The court ruling came quietly. Just another document from the courts full of legalese and the pompous language of lawyers. It was a cold Thursday afternoon. August 4, 2022, to be precise. In the US, Michelle Obama, wife of former president Barack Obama, had taken to Twitter to wish her husband a happy birthday, gushing: “Life with you just keeps getting better every year. You always make me proud. I love you.”
Elsewhere in the world, millions were preparing to mark the International Beer Day with alcohol parties and the usual debauchery that comes with the day. It was the 216th day of the year; 149 days to its end and, most crucially, just four days before polling stations opened for what would go down in history as one of the most epoch-defining elections in Kenya’s history.
Justice Thande Mugure sat in a Nairobi courtroom, peering over a small crowd gathered in the room into the grey-black lenses of the tens of news cameras waiting to capture and transmit her words to an uneasy, expectant nation.
Days earlier, several human rights organisations, among them Kenya Human Rights Commission, Katiba Institute, the Kenya section of the International Commission of Jurists, Haki Yetu, Inuka Kenya Ni Sisi Limited, Africa Centre for Open Governance, and the Constitution and Reforms Education Consortium, had filed a court case seeking the ordering of the Independent Electoral and Boundaries Commission (IEBC) to use manual voter registers as backup in the upcoming General Election.
Their prayers had received the support of Azimio la Umoja One Kenya Coalition presidential candidate, Mr Raila Odinga, whose political wing had questioned the motive behind an announcement by the IEBC days earlier that it would only use an all-electronic voter identification system during the elections, justifying the decision by promising that this would curb irregularities and other electoral malpractices.
As Justice Mugure sat in the Nairobi court, party agents across the country were making final arrangements to protect the interests of their political affiliations in polling stations. A storm had been brewing in the Azimio camp in the Lavington district of Nairobi over the composition and remuneration of its agents, and at the campaign secretariat of the United Democratic Alliance, party officials were pulling one last move to shock and bedazzle the Odinga faction.
The difference between these two party agent machines, the efficiency of their deployment, and the degree to which they would protect party interests across tens of thousands of polling stations across the country would, combined with other factors, including the court case, determine whether Dr William Ruto would triumph at the ballot, just four days away.
In the battle to succeed President Uhuru Kenyatta, the push-and-pull had moved from the campaign trenches to the hallowed sanctums of courtrooms and the planning desks of secretariats, and Mr Odinga and his main challenger, Dr Ruto, were squaring it out in dramatic fashion.
That how the election would be conducted, whether manually or purely digitally, was now the basis of a court battle did not catch the attention of many in the country. Yet this case, it would turn out days later, would have significant implications on voting day, on results transmission, and on the management of the election petition following the announcement of Dr Ruto as the winner of the electoral duel.
Most critically, how the Ruto camp would react following the ruling by Justice Mugure on that cold Thursday afternoon would, days later, deal a huge blow to the Raila camp, and perhaps even hand the United Democratic Alliance coalition victory at the ballot.
Justice Mugure’s ruling was delivered in her trademark poise and sense of authority. It was short. Just a whimper, really, in the context of the many other court cases being determined on this day. But its implications were resounding and the chorus of news reports and interpretations and analyses that followed signposted its importance in the context of the General Election.
Nation court reporter Joseph Wangui fired the first draft from the courtroom informing the newsroom what had happened. Justice Mugure had found that the decision by the IEBC to abandon the manual register was a violation of the Constitution, which, she argued, provided that where an electronic voter identification device fails, then the use of a physical register would suffice.
The matter at hand was the IEBC’s insistence that the Kenya Integrated Election Management System, or simply Kiems in Kenyan parlance, would be used during the polls. Its deployment in previous elections had been the subject of rigging claims, and critics had also argued against its efficiency and reliability. The Azimio coalition had also raised concerns about the supplier, whom it argued had been implicated of electoral malpractice in other countries.
