Thursday, September 18, 2008



Thursday, September 18, 2008
By Emmanuel Onyango and Kipngeno Cheruiyot
Kenya Times

THE current Electoral Commission of Kenya (ECK) under the leadership of Samuel Kivuitu should immediately be disbanded and a new one constituted.At the same time Kenyans will never know who between ODM’s Raila Odinga and PNU’s Mwai Kibaki won the last year’s controversial presidential election. This verdict was made by the Independent Review Commission (IREC) tasked to investigate the electoral process following the controversial December 27 presidential elections.

In its report, the Commission headed by Justice Johann Kriegler also reckons that it is not clear whether Kibaki garnered 4,584,721 to be declared winner over Raila Odinga who accumulated 4,352,993 votes. "The conduct of elections was so materially defective that it is impossible to establish true or reliable results for the presidential and parliamentary elections. "Although there is room for honest disagreement as to whether there was rigging of the presidential results, the answer is irrelevant as the recorded and reported results are so inaccurate as to render any reasonably accurate, reliable and convincing conclusion impossible," the Kriegler report, a copy of which we obtained, states on page 9.

And Kriegler blames all the political parties for messing up the democratic process through their manipulative and undemocratic nomination processes.More shocking was the disclosure by Kriegler that a potential recount of the presidential vote tally, as had been advocated by ODM, could not have altered the election outcome since the polls were "too bad even before the results got to the KICC voting tallying centre.""There was widespread bribery, ballot rigging and intimidation. The process was so impaired that the results were irredeemably polluted. Nobody will never ever know who won the elections, it was simply too bad even before the results got to KICC," said Kriegler

The Independent Commission laid full blame of the bungled election on the Samuel Kivuitu-led team, although an accusing finger was equally pointed at Kenyans for condoning the rot in the electoral process.Kriegler, however, absolved ECK from accusations of manipulating figures during the vote tallying process at KICC, explaining that such accusations had not been substantiated by witnesses and experts who testified before the Commission."Contrary to rumour and popular talk, upon scrutiny of the evidence presented to us, the allegation of rigging at KICC cannot be substantiated," he said.

The hard hitting recommendations by the Kriegler team were contained in the 117 page report submitted to President Kibaki and Prime Minister Raila Odinga yesterday at Harambee House. "We have been frank and ruthless. We have not hesitated to look at the issues under our mandate clinically and critically as the President had told us. We looked at the integrity of the tallying process, the role of political parties and the independence, capacity and efficiency of ECK," said Kriegler when he presented the report."We found there were weaknesses and inconsistencies in the legal system regarding the electioneering process which needs to be addressed immediately," Kriegler added.

Present during the short ceremony were Justice and Constitutional Affairs Minister Martha Karua, Head of Public Service Francis Muthaura and Government Spokesman Dr. Alfred Mutua.Chief Mediator in the Kenyan crisis former UN Secretary-General Kofi Annan jets into the country today to receive the same report. A top UN official, Nasser Ega-Musa, who was also Annan’s spokesperson during the mediation talks, confirmed the former UN chief’s scheduled arrival.Significant recommendations by the Kriegler Commission include amendment of Section 7 and 9 of the constitution to eliminate all doubts as to the expiry of the term of office of the President.

Amendments should also be made to provide for a fixed term of office for the President and Parliament together with provisions for an electoral timetable. According to the Commission’s Chairman, ECK’s current composition of 22 Commissioners was blotted, lacks independence and has lost public trust. It requires an urgent radical change of personnel and image to restore public confidence in the electioneering process.Consequently, the new team to take over at ECK must be a lean body that will be assisted by a professional secretariat. Kriegler furthermore recommended a review of the country’s voters register as well as adoption of a new voter registration method.

Other reforms proposed are the reduction of the maximum number of ECK Commissioners, re-organisation of the expiry of the terms of office of the Commissioners to ensure they do not coincide with election years and make ECK accountable to Parliament and not the President. The Commission also faulted the unilateral selection of the ECK Commissioners by President Kibaki last year without the involvement of other political parties which had made Kivuitu and his team vulnerable to manipulation by State House."The manner of appointing Commissioners and the structure, composition and management system of the ECK are materially defective, resulting in such a serious loss of independence, capacity and functional efficiency as to warrant replacing or at least radically transforming it," the report recommends.

The report calls for the elimination of the voter’s card which it described as a "redundant requirement." Instead, voters should be allowed to vote if their name is in the register with the simple presentation of the national ID or passport.Further, ECK has been instructed to develop a secure tallying and data transmission system which will allow computerised data entry and tallying up to the national tallying centre. The media must have full access to this new system.The proposed reforms will also see ECK specify in advance what electoral formula it will use in deciding the number of nominated seats each party will receive based on parliamentary strength.

Disabled people should have specially reserved seats in Parliament. They should be capable of contributing to discussions in Parliament but will not be allowed to vote. Kriegler recommended that a raft of reforms be undertaken to resuscitate ECK’s reputation including the adoption of a totally new name and image. He advised the government to seek international help in sprucing up the ECK.Kriegler led the group of commissioners who included Imani Aboud, Horacio Boneo, Lucy Kambuni, Catherine Mumo, Francis Agila Aywa and Prof Maranga Marete. Also present was the Commission’s Secretary Jorgen Elklit and counsel assisting the Commission Yohane Masara.

President Kibaki, in his speech during the handing over ceremony, acknowledged that his victory at last year’s presidential election had been "particularly controversial." He said the Kriegler report will be made public tomorrow.