages in the fight against corruption have occurred in some African countries, he says, naming South Sudan, Central African Republic and the Democratic Republic of the Congo as states that have scaled back anti-corruption efforts.

Multinational corporations operating in the continent often fail to pay taxes, and trade within themselves, Githongo says, limiting revenues received by African governments.

“When one is talking about hitting the issue of tax avoidance and transfer pricing, one will find that the same institutions crop up when looking at terrorism finance, human trafficking, money laundering, drug trafficking,” he said, noting that an investigation into these institutions “could be the beginning of something important”.

Githongo is driven by the influence that corruption has on bigger problems. “I look at highly corrupt, fast-growing countries: Indonesia, Thailand, Kenya – very volatile; all the time [there are] coups, deaths, demonstrations.

“Corruption is ultimately causing poverty. It’s poisoning our politics. It’s increasing the level of violence in our politics. It’s causing Kenya – despite all our growth, the shiny buildings, all the nice cars – to head towards failure.”

Kenya may have bitten more than it can chew as far as some of the amendments it is proposing on the ICC Rome Statute at the ongoing Assembly of State Parties are concerned.

Kenya has not only failed to give the relevant three-month notice to amend the statute, the amendments – to be discussed this afternoon and on Monday afternoon – go to the very heart of the statute.

The dearest amendment to Kenya’s heart- entrenchment of immunity for sitting heads of states- is also the dearest to the statute.

Article 27 which Kenya wants amended provides for irrelevancy of official capacity. It says that the statute “shall apply equally to all persons without any distinction based on official capacity.”

To avoid any doubts, Article 27(1) expressly states that “official capacity as a Head of State or Government, member of government or Parliament, elected representative or a government official shall in no case exempt a person from criminal responsibility.”

For further avoidance of doubt, Article 27(2) adds: “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person.”

Kenya however wants this Article amended by including Article 27(3) to read: “Notwithstanding paragraph 1 and 2 above, serving heads of states, their deputies and anybody acting or is entitled to act as such may be exempted from prosecution during their current term of office. Such an exemption may be renewed by the court under the same conditions.”

Kenya argues that the Article as it currently stands “goes against the basic tenets of international law pertaining to privileges and immunities of government officials.” But civil society groups supporting ICC think otherwise.

“Immunity for government leaders before the ICC is contrary to the basic principle that no one should be above the law. We should not deny victims and their families justice because their tormentors hold high political positions,” Georges Kapiamba, President of the Congolese Association for Access to Justice said on Monday.

“Human rights abuses by governments and armed groups remain one of the biggest challenges confronting people in Africa,” George Kegoro, the executive director of International Commission of Jurists adds.

He says the ICC serves as a crucial court of last resort. Africog’s Gladwell Otieno said the amendment to exempt government officials contravenes everything the Rome Statute stands for.

“The principle of equality before the law would be violated if some accused are allowed not to attend trial based on status,” says Otieno.

She says the amendment is worsened by the fact that both Uhuru and Ruto were aware of their indictment when they offered themselves for presidency in the March 4 polls.

Besides Article 27, Kenya is also seeking amendments to Article 63, Article 70, Article 112 and even the preamble of the statute.

Article 63 provides that “the accused shall be present during trial.” It also provides for excusal of continuously disruptive accused from attendance in “exceptional circumstances”. Kenya argues that the statute does not define these exceptional circumstances.

It wants the article amended to say that “an accused may be excused from continuous presence in court after the chamber satisfies itself that exceptional circumstances exist, alternative measures have been put in place and considered, including but not limited to changes to the trial schedule or temporary adjournment or attendance through use of communication technology or through representation of counsel.”

Kenya wants the Article to also include other sub articles saying absence shall be considered on a case-by-case basis and that such shall only be granted if the trial chamber satisfies itself that the exceptional circumstances exist.

On Article 70 which talks of “offenses against the administration of justice”, Kenya wants it stretched to include the prosecutor as a possible culprit. Both Uhuru and Ruto’s defence have severally made multiple allegations against the prosecutor.

