Courting disaster? How IEBC could be preparing for failure

IEBC Chairman Wafula Chebukati

IEBC Chairman Wafula Chebukati.

Photo credit: Jeff Angote | Nation Media Group

Independent Electoral and Boundaries Commission chairman Wafula Chebukati and senior officials at the polling agency are in the spotlight over their readiness to conduct this year’s General Election, with particular focus on the management and transmission of results and delays in the procurement, installation and testing of the requisite technology.

The two leading presidential candidates, Deputy President William Ruto and former Prime Minister Raila Odinga, have taken the IEBC to task over its preparedness to conduct the elections, while civil society groups have raised a red flag over delays in the procurement and installation of key technology to be used in the capture, storage and transmission of voting data.

The concerns arise from unanswered queries out of the presidential election of 2017 that was annulled by the Supreme Court and Mr Odinga’s eventual boycott of the repeat election after the IEBC, according to the Odinga camp then, failed to guarantee a free and fair election.

Also in mind is the disputed election of 2007 that sparked off widespread violence following the questionable conduct of the electoral agency’s then boss Samuel Kivuitu, who declared President Mwai Kibaki re-elected despite earlier conceding in the glare of television cameras that he was not sure who had won. Kivuitu died early 2013.

There are fears that a botched election could be a catalyst for similar violence, which places the fate of Kenya in the hands of Mr Chebukati and his team.

Ten days to the statutory deadline for the IEBC to have tested the elections technology, the process is shrouded in secrecy, which civil society groups warn is a recipe for disaster.

The groups are now want IEBC to come clean on how problems that botched the results transmission, causing nullification of the presidential election five years ago, have been resolved.

Section 44 sub-section (4) (a) and (b) of the Elections (Amendment) Act of 2017 mandates the IEBC to procure the required technology at least 120 days before the election date. As the General Election is due on August 9, the technology should have been acquired by May 9.

The law further directs the commission to test, verify and deploy such technology at least 60 days before the election date. The deadline for that, thus, is June 9.

Although the commission insists that all is well and that it has acquired the necessary technology, civil society groups and political groupings are worried that the process is needlessly shrouded in secrecy.

Certified copies

Among them is William Ruto’s Kenya Kwanza alliance, which has tabled a raft of demands to the IEBC. On May 25 it told IEBC that it must make public a report by audit firm KPMG on scrutiny of the voter register as well as the raw certified copies of the principal voter register.

The DP’s camp also demanded clarity on how polling stations will accommodate the expected high number of agents, and also wanted a detailed account of the electoral process—voting, tallying and result transmission —in light of the concerns over the number of polling stations without 3G network coverage, which makes electronic transmission of the vote count impossible.

The head of DP Ruto’s presidential campaign team, Turkana Governor Josphat Nanok, and UDA Secretary-General Veronica Maina, said these are the “irreducible minimums” IEBC must address to restore public confidence in the electoral process.

“We want to learn what it is that was found in that register and what corrective actions are going to be put in place,” Mr Nanok told Mr Chebukati.

The IEBC boss responded that the Commission was transparent and would engage all the stakeholders within the specified timelines to ensure free and fair polls, hence no cause for alarm as the KPMG audit was still ongoing and its report would be made public.

“The recommendations will be adopted and shall be incorporated in the register,” he assured and added that the voter register would be ready on or before June 9.

Address the shortfalls

More pressure for Chebukati and his team came last Friday when Mr Odinga’s Azimio la Umoja One Kenya Coalition running mate Martha Karua waded into the matter, challenging IEBC to address the shortfalls that led to the 2017 Supreme Court decision.

“We should be briefed on how they intend to conduct the elections, the tools they intend to employ and, most of all, how they have addressed the shortfalls that made the court nullify a presidential election,” she told a civil society forum in Nairobi.

She pointed out that it’s unwise for the country to go into another election without addressing the issues the court observed.

“If they have addressed the issues, we need a brief and if they haven’t, we must demand a brief,” she said.

