Several lawsuits seek to overturn key provisions of hard-won electoral reforms and threaten to poison the relationship between Cord and the IEBC.
This at a time new electoral chiefs have not been recruited and the general election is just 10 months away.
The Star has established at least three petitions consolidated at the High Court aim to nullify several key sections of the electoral laws — the product of painstaking negotiations and compromise.
The opposition alleges the IEBC is secretly behind some petitions to undo provisions sealing loopholes and preventing malpractice, including rigging.
Cord CEO Norman Magaya yesterday accused the commission of using third parties to block the law, saying the IEBC is used to “shortcuts to rig elections”.
“It's like IEBC is suing itself. The left hand is suing the right hand,” lawyer Magaya said of the petition in which the electoral agency is listed as an interested party.
“The IEBC knows this law compromises deals they made with Jubilee and they want to destroy it so they create an opportunity to eat and rig the elections.”
One petition, for instance, wants the High Court to declare unconstitutional the provisions requiring mandatory biometric voter identification and mandatory electronic transmission of presidential results.
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It also opposes an independent audit of the voter's register, claiming it will subject the commission to undue influence and pressure.
However, yesterday IEBC Communications manager Andrew Limo told the Star the commission is satisfied with the news laws.
The Election Laws (Amendment) Act 2016 was the product of gruelling negotiations between Jubilee and Cord following weeks of bloody opposition protests to force removal of commissioners.
Limo said the new law will impact political parties, not the commission, and expressed confidence the agency will deliver credible polls under the new electoral regime.
“We have no problem with the new laws. When it raises the budget, it's the national Treasury's responsibility to bridge the gap. When it gives no room for political party nominations disputes, it's the parties themselves that must mitigate the challenge,” Limo said.
In its internal strategy document, the IEBC warned the new laws fail to provide timelines for resolving disputes arising from nominations.
“The new law does not alter our timelines significantly, save for mass voter registration, which we were to conveniently hold in December,” Limo said.
“The other major issue is party primaries timelines and the requirement for the commission to conduct the same upon request...We are not aggrieved. It's doable.”
x head Who stands to gain?
The first petition was filed by voter Collins Kipchumba through lawyer Paul Nyamodi.
Two more petitions have been filed and consolidated with the first.
Nyamodi, a veteran High Court advocate, has represented the IEBC in high-profile petitions over the years. His involvement has heightened speculation about whose interests are served by undoing the laws.
In what has alarmed Cord's top brass, the petitioner opposes an independent audit of the voter's register, claiming it will subject the commission to undue influence and pressure.
During negotiations, Cord insisted on fresh voter registration and the independent audit was a compromise to clean up what they consider a flawed register.
Negotiators also agreed on mandatory biometric identification of voters and mandatory electronic transmission of presidential elections results, to reduce chances of rigging.
However, Nyamodi and his client argue Section 39, providing for electronic transmission of presidential results, failed to consider possible systems failure.
“Sole reliance on electronic transmission of presidential elections results will erode the legitimacy of the presidential election to the extent that any results declared after an election is conducted as directed by Section 39 (1C) of the Election Act ...would not stand up to constitutional scrutiny,” Nyamodi's petition says.
In 2013, the electronic results transmission system failed, forcing manual recount as political temperatures rose.
The massive failure was one of the grounds cited by opposition chief Raila Odinga in his petition challenging the election of Uhuru Kenyatta.
The petitioner says the IEBC is the exclusive constitutional custodian of the voter register and challenges the role of an independent firm to audit that register.
Early this month, the IEBC sought tenders for the audit but the advertisement was rubbished by Cord management committee co-chair James Orengo. The Siaya Senator also co-chaired the House team on electoral reforms.
Orengo said the IEBC wants to water down the agreed level of the audit, terming it “part of the ruinous mess that has characterised elections in Kenya twice in a row”.
“The eligibility required, as published by you, is so thin that it is evident you are not looking for the best people in business who must have an international reputation and experience,” he said.
The petitioner argues Section 10 of the new Act interferes with people's right to democratically elect their leaders because it says only people whose names and biometric data appear in the register may vote.
"It is against the requirement that conduct of elections should be designed to facilitate and not deny any person the right to participate," Nyamodi's petition reads.
It argues the system would disenfranchise eligible voters either if technology fails or if a voter is unable to produce fingerprints on election day.
“The following people are disenfranchised, firstly any registered voter who is desirous of voting in an election, and whose fingerprints are captured in the voter register, but on polling day, is unable to produce fingerprints for verification,” the petition says.