“This particular Article presumes that such offences save for 70(1)(f) can be committed only against the court. Noting the current situation in the Kenyan cases especially Trial Chamber V (b), this article should be amended to include offences by court officials so that it’s clear that either party to the proceedings can approach the court when such offences are committed.”

On Article 112, Kenya complains that the Office of the Prosecutor has been evading oversight citing Article 42 which guarantees its independence. Kenya wants the statute amended to expressly subject OTP to Independent Oversight Mechanism.

“It is proposed that IOM be operationalised and empowered to carry out inspection, evaluation and investigations of all the organs of the court,” Kenya said in a November 7 proposal send by Deputy permanent representative to the UN, Koki Muli Grignon.

On the preamble of the statute, Kenya wants it amended to reflect complementarity at regional level as well. Currently, it says the “ICC shall be complementary to national jurisdictions.”

Kenya says the amendment is inspired by the African Union resolution, which urged that the cases be handled nationally or regionally.

In addition to these actual amendments to the statute, Kenya is also seeking amendment to Rules of Procedure and Evidence. Contrary to Foreign Affairs Principal Secretary claims that AU/Kenya has not sought option of trying the accused through video-link, Kenya has made a specific proposal on video-link.

On November 4, Kenya’s permanent representative to the UN Macharia Kamau proposed an amendment to Rule 134 to synchronize it to the proposed amendment to Article 63.

The proposed amendment basically provides for option of carrying trial via video-link or through representation of counsel with the chamber’s approval.

Of note however is that Kenya’s proposal covers “entirety of trial”. This is where Kenya has differed with other proposals for the same including the UK which floated its own version of amendment reading: “In accordance to Article 63, paragraph 1, and after hearing the participants and the Registry, a Chamber may allow the accused to be present by means of video technology for part or parts of the trial.”

Two other amendments on Rules are lined up for discussion and adoption. Two of them have emanated from the court and have been subjects of long-running discussions with relevant committees of the court in following a road-map designed for amendments.

These two are amendments to Rule 68 and Rule 100. While the latter may serve to help Uhuru and Ruto if adopted, the former may work against them.

Currently, Rule 100 provides for trial away from the Hague but with approval of ICC presidency (three judges at the apex of the court), relevant chamber and support of two-thirds of all ICC judges.

The process is however complex and involves parties to the case (defence and prosecution) or “majority of judges” writing to the presidency first.

The presidency then consults the views of the relevant chamber before consulting the state which wants to host the trial. Thereafter, the plenary of the ICC judges take a vote. At least two thirds of judges must support the idea.

According to ASP’s Working Group on Lesson’s Learned (WGLL), this rule which is aimed at enabling the defendants – who are not subject to a warrant of arrest – to conduct their public and private life with minimum disruption is illogical and unfair.

Previous attempts to relocate the trial venues have “encountered such complex procedural challenges, linked to the current formulation of rule
100, that the process could not be pursued further. ” Ruto tried it earlier in the year and failed.

The proposal is to amend it to strip the plenary of judges of its powers to initiate or authorize the relocation of trial from the Hague.

The argument is that the plenary cannot take part in determining a matter of a case “that is not managed by and not known to them in an exhaustive and intimate manner.”

The matter will be determined by the relevant chamber judges together with the presidency which represents all other judges. Unlike the present case, the amendment would open door for appeal by either party.

On July 11, Ruto lost a motion to hold the trial in Kenya largely owing to the ‘tyranny of the plenary’. This is despite all the three judges in the Ruto case, who knew the intricacies of the case voting ‘yes’. The matter could also not be reversed even after judge Eboe-Osuji filed a motion to vacate the plenary vote citing gross procedural flaws.

If the amendments were to pass and Ruto re-applied to relocate the trial to Nairobi, he would most likely have his way as all judges in his case supported it in July.

However, amendment to Rule 68 is quite something else. And Kenya is bitterly opposed to the amendment. The amendment will give the prosecution more room to introduce prior-recorded testimony during trial.

Currently, the Rule provides for two instances where prior-recorded testimony can be introduced.