Safran OT Morpho, the company supplying the elections technology to the IEBC, had in 2012 been fined found guilty and fined by a court sitting in Paris, France for bribing Nigerian public officials to win a contract for the supply of 70 million identity cards between 2000 and 2003. The company had also been sued in the US in 2016 for allegedly supplying identification software labelled as being of French origin, but which was actually Russian. Former CEO of OT Morpho’s Russian affiliate, Powerjet, Mr Philipe Desbois, and deputy director Vincent Hascoet had said in court that the technology was available to Moscow’s security agencies and offered a backdoor for infiltration.
These cases, and many others against the company, formed the basis of Azimio’s averseness to the Kiems kits. To Mr Odinga, therefore, this was not just an efficiency or reliability battle, but a credibility one as well.
But the IEBC had dug in to defend its position, saying the decision to rely on the Kiems kits to identify the slightly over 22 million registered voters during the elections was based on the belief that the use of the physical register would open a backdoor for the Raila camp to abuse the process. Dr Ruto supported this narrative, saying an all-electronic voter register would block any rigging attempts by the Raila camp.
However, Justice Mugure was not satisfied by these justifications, and in court wondered what would happen should the Kiems kits fail during balloting. She then ruled that the manual register would be used, handing the Raila camp early victory and setting the ball rolling for the IEBC to have all voters’ names physically crossed out in the printed register, whether or not they had voted electronically.
She appeared to have based her arguments on a part of the Elections Act, which states: “Before issuing a ballot paper to a voter, an election official shall require the voter to place his or her fingers on the fingerprint scanner and cross out the name of the voter from the printed copy of the register once the image has been retrieved.”
The Raila camp was over the moon. In submissions to the IEBC earlier, lawyer Paul Mwangi, for the Azimio coalition, had questioned the integrity of the Kiems system, noting that it provided no avenue for party agents to verify the authenticity of voters on election day.
“When a name is keyed into a Kiems kit and approved,” he had asked, “how does the public, through the agents of the candidates, know the integrity of the identification if a physical register is not available for them to witness the name of that voter being traced on paper that cannot be tampered with after election?”
Sensationally introducing the argument of the possibility of a parallel, fake voter register hosted somewhere within the Kiems digital ecosystem, he had wondered: “When a name pops up on the Kiems kit, how does the public know the Kiems kit is talking to the official voter register and not another database?”
To understand IEBC’s position, one needs to go back a little bit. Not a little bit, actually, but 10 years earlier. The history of Kenya’s elections is marred with accusations of voter register tampering. In 2013, at the height of the Jubilee campaign when Mr Uhuru Kenyatta teamed up with Dr Ruto to succeed Mr Mwai Kibaki, these same fears had almost derailed the elections, and the same chorus had erupted five years later as Mr Kenyatta sought a second term. It is easy to see why: The printed register, among others, discloses the national identity numbers of voters, and has previously been abused to have corrupt agents vote for absentee voters. In ditching it, the IEBC sought to restrict its use to situations where a voter’s biometric or alphanumeric identification failed, but even that would only happen with the authorisation of the commission.
Throw a spanner in the works
Justice Mugure’s ruling, therefore, had thrown a spanner in the UDA and IEBC works. The electoral agency would have to, in just four days, two of which were a weekend, retrain its staff to use both registers.
As Azimio celebrated this early victory, a chorus of condemnation erupted on the other end. Lawyer Charles Kanjama warned that these “late court directives” to the IEBC could “disrupt electoral arrangements”, and that if the judgment was not stayed on appeal, the IEBC would need to burn the midnight oil to deploy and supply printed voter registers, monitor their use, and curb avenues of ballot-stuffing.
Meanwhile, the Ruto camp was mum on whether or not it would appeal the decision. Time was running out. Could it quickly draw and appeal, file it in court and get a stay order in between Friday, August 5 and Monday, August 8 as the General Election would be on Tuesday, August 9? That appeared an impossibility; UDA was going to the election wounded and exposed. And that ran the risk of seriously jeopardising its “digital elections” agenda.
Then Friday came. And went. Without a UDA appeal.
And Sunday as well.
This appeared to be a done-and-dusted matter.
Monday morning came.
Nothing. No indication of an appeal.
Tick, tock, tick, tock.
