Sunday, September 21, 2008



September 21, 2008
Sunday Standard
Nairobi, Kenya

By Juma Kwayera

The unspoken verdict of the inquiry into last year’s poll chaos was: Kenya is a mosaic of liars and rumourmongers. And the ECK is a sum total of this culture that defies the chorused collective aspiration for national integrity.

These were the parting shot of Mr Justice Johann Kriegler, who left Kenya yesterday after six months of investigating the conduct of last year’s election.

The Independent Review Commission (Irec), a product of the National Dialogue and Reconciliation Talks, chaired by former UN Secretary-General Kofi Annan, stunned the country when it declared that it was not possible to know who won the 2007 presidential poll.

The verdict, considered an antithesis by most Kenyans, provided a rare insight into the thinking of the judge who cut the image of indifference and intolerance since his arrival in March.

The probe team said the verdict, which has been interpreted as designed to prevent a slump into the January-February type mayhem, was arrived at following inconclusive evidence of rigging.

Kriegler attributed this to the ingrained culture of rumour mongering and impunity.

"Only the truth will set us free. Truth will liberate you," he said, as he warned that the 2012 polls could as well be marred by violence if the composition and the operations of the ECK remained as they are.

Although he dismissed allegations of rigging as hollow and mischievous, the judge dropped loud hints that poll meddling that precipitated the allegations was premeditated.

The commission’s conclusions and recommendations received strong backing from Justice and Constitutional Affairs Minister Martha Karua.

Karua had, on Thursday, said the systemic rot in the country’s electoral system needs to be dealt with conclusively before 2012, when the county goes to the polls again.

She said: "This is a reality that we have lived with and we know that our system is rotten to the core. It is time we faced this reality and corrected it," adding, "What you may not have heard was that there was no rigging at KICC."

It is widely believed that had Irec confirmed President Kibaki or pronounced Prime Minister Raila Odinga as deserving of victory, the palpable political atmosphere in the country would have given way to fresh chaos, hence the "neutral" verdict.

The Kriegler commission, constituted of two foreign investigators and four local ones, repeated several times in an interview with The Standard on Sunday that Kenyans detest the truth.

The members of the commission were Lady Justice Imani Daud Aboud from Tanzania, Ms Catherine Muyeka Mumma, Mr Francis Angila Aywa, Prof Marangu M’marete and Ms Lucy Kambuni all from Kenya.

In his reflections on Kenyan politics, Kriegler pitched for transparency and accountability, traits he said were almost absent in the body politic.

Throughout the investigation, Kriegler, who chaired the South Africa’s electoral commission during the historic post-apartheid 1994 elections, put Kivuitu to task over incompetence, which he said brought the country on the brink of a civil war.

"ECK was trying to cover up. It was given 210 computers to run a computerised data transmission system from the constituency offices. But on December 22, 2007, five days to the polls they abandoned it. Had that process been implemented and worked, we would not have had any of these disputes. You cannot run an election with steam-driven, old-fashioned engines," he said in reference to ECK’s preferred error-prone manual processing of data.

The judge regretted that the peculiarity of the Kenyan situation had set a bad precedent in Africa, but expressed satisfaction that there is a tradition of periodic election the country can build upon to avoid a repeat of the mess.

Last Monday’s power-sharing agreement between Zimbabwean President Robert Mugabe and opposition leader Morgan Tsvangirai’s was in every respect a carbon copy of the Kenyan case. The judge said the two cases were likely to encourage incumbents to cling onto power in anticipation of forming coalition governments.

The winner

Kriegler held onto his conclusion that it was impossible to determine whom between Kibaki and Raila won the presidential poll.

"Everybody cooked results. Everybody across the board from Lake Victoria to the Indian Ocean cooked," he told The Standard on Sunday. However, the judge described ECK chairman Samuel Kivuitu’s conduct as a let down.

"Kivuitu’s statement that somebody was cooking results were unwise, but to blame him solely as the cause of the poll chaos is a cheap shot. It is the kind of buck passing Kenyans are so used," he said.

Prior to his arrival, he said, he was convinced that PNU had stolen the polls with help of ECK.

Corrupt people at ECK

"I was convinced that the presidential election had been stolen by corrupt people in the ECK at the national tallying centre. I did a lot of reading, including International Crisis Group and media reports which convinced me that the election was stolen," said the judge.

As he left the country after handing over his report to Chairman of the Panel of Eminent African Persons Kofi Annan, on Thursday, he said he had been disabused of this preconception.

Instead of apportioning blame on ECK for acquiescing in illegalities, his findings, after touring the country to collect views, were that Kenyans must collectively share the blame.

He blamed the electoral chaos on a deep-seated culture of cheating that has its roots in the single party era that was dominated by personality cults rather than governance issues.

"What stood out for me was the concern, the worry and the yearning for something better. People called for change in the Constitution, firing of the ECK officials and replacing it with something better.

"However, without having actually thought about why we must change, what we must change you get the impression of a generalised yearning for a new dawn," said the judge.

He says the culture seemed to have been passed down from the days of Kanu as the only party in the country.

"People got used to receiving money to vote. Politicians bought votes with money, sugar or maize flour. There are too many footprints to the extent that you cannot point an accusing finger at one persons.

"Under one party rule, elections were not an opportunity for wananchi to express their views about governance rather showing support their leaders. Kanu gave gifts to those who supported it. The culture has not been abandoned," said the retired judge.


In what is likely to form the gist of the commission’s recommendations, the judge said if he were to prescribe a cure for the country’s political and governance problems he would begin with putting in place a government that is determined to serve the people. This, he says, is as opposed to previous ones that ministered to the whims of a clique of thieving individuals.

Despite the political setback, the judge thinks, Kenya has not lost its status as a regional powerhouse.

"Kenya holds iconic status in East Africa. Its economy is vibrant. It is technologically more advanced than the rest of the countries in the region. The fact that it held elections, even if flawed, every five years is an indication of the progress the country is making towards democratisation."