The two are when a witness who gave a previously recorded testimony is not present before the trial chamber but both parties to the case had the opportunity to examine the witness during the recording or if the witness present before the trial chamber, is not opposed to introduction of such recorded testimony and is ready to be examined on it.

The amendment proposed by the court but which Kenya believes was initiated by the prosecution wants to add three additional instances.

These are; where the recorded evidence goes to proof a matter other than the acts and conduct of the accused, where prior-recorded testimony comes from a person who has subsequently died, presumed dead or unable to testify orally and if the prior-recorded testimony comes from a person who has been subjected to interference.

According to ICC’s Working Group on Lessons Learned (WGLL) chaired by court Vice President Judge Sanji Mmasenono Monageng, the amendment is “intended to reduce the length of ICC proceedings and streamline evidence presentation.”

They also say the amendment reflects practice in international criminal tribunals. The group says the proposal received “broad support” from major stakeholders.

“We are totally opposed to this amendment. We believe it is an attempt by the prosecution to rescue their falling case through the back door. We will be pushing for its rejection at the ASP,” Evans Monari, a lawyer said.

The prosecution has severally claimed that several Mungiki leaders who participated in the post-election violence were neutralized prior to the commencement of the cases. It is not clear whether the prosecution had taken statements from them or whether the Waki Commission had.

If these individuals, and others who may not be able to attend the trial, recorded statements, they can be used against the accused at trial.

These two amendments have the best chances of passing through at the ASP because they have been ventilated since March and the necessary consensus and legitimacy has more or less been achieved. This is unlike the other proposed amendments to either the rules or statute which have been floated last minute.

Judge Monageng, who is also ICC’s first vice president has complained about the haste in which the other amendments have been processed. His boss, Judge Sang reiterated the same when he addressed the ASP on Wednesday pleading with it not to pass amendments in haste.

The proposal to amend the Rule 134 to include trial via video link was communicated to the court on November 1. The court was given five days (until November 6) to provide views on the legal aspects of the amendment.

The letter to the court was signed by Ambassador Hakan Emsgard (Sweden), the current chair of ASP’s Study Group on Governance. It was addressed to Judge Monageng in his capacity as chair of ICC’s Working Group on Lessons Learned (WGLL).

In his reply of November 4, Monageng wrote: “The proposal has been communicated to the court on an urgent basis. Therefore, the court has not been able to engage in the regular consultation process for proposed amendments.”

He said other amendments (on rule 68 and 100) have undergone “rigorous and thorough review” using a road-map agreed at the last ASP in November last year.

The road-map entails proposals being sent to the Study Group on Governance and to the Advisory Committee on Legal Texts (ACLT). It would also involve Monageng’s-chaired WGLL and another body called Working Group on Amendments (WGA).

Ultimately, the proposal to amend the rules must be in place two months before the commencement of the ASP meeting. Monageng said the late submission of the proposals meant they missed the input of judges of WGLL, ACTL, other judges of the court, representatives of the prosecutor, registry and other counsels who sit at ACTL.

“In light of the above, I am only in position to convey a preliminary analysis of the proposal,” the judge said in the letter.

In his remarks, Monageng cautioned those pushing for amendments to ensure that they align them to the statute. He reminded them of Article 51(5) of the statute which says in case of conflict between the statute and the rules, the former will prevail.

He reminded them that Article 63 of the statute says “the accused shall be present during the trial”.

“If the amendment proposal were not consistent with the statute, the court would be compelled not to apply the rule in accordance with Article 51(5) of the statute,” he warned.

Monageng appeared to suggest that it would be in vain to amend the rules without amending the statute. Although Kenya has proposed the amendments to the statute, their chances of them being settled in this ASP are very low.

In the last few days at the ASP, many state parties including Norway kept harping on the importance of amendments being processed through the WGA. Many states are also alive to the fact that most the amendments, although designed to address the Kenyan conundrum, has long term effect on the court and other cases.

