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February 18, 2019

Battered IEBC running out of time


Poultry keepers count eggs at the farmgate to manage pilferage. Dead voters won’t cast the ballot, but keeping them in the register is an opportunity for rigging. Awarding the ballot-printing tender to a ‘user-friendly’ firm could lead to excess supply for stuffing.

The Independent and Electoral Boundaries Commission became aware of these possibilities only after the National Super Alliance petitioned the courts. The decisions have since rendered the ‘Tharaka Nithi Model’ of vote rigging increasingly redundant.

The model allows the presidential election returning officer, and accomplices, the latitude to withhold some results from strongholds, which can then be puffed up to produce the ‘desired winner’.

The IEBC is arguably the battered child of the 2010 Constitution. But the battery does not make the agency a victim of power intrigues. Far from it.

The IEBC, a constitutional commission, is caught between serving the public interest, and a craving for political correctness.

The unlearning mentality of the arbiter may compromise the election. Its predecessors paid heavily for similar sins after the 2007 and the 2013 general elections.

The agencies were seen to be pandering to the whims of the Mwai Kibaki establishment, and the Jubilee regime.

The late Samuel Kivuitu, who chaired the defunct Electoral Commission of Kenya, was dejected after he was ejected. Former IEBC chairman Isaack Hassan went into seclusion after he was evicted from Anniversary Towers.

The IEBC is operating without regard to checks and balances that govern institutional relations in a well-ordered polity. Which is why it wobbles whenever the opposition seeks court intervention.

Although the courts are supposed to give independent interpretations of the law, the Jubilee regime accuses the Judiciary of “being in bed” with the opposition. Last Sunday, a vicar of a Nairobi congregation prayed for the courts to “stop causing confusion”.

The judicial interventions in which the IEBC has suffered setbacks, show one of two things: The top actors at the electoral agency do not have the right advice, or they are beholden to vested interests. Whether the subservience is a result of compromise or partisan duress is a subject of investigation.

Let us consider three cases:

Early this year, the IEBC and Jubilee were on the same side of the presidential vote tallying row. Jubilee and the late Interior Cabinet Secretary Joseph Nkaissery held it was ‘treasonous’ for NASA to run a parallel presidential vote tallying centre.

The dissolved TNA and URP, then the Jubilee Alliance, established a presidential vote tallying centre at the Catholic University of East Africa during the 2013 General Election. The centre tallied presidential votes as they came in. If this was not treasonous then, why should it be today? But the IEBC and Jubilee did not address the slippery question. Was it a memory lapse, or a selective reading of history?

The IEBC, on its part, held the law recognises one presidential election returning officer in Nairobi. This person, for now, is IEBC chairman Wafula Chebukati.

The IEBC reserves the right to announce and declare the winner of a presidential election. But the same law also recognises 47 county returning officers, 290 constituency returning officers, and one diaspora returning officer.

These returning officers enjoy delegated powers. They can tally votes from polling stations at the constituencies. The county returning officers can also tally votes from constituencies. They do not have to refer the results to a super-competent mathematician operating from the Bomas of Kenya.

The same law also recognises the finality of presidential election results declared at the 290 constituencies, which are then forwarded to the returning officers in the counties for regional tallying, before being sent to Nairobi for final tallying without alterations.

The IEBC, and Jubilee, wanted the constituency and county presidential votes treated as tentative until declared final in Nairobi.

Shall we then say the ‘Tharaka Nithi Model’ is dead?

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