Clearly define role of IEBC officials to avoid poll chaos, MPs told

Supreme Court judges

Supreme Court judges during the presidential election petition.

Photo credit: File | Nation Media Group

The Supreme Court has advised MPs to come up with laws to define the roles of all electoral commission officials and contractors involved in elections to avoid a repeat of the chaos that pushed Kenya to the brink of a constitutional crisis following the August 9 polls.

The seven judges, led by Chief Justice Martha Koome, have also urged the Independent Electoral and Boundaries Commission (IEBC) to formulate internal policies that detail roles of its officers.

Just moments before IEBC chairman Wafula Chebukati declared William Ruto the President-elect on August 15, four commissioners disowned the poll results.

Juliana Cherera, Justus Nyang’aya, Francis Wanderi and Irene Masit walked out of the national tallying centre at Bomas of Kenya, and held a press conference claiming that the results were not reflective of the will of Kenyans.

The four argued that Mr Chebukati had sidelined them from the tallying and verification of votes hence they could not rubberstamp the results declared.

The four repeated their claim in documents filed at the Supreme Court.

Presidential petitions filed by Raila Odinga, Okiya Omtatah and Youth Advocacy Africa sought to nullify the election on grounds that some IEBC commissioners had been sidelined during tallying and verification, contrary to Article 138 of the Constitution.

While the Supreme Court agreed that all commissioners must be involved in the tallying and verification of presidential election votes, it ruled that the four breakaway commissioners participated in the processing of results.

Had the court ruled that the four commissioners were sidelined on account of their disowning of results, Kenya may have walked into a constitutional crisis in regard to running of a fresh election with the IEBC as currently constituted.

The Supreme Court now holds that stating the role of the chairperson, commissioners, staff and IEBC contractors in law and internal policy documents could help avoid such a situation.

“IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy, and oversight responsibility of the chairperson and the commissioners; and develop institutionalised guidelines on how to manage the separation of administrative and policy domains.

“The roles of the chairperson, commissioners, and the chief executive officer, other staff and third parties should be clearly set out in both the legislative and administrative edicts as stipulated above,” the judges said.

Chief Justice Koome’s bench has also recommended that the time for determining presidential election petitions be extended beyond 14 days, a suggestion that was also made by the court during Justice David Maraga’s tenure.

The seven judges suggest that the IEBC makes provisions for special voting to cater for people who are unable to go to their designated polling stations on election day.

The court ruled that IEBC failed to make provisions that would allow its employees, hospital patients and many disabled Kenyans to vote, but held that no evidence was given to show that more than 500,000 people were locked out of the polls which would have changed the outcome of the petition and the election.

A petition filed by Juliah Nyokabi Chege, Joseph Mutua Ndonga and Simon Mwaura Njenga claimed that IEBC failed to put in place procedures for special voting by 500,000 election officials, observers, patients admitted in hospitals, older members of society, members of the defence and security forces on duty and other persons by reason of the special need.

“We observe that there was specific and a deserving reason to make provision for special voting by the categories of people named in Regulation 90, who by reason of any special need, including disability, are unable to access a polling station. We expect IEBC to actualise the intentions expressed in Regulation 90 aforesaid,” the court said.

The Supreme Court has also asked lawyers and parties appearing before it to avoid insulting judges or the institution when dissatisfied with the end result.

Last week Siaya governor James Orengo, who led Mr Odinga’s legal team, termed the judgment as a political decision.

“It ought to be appreciated by all, that given the adversarial nature of our legal system, a determination of any matter by a court of law can never be in favour of both sides of the contending parties. While a party or its counsel may understandably be aggrieved by a decision of the Court, it does not help or take away such grief by resorting to insults or vitriolic attacks on courts,” the judges added.