Many stand to be surprised if Kenya manages to chew what it has already bitten with these multiple amendments, proposed at short notice and with far-reaching implication to international law.
– See more at: http://www.the-star.co.ke/news/article-144720/kenyas-bid-amend-rome-statute-likely-fail#sthash.fuNnKO7L.dpuf

Kenya should stop piling pressure on African states to back amendments to the Rome Statute, civil rights activists gathered at The Hague have said.

The activists said Kenya’s plea on the proposal for amendments to allow for the immunity of sitting presidents from prosecution was in vain.

Some 122 State parties to the Rome Statute meeting in The Hague are expected to deliberate on the proposals.

Ms Gladwell Otieno of the Africa Centre for Open Governance (Africog) said that Kenya was aware of the difficulties in amending articles 134 and 27 of the Statute.

“Majority of African states are against the proposal by Kenya and this means that it will fail,” Ms Otieno said.

Mr George Kegoro, the executive director International Criminal Justice, said that a significant number of African states did not support the possibility of amending the articles.

He said Namibia was the only state that came clearly to support the amendment that no sitting head of state should be prosecuted while in office.

Mr Kegoro, however, added that the discussion was inaccurate because the indictments are against persons who were accused before they became heads of state.

SUPPORT TRIALS VIA VIDEO LINK

Majority of states at the Assembly supported UK’s move to have the court accept Kenya’s trials via video link from Nairobi.

(Read: ICC: Kenya on the spot over trial via video link)

Foreign Affairs Cabinet Secretary Ms Amina Mohammed applauded the move by majority of African and international leaders to support amendments to have trials on video link.

“ICT is the future of our nation and we should not be denied the right to use modern means during the trials,” Ms Mohammed said.

She added that the proceedings on amendments the previous day were historic.

“By supporting our head of state, we are not running away from justice but we are cooperating with the court to find the best way to the entire problem of the trials,” she said.

However, the prosecutor for the International Criminal Tribunal for the former Yugoslavia Mr Serge Brammerts said the move on Rome Statute amendments would not be effective.

He added that his belief in international justice was less certain and the ICC should consider a simpler approach to crimes against humanities.

“It would be better for the ICC to take the approach of creating local tribunals so as to tackle the local cases in the best way,” Mr Brammerts said.

He added that a number of problems and limitations such as global impacts of international indictments may be a blow to respective countries whose heads of state are on trial.

In an article on Sunday the 29th of September 2013 in the Daily Nation entitled “Attack will draw West, Kenya closer” former US Assistant Secretary of State Jendayi Frazer spoke at length about why the cases at the ICC should be dropped in order to aid the fight against terror in the country.

Her basic premise was that it is not feasible to have the Head of State and his Deputy engaged in the ICC process so deeply while maintain an effective war on terror – she uses the week off from trial that H.E. William Ruto requested as proof of this.

She further argues that the ICC cases constitute a “distraction” from addressing security concerns and that as a result the United States should help Kenya extricate itself from the process for the betterment of the war on terror.

Kenyan foreign policy has been ad hoc and arbitrary at best, now defined by the ICC process and the use of the African Union and general Pan – African sentiment to rally support against the ICC in order to garner sympathy as a form of ad hominine defence. The politicization of the debate has transformed a legal issue into a political one.

The fundamental assumption or premise of this argument is flawed. Jendayi Frazer works under the assumption that the mere presence of the President and Deputy will embolden the operations of the Security sector.

This is a gross oversimplification of the challenges facing the war on terror and more importantly completely ignores the role of bad governance in creating the conditions that allowed the Westgate tragedy to take place.

Our borders are well known to be porous easily facilitating the flow of small arms and individuals with possible links to Al-Shabab to enter our country.

It is telling that some of the most insecure areas in our country are those nearest our borders which also happen to be those with a high concentration of weapons.

The proliferation of these small arms is aided by corrupt border officials and has links to local wealthy businessmen and politicians.

The illegal trade of commodities through the same conduits also benefits the same people. Therefore we cannot simply stop the flow of these arms through increased security measures but by a major shift in governance and the eradication of corruption that feeds these porous borders.

It must become increasingly difficult to find a corrupt official who will look the other way when you bring in small arms, and these dealers must not have links with the local elites.

