IEBC 'dysfunctional', needs sweeping reforms — apex court

The Supreme Court has called the IEBC "dysfunctional" and called for far-reaching reforms including a law change to streamline its operations.

It cited "glaring shortcomings" in management of the electoral process.

The court said Raila Odinga's petition challenging William Ruto’s electoral victory exposed a number of issues undermining the Independent Electoral and Boundaries Commission's proper functioning.

The Chief Justice Martha Koome-led bench said it has a "constitutional obligation to point out the institutional dysfunctionality undermining the optimal functioning of IEBC.

"It is clear to us that there are legal, policy and institutional reforms that are urgently required to address the glaring shortcomings within IEBC,” the court said in its full ruling on Raila's petition 

The apex court has called upon Parliament to make laws that separate the policy and administrative roles of the IEBC.

The judges, in their  detailed ruling released on Monday, want the IEBC to come up with internal guidelines defining the roles of the commissioners, chairperson and staff.

“The IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy and oversight responsibility of the chairperson and the commissioners,” the judges wrote.

They called on the polls agency to develop institutionalised guidelines on how to manage the separation of administrative and policy domains.

Judges also want Parliament to enact laws and administrative guidelines spelling out distinct roles of the chairperson, commissioners, the chief executive officer, other staff and third parties.

In the past three elections, cases of strained ties between the commission and its secretariat have featured prominently, this time including among commissioners.

It is a widely held belief that despite efforts to reform election management, the IEBC is still faced with the challenge of waning public confidence.

The fears, which chiefly centre around management of elections, recently escalated to internal strife that is argued to have affected the commission ahead of the August elections.

On Monday, police lobbed teargas at Azimio lawmakers and their supporters protesting the interdiction of an IEBC officer linked to four commissioners who rebelled against Chebukati who announced Ruto the victor.

In his statement shortly after suffering defeat at Ruto’s hands, Raila said “saving the Judiciary from state capture, transforming the IEBC and stopping the legislature from offering itself for state capture” would top the opposition’s agenda.

President Kenyatta, in his last speech, also called for reforms at the polls management body, with a closer review of the poll process.

"It is time we must answer the question of whether it is about the process or the numbers," Uhuru said.

The court has also backed calls for extending the time for hearing a presidential petition from the current 14 days after filing.

In the 2017 petition challenging President Uhuru Kenyatta’s win, Raila asked the courts to extend the constitutional timeline for the hearing and determination of a presidential petition.

The Koome team backed the call saying it would help the apex court manage its cases efficiently, and also accord parties sufficient time to explain their cases.

In the BBI case, which was championed by Raila and Uhuru before the court declared the process unconstitutional, it was proposed  the court dispenses with presidential petitions within 30 days.

The Supreme Court further recommended the IEBC make changes in managing poll technology and printing statutory forms.

It urged the IEBC restrict access to the servers supporting the transmission and storage of election results to IEBC staff during the election period.

The judges also asked the IEBC to deploy separate servers for the elections and those for their internal administrative work.

“This would then allow the court, should the need arise, to carry out forensic imaging of the same without compromising and/or infringing any third-party agreements,” the court said.

The IEBC is also expected to introduce a column for recording stray ballots as part of Form 34A, and also wants only one section for recording total valid votes.

The apex court also recommended further training of poll officials on the subject of what constitutes a valid vote, as was ordered by the court in its earlier rulings.

The Supreme Court also wants the IEBC to instal specific mechanisms to allow for special voting, recommendations that have drawn sharp reactions from some of the parties.

Narc Kenya leader Martha Karua, who was Azimio deputy presidential candidate and co-petitioner in the Raila case against IEBC, dismissed the judgement as “hot air", a term used by the court to describe the Azimio case. Raila also repudiated the ruling as "judicial thuggery".