And then, very late in the afternoon of Monday, August 8, with less than 15 hours to the opening of the ballots, a Court of Appeal sitting in Nairobi suspended Justice Mugure’s decision, its shocker coming so late in the day on the eve of the election that there was no room for Azimio to appeal it. Lawyer Elias Mutuma had quietly filed an application on behalf of UDA challenging the High Court’s decision and arguing that the integrity of the General Election was likely to be compromised by the looming danger of misuse of the manual voter register.
The three-judge Bench comprising Fred Ochieng, Luka Kimaru and Paul Gachoka agreed with Mr Mutuma and the Ruto camp, noting in their orders that “UDA had made a case for the grant of the orders of a stay of the entire judgment delivered by Justice Mugure on August 4 pending the hearing and determination of the intended appeal”.
The judges stated that the IEBC should use the directions rendered in a case filed by Mr Odinga’s National Super Alliance (Nasa) in 2017, where the court ordered the Chebukati-led commission to use the printed register of voters only in instances where the Kiems kits completely fail, with no possibility of repair or replacement
And so, on August 9, 2022, polling stations opened with Kiems kits as the primary registers. Dr Ruto had handed Mr Odinga a back-handed blow and the Azimio brigade could do nothing about it.
With Azimio’s nose bloodied by this new turn of events, its officials and supporters took to social media and press conferences to condemn the deployment of Kiems kits. Their barrage of attacks was met by an army of UDA bloggers who touted the elections as the freest, fairest, most open and most transparent the country had ever witnessed. The battle had progressed from the campaign trail to the courts, and now to the propaganda machine oiled by Twitter, Facebook and other social media platforms.
Away from the public limelight, as millions of voters queued to vote on Tuesday, August 9, another drama was unfolding in the Azimio camp, and it was threatening to implode in dramatic fashion. Several interviews with senior agents have revealed the details of a disjointed, chaotic and messy secretariat that went to the ballot confused and unprepared.
From its campaign headquarters in Lavington, Azimio had identified and trained agents to represent it in polling stations across the country. The exact number remains a mystery, but party insiders told the Nation that the coalition, like its opponents, did not have the capacity to have eyes in all the 46,232 polling stations gazetted by the IEBC.
By contrast, in July 2022, about a month to the elections, UDA had instructed its candidates to start recruiting their own agents after getting approvals for the massive deployment of personnel from the IEBC chairman, Mr Chebukati, who said he had no objection to candidates recruiting their own agents, as opposed to parties, so long as they liaised with returning officers.
A Nation estimate of the number of UDA-affiliated agents following Mr Chebukati’s greenlight put the number at about 277,000, but it was based on the assumption that all candidates in the six elective posts would have their agents. It is, however, highly unlikely that UDA marshalled these numbers, but the point to note is that the Ruto camp outnumbered Azimio agents by huge margins across the country.
It is, however, not the absolute agent numbers, but the sheer absurdity of infighting within its secretariat, that befuddled many in the Azimio agents camp. High in the list of questionable last-minute moves was a decision by senior managers to move the campaign secretariat from Lavington to a building in Westlands, Nairobi just three days to polling day. Azimio leaders did not respond to our questions as to why this happened, but a source told the Nation that the building in the glitzy district of the city belonged to a close associate of President Uhuru Kenyatta, who supported the Odinga candidacy.
As the secretariat settled into their new offices, another shocking order came from a senior campaign manager. On the eve of the election, as the Court of Appeal sat in Nairobi to hand Dr Ruto early victory on what format of register to use in the elections, Azimio decided to change the majority of the agents it had spent days and a financial fortune training to guard its votes. The secretariat erupted in chaos, anger and accusations of a cabal of insiders trying to fix Mr Odinga.
“One of the top officials, a close ally of Mr Odinga, messed up the agents plan,” a senior Azimio source, whose identity the Nation is not revealing because of the sensitivity of the matter, said: “It was a scenario where you have trained, say, 1,500 agents in a constituency, then he comes and asks you: ‘How did you find these people?’ Then he gives you a list and says: ‘Work with these ones.’ And it’s hours to the election, and you don’t know who these new people are or where they came from, and you are being instructed to send letters to people who are not trained.”