Our security sector is in dire need of reform, a fact demonstrated by the lack of professionalism shown by the security forces during the Westgate tragedy and the list of glaring questions that have arisen over their conduct during the siege.

We have been promised an inquiry into the goings on at the shopping mall, but this is rhetoric we have heard before often used as a delaying tactic to protect perpetrators from justice.

This includes crimes carried out by the security sector including various human rights abuses and extra judicial killings including the Wagalla massacre the PEV of 2008.

As a testament to the impunity and protection elites have created for themselves the NIS focuses on civil society actors who bring up these issues rather than shedding light on what really happened during these events, in which they were complicit.

Income inequality and the presence of a large number of uneducated, unemployed youth promotes easy radicalization as illustrated by the PEV, the strength of the MRC and the general insecurity in the country not to mention providing a recruiting platform for Al-Shabab.

The country has become criminalized with political, business and criminal elites working in tandem for their own ends. Hence our institutions are being eaten from within, we are naturally insecure and the ICC process has not caused this.

On the contrary the ICC process represents a threat to this status quo, an external force that can impose accountability for the worst most heinous crimes committed on our soil since independence.

We cannot have justice and reconciliation locally from our current system of governance. Half of the country is of the opinion that the courts were compromised and that the last General elections were stolen, and the recent illegal suspension of Chief Registrar with Gladyce Shoellei have not helped matters.

The security sector is implicated in the very crimes which it is supposed to investigate and has consistently failed to do around political violence – for example the clashes around the 1992 and 1997 polls. Parliament has rejected the establishment of a local tribunal three times during the last government the two most powerful men in the country stand accused of complicity in the PEV violence.

Add this to the nature of governance in our country and its track record with impunity, the plight of IDP’s in Kenya and it is difficult to see how she envisages this government dealing with the perpetrators of the PEV.

Certainly low level perpetrators can be tried and some form of justice achieved but this misses the wider context in which the Westgate tragedy was allowed to occur.

The impact of the events of last month are tragic but they must be seen in the same light as the Wagalla massacre and PEV that has accompanied the advent of the multi-party system. These events are all symptomatic of poor governance. Abdicating ourselves from the ICC process simply continues the cycle of impunity and means that the nation will have missed a great opportunity to strike a blow against this culture.

Fixing corruption, impunity and creating good governance ostensibly fixes the conditions that allowed Al- Shabab to launch the Westgate attack and the similar conditions necessary for political violence to take place.

The recommendations of the TJRC that seeks to address historical injustices needs implementation for justice to be achieved. There is no reason to believe that the nation can suddenly begin implementing the recommendations of various commissions such as the aforementioned TJRC report the Ndungu report and others.

Jendayi Frazer calls for enhanced US support for the security sector, but without good governance and the track record of misappropriated funds in the past it is unlikely this will change things.

American support to help Kenya rid itself of the ‘distraction’ of the ICC cases will not result in greater security, indeed it will be a victory for impunity as it is unlikely that the local system can prosecute these crimes. Governance remains the central problem and this is inexorably linked to impunity.

If we fix governance we will no longer have porous borders or corrupt officials manning these borders and an Intelligence service far better equipped to counter threats from Al-Shabab. We must harness the togetherness shown in the wake of the attack exemplified by the Twitter tag WEAREONE to fight impunity and call for better governance, to hold our government accountable for what it does and only then will we effectively address the malaise that allowed armed gunmen to storm the shopping mall.

The reconciliation efforts which Jendayi Frazer suggests can only be effective once justice for politically instigated violence and sweeping reforms to address the structural causes of bad governance have yielded fruit.

By James Gondi

The writer is a Programme Advisor at the Africa Centre for Open Governance
– See more at: http://www.the-star.co.ke/news/article-139972/why-westgate-about-governance-cot-security-or-icc#sthash.ojt3DZcn.dpuf

Summary

Full results of all 6 elections not yet released, prompting suspicions of foul play.
This casts doubt on president’s authority, the Supreme Court’s judgement and the behaviour of election monitoring missions who gave the elections a fairly clean bill of health.
Only 56% of Kenyans believed the vote to be free and fair – Infotrak.
It appears that 1 million more votes were cast in presidential election, than in each of the others, giving the IEBC a headache in trying to reconcile them.
Issue needs to be resolved urgently or the consequences will be serious.

