WHY IEBC SECRETARIAT SHOULD BE DISBANDED.

WHY IEBC SECRETARIAT SHOULD BE DISBANDED

Those who attended the presidential petition hearings must have been treated to a legal drama. There was verbal drama from Senior counsel Paul muite’s legal mwahahaa, when he sought to justify IEBCs decline to allow National super alliance, the Jubilee and the court; access to the commissions server data base. Learned Muite claimed the commissions servers were in Europe and as such they had to wait for the Europeans to wake up and switch on the servers due to timeline differences.

The lurid vignette evidence adduced in court by the petitioner could not be rubbished or challenged by the defense. Hell broke loose when the Attorney general decided to join the case as amicus curiae. In a legal hoity-toity, the attorney general sought to underscore the need to make the constitution the boundary within which elections must be held.

Immediately I heard the attorney general attempt to underscore the strictness of the constitution on election process, I knew NASA had won the case. The attorney generals submission was hinged on an argument that it is not only the constitution which is used in electoral process but also other laws. It was obvious the attorney general knew Nasa had won the case. Being the legal advisor to parliament and the president, a man versed in law, it was obvious these were the last kicks of a dying horse.

It is unimaginable that IEBC could not produce the Form 34C which had the collated verified and authenticated results from the 291 Form 34Bs. As if that is not enough, by the time the president elect was pronounced IEBC had not received a majority of the requisite form 34As. There was no way the defense lawyers could have mounted a defense strong enough to challenge the evidence adduced by the petitioner.

Further, the decision by IEBC to portray figures keyed in to the system rather than the verified, certified and authenticated results from form 34 As and Bs, was itself contrary to the ruling in the Maina Kiai’s case where the court ordered  the results that are certified and verified at the polling centre and constituency are final. The commission went ahead and portrayed ambiguous statistics in their portal which was initially meant to allow the public access and see the results. As a result IEBC literally made it impossible for the public to understand whatever figures they were portraying on the screens, brobdingnagianly doctoring the results.

Well the petition is now water under the bridge. What remains is a flood of petitions challenging the other five positions. Considering the findings of the Supreme Court in which the court was satisfied the first and second respondents committed irregularities and illegalities, the ensuing cases are more likely to succeed. The tyranny of numbers could turn out to be a tyranny of petitions which with good legal representation and evidence, obviously will take course of the precedent set by the Supreme Court. In the long run Jubilee might not boast of the tyranny of numbers they are attempting to make the nation believe. They may not even suffice a majority.

It is obvious these irregularities and illegalities were devised in such a way that it would portray Jubilee clinched most of the elective positions across the nation something which would not be possible following the scorecard of the Jubilee regime in the outgoing term. Consequently, the people captured in the first respondent and second respondents respectively committed criminal acts and omissions and should subsequently be held responsible. If illegalities are committed then somebody must take responsibility for those criminal acts especially those identified by the court.

In stronger democracies where the rule of the law is what guides the nation. The people responsible for those illegalities committed during the August elections should have resigned and should be somewhere in jail because the court had already pronounced them guilty. How the country go into elections with the same people who committed these illegalities. If this is allowed to happen it would be like giving a culprit the green light to hold another election before he sent to jail. That is outright impunity. Does it mean there are no other people with integrity who can replace those culprits?

There is a lot of time that can be utilized well to sack those who are culpable in the IEBC, replace them with a temporary secretariat if it becomes difficult to get permanent replacements. The ballot papers can be printed in one day like was printed last time, except that this time round IEBC should not print even 1 ballot extra. The last time they printed a whopping 19.6 million plus an extra 1.2 million and it is so unfortunate that the commission could not account for the ballot papers.

Strengthening the KIEMS system and its firewall against intrusion can be done within a day or two. The register is still intact. There is no reason of not sending home those who conspired and bungled the elections. The two political divides must strike a middle ground to avert a looming constitutional crisis arising from timelines, where there is no president, no elections and no IEBC to conduct elections. If the country gets to that point then there may be bad times where only the end would justify the means.

On Tuesday March 2016, The Standard carried a captivating headline; “Shock probe on top judges.”  The Judicial Service Commission formed a panel to investigate three top court judges for misconduct. What a Coincidence that these judges who were investigated for misconduct are the same who did rule against the nullification of the recently concluded shambolic presidential elections. Judge Mohamed Ibrahim was allegedly taken sick and hence did not sit the full hearing. The departure of Mohamed Ibrahim meant that it was likely going to be a tie due to obvious reasons. Judges Jacktone Ojwang and Njoki Ndungu dissented.

I don’t understand how Lady Justice Ndungu would choose to validate figures whose origin cannot be established. With irregularities and illegalities in the processes that generated those results. It’s like a flawed process generating reliable good results, something which is impossible. Only by a miracle can a bad thing produce a good thing. Jesus said, you cannot get apples from an orange tree and that a bad tree can only produce bad fruit. Even from a layman’s point of view, Njoki’s ruling was biased skewed and influenced.

On the other hand Justice Jacktone Ojwang made a little sense in his judgment unlike Njoki Ndungu whose judgment seemed outrightly predetermined. Ojwang maintained the evidence adduced did not meet the requisite threshold to overturn declaration of the third respondent as president elect. Although Ojwang’s ruling was vividly biased given the fact that the evidence in court was ginormous, it is logical if that was his view or judgment. The question is whether he considered the presentations of the respondents and how they defended themselves against the evidence presented by the petitioner.