For the first in history, Kenya’s Supreme Court appears poised to make a tectonic shifting ruling that could set unprecedented standards on how the IEBC conducts national elections going forward. All three sides, i.e. Raila Odinga’s the National Super Alliance (NASA), Independent Electoral & Boundaries Commission (IEBC) and President Uhuru Kenyatta’s Jubilee Party have an unprecedented opportunity to battle it out before the Justices and at the end of the day, one side will walk out victorious the other in defeat, this is the nature of these things. Based on the submissions before the court so far, it is clear that the petitioner has much better odds this time around than in 2013; most of Raila’s Odinga’s submissions in 2013 were disallowed by the Mutunga court while those of Kenyatta were admitted into evidence. For all practical purposes the IEBC has been has been caught with pants down, I mean abjectly incompetent and outright scheming to scam the electoral system. I don’t pretend to know the outcome nor do I havd Professor Makau mutua’s crystal ball to predict exactly how the Justices will rule, only they would know but based on evidence submitted thus far I have a suspicion that they themselves are troubled by IEBC’s conduct and may want to put an end to this once and for all. IEBC has demonstrated its penchant defiance of court orders on multiple occasions including the one now being adjudicated by the Supreme court where it failed to count and announce elections results at the polling stations in direct defiance of the court of appeals order, obviously they don’t respect court rulings, clearly have an open disdain for the courts. The Supreme Court has original and final jurisdiction, meaning they have wide discretion to uncover the truth within the context of the petition and attendant pleadings. Accordingly, I would hope the do the following:
Audit IEBC’s Ballot Count for errors – At its own discretion or request by NASA, the Supreme Court could decide to test the veracity of NASA’s claims and IEBC’s defense and order a supervised audit of ballots from randomly selected polling centers across the country in ADDITION to the already known IEBC “scam ballot counts”. The object of course is to establish the error rate of the vote count; this should be a very quick excise from the random sample population. In this case, the Court could set an acceptable error rate threshold of say 5%, meaning if the discrepancies (error rate) of Forms 34A vis a vis the ballot counts from the polling stations and 34Bs. If it turns out that the error rate is significant enough and above the 5% threshold, then of course the court can either decide and order a full recount of every vote or simply declare the whole exercise invalid and order a new election. What a 5% error rate translates into is roughly750,000 votes improperly allocated to President Kenyatta, a 10% error rate will translate into 1,500,000 Million votes improperly allocated to him and so on and so forth. also want the IEBC forms scanned to reveal their authenticity because we have been told the UPC Codes belong to other organizations, a big tell-tell sign that they are forgeries.
Reconcile IEBC Ballot Inventory – This is a simple quick test that the Supreme Court can order and supervise in a fly. We know the quantity of ballots IEBC ordered and the number they say were cast, how about the court actually order a ballot inventory count and a reconciliation report that validates on-hand ballot inventory vs cast ballots? That would be yet another nice check to guide the court in its decision, I hope someone raises the issue before the court.
Truth is IEBC is hopelessly dysfunctional and doesn’t seem to know what it is doing even in court submissions, it admitted that the results it displayed were NOT the results but statistics! Statistics? What the heck does that even mean? continues to base its argument of 34B, that it based its results announcements on 34B, and its lawyer, a one Mr. Nyamodi, IEBC downplayed the significance placed on forms 34A in declaring presidential results and insisted that they were not mandatory. This despite to court of appeals order that directed the IEBC to use Forms 34A in declaring results; there is no such thing as Constituency tallying, NONE whatsoever. Mr Nyamodi told the court that the significance of forms 34A had been muted and the IEBC’s right to declare provisional results taken away. According to Nyamodi, “Forms 34A are not mandatory for the chairman of the commission to declare the winner in the presidential race. The decision to declare Mr Kenyatta as the winner was done within the law because all forms 34B had been received.” If this is not a direct affront and insult to the courts themselves, I don’t know what it. It is dereliction of duty, simple as that. To disregard a court order and have the audacity to rubbish the ruling after you have disobeyed the order before the Supreme Court and get away with it? Really? Anyway, I hope the court takes judicial notice of this flagrant disregard of judicial orders and put a pause if not an outright end to it once and for all.
New election – In the likely event that the Court orders a new election, I expect it to put in place measures to ensure the IEBC doesn’t repeat its mistakes and make this exercise a fool’s errand. I want the court to order supervised elections to mitigate the damage wrought by an obviously discombobulated commission because left to its own devices, IEBC will repeat itself; we will be back in the same exact position immediately following the 2nd election. Egos will be bruised and both President Kenyatta and IEBC would most likely dig in and figure out how best to outsmart the system and court orders yet again. Elections are expensive and when the IEBC screws up, we end up paying for it and so I expect the court to put an end to IEBC’s defiance and to supervise how it conducts the elections if so ordered.