The failure of the electoral commission to release the full results of all six elections is prompting more suspicion of foul play

Although Kenya’s Supreme Court and international observers formally accept the legitimacy of the presidential election, government officials and activists are raising fresh doubts about the number of valid votes cast in the polls on 4 March. For the sceptics, the most glaring flaw is the failure of the Independent and Electoral Boundaries Commission to release the full set of results for all six elections contested on that day. Critics say that the results do not add up and that the IEBC is desperate to reconcile or massage them before making them public.

Unless these basic issues can be resolved, they will undermine President Uhuru Kenyatta’s political authority and challenge the Supreme Court’s endorsement of the result within three weeks of its announcement. In the longer term, such doubts could prompt a re-evaluation of foreign election monitoring missions in Africa. Some on the European Union mission, for example, had serious doubts about the integrity of the process, but it quickly endorsed Kenyatta’s election. By that stage, the EU had contributed more than 50 million euros (US$66 mn.) to the cost of the elections, reckoned to total over $400 mn. One diplomat in Nairobi joked that it was a case of ‘responsibility without power’, meaning that the EU would be blamed for a messy result due to its financial involvement but had no power to change anything.

The IEBC found that a million more votes were cast in the presidential election than in any other, Africa Confidential has learned, although all were held on the same day. Opposition and civil society activists have raised questions about such discrepancies for several months.

An unnamed electoral commissioner quoted in the Nairobi daily The Star appears to confirm their suspicions: ‘We are having sleepless nights reconciling the presidential results and those of the other positions. Over a million votes must be reconciled with the others and if the requirement is not changed, then it will cast the IEBC in a negative light.’

Kenyatta’s supporters reject the concerns, arguing that it is natural that voters were more worried about selecting the national president than candidates for other positions. Few neutrals see this as credible. In the past, dramatically higher turnouts in presidential elections than in others on the same day have been taken as a sign of ballot-box stuffing.

It seems far-fetched that over a million Kenyans would queue for several hours to vote and then ignore all of the ballots apart from the presidential one, especially since there was great excitement about the contests for new, powerful positions such as senator and governor. None of the many election observers we asked said they had seen significant numbers of voters putting a ballot paper in the presidential box but not the others.

A smoking gun
There are pressing political reasons to resolve this discrepancy. The losing parties – particularly supporters of Kenyatta’s main rival candidate, Raila Odinga – would say that this was the ‘smoking gun’ that proved the election was rigged. That would further reinforce the sense of marginalisation among the Luo and Luhya peoples. Civil society activists, such as Maina Kiai and Gladwell Otieno who lodged a petition against the results, would step up efforts to prove the elections were fraudulent (AC Vol 50 No 7, A reform deadline for the rivals & Vol 54 No 6, A very British coup). The public is wavering. A recent opinion poll by Infotrak found that only 56% of Kenyans believed the election was free and fair. That could fall much further if the IEBC fails to resolve the arithmetical and voting discrepancies.

The flaws may not be all on one side. Jared Okello, a petitioner at the High Court in Kisumu and a candidate for the Forum for Democracy-Kenya (Ford-Kenya), claimed that Odinga’s CORD benefited from the votes of dead and bedridden people. One of Okello’s witnesses, John Omollo, said the Presiding Officer at Kobura Primary School polling station campaigned for the local member of parliament, Fred Outa. Odinga and his party won over 90% of the vote in Kisumu in the presidential and parliamentary polls. Their critics say their political dominance allows them to twist the vote in the way that Kenyatta’s supporters can in their stronghold of Central Province.

With allegations of vote-rigging on both sides, the IEBC’s credibility is on the line. If large-scale discrepancies are discovered, its Chairman, Issack Hassan, would face heavy pressure to resign; domestic and international activists would call on the government to disband the Commission and investigate seriously the flaws in vote-counting and tallying.