A year later, it still remains a mystery why Azimio changed its agents hours to the election. There are claims that the Azimio secretariat was infiltrated by its opponents, and that some of the questionable decisions made days to the election were designed to disorient the camp and cause it to lose the elections.
Others have suggested that there were deep divisions and high levels of mistrust in the secretariat, while others have argued that a secret but powerful hand manipulated processes and imposed itself on campaign managers, leading to high levels of disgruntlement and the chaotic scenes witnessed on voting day.
On August 9, 2022, tens of thousands of people who had been trained to be Azimio agents woke up to go to polling stations. At the same time, tens of others who had been appointed the previous day, and who did not have the requisite documents identifying them as Azimio agents, went to the same polling stations. There was confusion at the gates on who would protect Mr Odinga’s votes in these polling stations and centres. Disgruntled and mishandled by the Azimio secretariat, some of these agents jumped ship to the eagerly waiting arms of the UDA camp.
“The agents were changed at 2am,” said the Azimio senior official. “We did not have time to put things in order with the polling stations opening just four hours away. The new agents did not have introductory letters or even accreditation cards as Azimio agents.”
These claims were confirmed by the Azimio chief agent at the polls, Mr Saitabao ole Kanchory, who in his book Why Baba is not The Fifth, notes: “The confusion at the command centre had been made worse by endless infighting and internal wrangles within the Azimio family. These turf wars found their way into the sensitive issue of agents, with every Azimio strongman and woman insisting they must be the ones to provide the list of presidential agents.” As a result, Mr Odinga did not have presidential agents in many crucial political battlegrounds in the country, including in Kisii, Kajiado, Narok, and sections of the north-eastern and coastal belts. That, perhaps, explains why many of the results forms posted from these regions did not have the signatures of Azimio agents.
For instance, a Nation report from early this year shows that the Form 34A from Chepkisa Primary School’s Stream 1, in Emurua Dikirr Constituency of Narok, was only signed by the UDA agent posted here. Mr Odinga got only four votes in this stream while Dr Ruto received 285 of the 290 valid votes cast. Mr Mwaure Waihiga of Agano Party went home with the remaining one vote.
However, despite these intra-party wrangles and meddling, Mr Odinga absolves his secretariat of blame, calling the suggestion that he lost the election because his team mismanaged his campaign “absolute rubbish”.
“Our votes were stolen at the national tallying centre, not at the polling station,” Mr Odinga said in December last year, insisting that “there was nothing wrong on our side”.
So, did that last-minute court ruling and the agents fiasco cost Mr Odinga the election? While there is no gainsaying that Dr Ruto ran an energised, well-oiled and vigorous campaign machine, the answer to that question depends on whom you ask. The Azimio coalition believes its victory was stolen using a combination of the Kiems kits it rejected and mathematical and technological wizardry during transmission to, and at, the national tallying centre at the Bomas of Kenya.
Mr Odinga still demands the opening of the IEBC servers to carry out a comprehensive audit of the results, and these petitions form part of the agenda for bipartisan talks between the ruling coalition and the opposition, also happening at Bomas. The UDA side, on the other hand, has claimed on several occasions that this election was the most transparent in the history of the nation. The Kiems kits, it contends, allowed for a very public tallying process as they transmitted all Forms 34As from polling stations to a central server electronically.
The game-changer this time, however, was the decision by the IEBC to allow access to that server to anyone, anywhere in the world. Millions of people logged into the system in the period between August 9 and Monday, August 15, when the commission’s chairman, Mr Wafula Chebukati, declared Dr Ruto winner of the race.
Last month, a year to the date after Kenyans went to the ballot, the Commonwealth Observer Group to Kenya released its final report on the 2022 elections. The 15-member delegation, led by former Prime Minister of Jamaica Bruce Golding, concluded that, despite some challenges, “the election was on the whole credible, transparent, inclusive and largely peaceful”.
It went on: “While acknowledging significant improvements in the deployment of electoral technologies compared to the previous election, the group identified some areas for improvement, including the delays towards the end of the results announcement process and a need to improve transparency regarding the finalisation of the voter register.”