The impact would not stop there. Organisations that validated the result would also come under fresh scrutiny. The Supreme Court surprised many Kenyans when it unanimously rejected petitions against the results, despite evidence of irregularities. If the Court failed to spot 1,000,000 more votes being cast in the presidential election, its verdict – and its motives – would once again be under the spotlight. International donors and election observers are also nervous. A massive discrepancy in the results would prompt questions about why they gave the elections a clean bill of health without seeing the full results.

Failures all round
Many of the processes that Western governments have supported have failed to guarantee credible polls. Almost all the new technology introduced failed to work. If it turns out that the basic counting and tallying process was also flawed, activists and politicians in Britain, Canada, Germany, Sweden and the United States will want to know what happened to their money. If governments review electoral support missions, the role of the International Foundation for Electoral Systems will come under scrutiny. IFES is a US-based organisation that donors often fund to supply technical assistance to electoral commissions. It provided ‘a range of technical assistance’ to the IEBC from 2011 onwards. Despite several unanswered questions about the elections, the Foundation invited Hassan to speak in Washington on 12 June.

Although the meeting was billed as an opportunity to learn lessons, IFES is vulnerable to charges that it is painting the elections as more credible than they were, perhaps to justify its own role. The publicity for the meeting declared that the elections were ‘widely regarded as credible’ and ‘free and fair’.

The absence of a confirmed set of results and the willingness of the international community to carry on regardless send a message to political leaders and electoral commissioners: if you wait for long enough to air your dirty laundry, there is a good chance that when you do, critical outsiders will no longer be watching (AC Vol 54 No 10, Diplomatic diversions, and Vol 54 No 12, Bringing it all back home).

Link to the story

Kenya’s Truth, Justice and Reconciliation Commission (TJRC) presented its report to the president of Kenya on May 21. It catalogues a lamentable history of serious human rights violations of Kenya’s people, from patterns of abuse during British colonial rule to those of each government since independence.

The TJRC was established as a response to the post-election violence of 2007-08, when political and ethnic strife caused widespread human rights violations, horrendous suffering by thousands, and deep international concern. With the support of the international community, both the Kenyan government and civil society sought to put in place measures of justice and reconciliation, and among them, an instrument to “address the past in order to prepare for the future”. In the TJRC Act, the legislators expressed eloquently their hope “to give the people of Kenya a fresh start, where justice is accorded to the victims”.

The report charts the execrable record of the police and armed forces as the principal instruments of serial and egregious violations; it establishes the role of presidents from Jomo Kenyatta onwards in leading governments that directed or were accomplices in those violations; it highlights classes of victims and marginalised groups who suffered the brunt of those abuses and the perennial causes of conflict in land and ethnic tensions. It makes a number of serious recommendations about access to justice, reform of institutions, investigations and prosecutions, reparations and exclusion from public office of a number of people. In brief, it looks like a report that could, under certain circumstances, offer the chance for serious reflection and a new beginning for Kenya.

“The government of Kenya has a golden opportunity to make of virtue of this unseemly and grievous situation”

But there is a serious problem. There are credible allegations of political interference from the president’s office and subsequent alterations made to the report without the consent of a number of the commissioners. There are additional problems, but this is by far the most grave. If true, these acts represent outrageous and shocking conduct.

Out of almost 2,000 pages of text, it appears that five paragraphs have been the subject of alterations. They focus on issues concerning land tenure – in particular, allegations about the conduct of former President Jomo Kenyatta, the father of current Kenyan President Uhuru Kenyatta. The original, unedited versions have been widely circulated in the last few days. The alterations have, therefore, proved pointless as the cat is well and truly out of the bag.

The problem lies both in the alleged interference of the president’s office and the national commissioners’ decision to succumb to it. Not only would such conduct be unlawful on both parts, but those involved would have also grievously damaged the prospects of serious consideration of the report, and fundamentally broken faith with the Kenyan people, whom they had sworn a solemn oath to serve. The TJRC should have been the shining light that led the way in restoring trust and confidence in office holders, institutions and government. Instead its report is mired in pointless controversy.

It would, however, be a fundamental error to suggest that these very serious problems deny the vast majority of the report any value. Rather, the question is: Who benefits if this report is not seriously analysed and if its recommendations are ignored? Last on the list of people who benefit are the Kenyan people.

The situation is grave, but it is not without remedy. The original report with unaltered text should have been submitted to the President on May 3. This is the report the TJRC should publish immediately, and have tabled in parliament within three weeks, according to the TJRC’s establishing law [PDF]. The government of Kenya has a golden opportunity to make of virtue of this unseemly and grievous situation.

Mr Kenyatta is presented in the first months of his presidency with a genuinely defining moment: Does he stand for strong institutions, free from interference, where government is a service to the nation, not a licence for abuse? Or does he stand for business as usual, the tragic business of the abuse of power that is rather well documented in the report? We will know the answer within days. He has the power to restore not only the integrity of the report, but indeed the hope of change in the hearts of all Kenyans.

By publishing and tabling the report of May 3, Mr Kenyatta has nothing to lose and a great deal to win, not least the admiration of his people who long for a state with credible institutions that protect their most basic rights.

Paul Seils is Vice President of the International Centre for Transitional Justice.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

GIKUNDI GITARI GIA GITHIRIKARI KIRIA KIRETWO AFRICOG, RIU KIRENDA THIRIKARI ITACUKAGIRIE IKINYA IRUMU MAABITHA ARIA MAREKURUHANIA NA CIEKO CIA NGUKUMIO NA UHUTHIRI MUURU WA WABICI. MURUGAMIRIRI MUNENE WA KIAMA GIKI GLADWELL OTIENO, OIGITE RIRI WATHANI URATWARWO MATURA INI, HARI BATA GUTIGIRIRA UTONGA WA BURURI NDURAHUTHIRWO UURU. OHO OTIENO OIGITE GATIBA NITARIIRIE CARARUKU MAKINYA MARIA ANDU ARIA MAUNGUMANIA MABATIE KUOERWO.
IHINDA INI OO RIU KIAMA KIU NIKIENDEKITHITIE UTHUTHURIA MUITHIRANU WAMBAGE GUTABANIO MBERE YA ABITHA OO WOTHE KUHINGURIRWO THITANGO CIEGEMAINE NA UNGUMANIA KANA UHUTHIRI MUURU WA WABICI.

Otieno Namwaya, Investigative journalist involved in the development of AfriCOG report “Kenya’s Drought Cash Cow” discusses his role in the development of the report on the Arid Lands resource management project.

KENYA: The Government has promised a transparent regime committed to efficiency in service delivery.

Information, Communication and Technology Cabinet Secretary Fred Matiang’i on Thursday stressed the need for the Government and Civil Society to work together to promote open governance.

Speaking at the conference held at Serena Beach Hotel in Mombasa yesterday, Dr Matiang’i reiterated the Government’s commitment to open governance.

“The Government should publish a self-assessment report approximately after every three months so as to enhance transparency and accountability. A hallmark of an advanced society is how they execute or manage their differences in opinion,” Matiang’i said.

African-led process

The forum was attended by representatives of African governments, Civil Society, donor organisations, academia and Open Government Partnership member states officials.

The forum brought together players in the government and non-governmental sectors to explore the operational and technological issues affecting open governance in Africa while seeking to chart ways of improving service delivery.

South Africa Deputy Minister of Public Service and Administration Ayanda Dlodlo said open governance in the region should be an African-led process.

He said commitment to open governance was already being seen in how African leaders hold each other to account on various issues.

Executive Director at African Centre for Open Governance ( Africog) and founding member of Open Government Partnership (OGP) Gladwell Otieno, lauded efforts by African governments to embrace transparency in running of public affairs.

She encouraged governments that have not joined OGP to do so to make the dream of open governance in Africa a reality.

“Participating countries should share their experiences with other governments and civil society groups so as to tackle the Open Government Challenge,” Otieno said.

Link to the story

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 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.

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

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 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.

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

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

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

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.

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 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

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.”

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