The Kenya Chapter of the International Commission of Jurists (ICJ-K) and the Election Observation Group have also questioned the IEBC on its continued silence on the matter, which, they argue, is critical to poll integrity and the nation’s stability.

“We don’t think IEBC is ready for the poll,” said Ms Elsy Saina, Executive director of ICJ-K. She added that the commission has been cagey with information on the Kenya Integrated Elections Management System (Kiems) and the Biometric Voter Registration (BVR) kits.

However, commission CEO Marjan Hussein Marjan insists the agency is ready for the polls.

“Insofar as deployment of the election technology is concerned, we’re within the required timelines. The technology has been deployed in some electoral processes as demonstrated in the ongoing register preparation, inspection, and verification processes and is ready for deployment in the August 2022 General Election,” Mr Marjan told the Nation.

The IEBC, he said, will only deploy the technology in accordance with the law, suggesting it could be subjected to test runs in early June.

“The exact date will be communicated to all stakeholders in good time,” he said.

However, even with Mr Marjan’s assurances, the IEBC is offering scant details on what it has done to rectify the problems that led to annulment of the presidential poll. Ms Saina of ICJ-K argues “the public has the right to know what technology IEBC will deploy” and whether the commission has updated the Kiems or BVR kits.

Mr Mule Musau, the National Coordinator of the Election Observation Group (Elog)—a collection of civil society groups that monitor elections—criticised IEBC for doing little to address the technology queries despite the pitfalls witnessed in the last two general elections.

“You cannot behave in the same way over and over and expect different results,” said Mr Musau in an interview with the Nation. “With two months to go, everything about the technology is misty.”

Mr Musau questioned the proposals in the Elections (Amendments) Bill, 2022, saying, the timing was proof of sloppy preparation on IEBC’s part.

“The nature of the proposed amendments is tedious and makes a mockery of the whole idea of electronic transmission of results,” he noted, with reference to the requirement in the Bill that, the results will only be announced after the national tallying centre receives all hard copies of results announced at the constituency level. This, he argued, essentially makes the transmission of results manual rather than electronic.

Another major challenge is 3G internet connectivity to facilitate results transmission from polling stations.

When he appeared before the Justice committee of the Senate in April, Mr Chebukati said the commission does not know the number of polling stations without 3G internet coverage.

Some 11,155 stations—some just a few kilometres from the capital city in Kiambu County—were identified as having fallen outside the network, which contributed to the nullification of the 2017 presidential poll.

On top of this is the puzzle of the connectivity of the 2,800 centres used to register new voters that have been earmarked as new polling stations.

The IEBC has shared the coordinates of the centres with the Communication Authority (CA) to determine if they fall within the network.

Lack of g3 coverage

CA boss Ezra Chiloba, who came under fire over questions of neutrality in 2017 while serving then as the poll agency’s CEO, didn’t respond to questions IEBC has constantly made on the lack of 3G coverage.

These issues are critical for this election as the key plank of Mr Odinga’s 2017 presidential petition revolved around the electronic results transmission system and associated documentation, which he successfully argued were deliberately manipulated to deny him victory.

The Supreme Court ruled that the IEBC had failed to conduct the elections according to the law, and that the entire process had not met the threshold of a transparent, credible and verifiable poll.

The court ruled that major “irregularities and illegalities” in the electoral process centred on the transmission of results.

Technology has become a key component of the Kenyan electoral process since 2013, when it was first deployed to cure the 2007 election challenges that led to the 2007/8 post-election violence.

This was bolstered by the 2017 Court of Appeal ruling in the Maina Kiai case that fortified the role of technology in the electoral process.

However, in the current scenario, the IEBC has submitted to Parliament the Elections (Amendment) Bill, 2022, which, if enacted, would give the commission alternative methods of relaying presidential results.

Despite its late submission, the Bill is seen as IEBC’s attempt to address issues the Supreme Court identified in its unprecedented decision in the Odinga case in 2017.

The aim of the Bill is to provide for a complementary mechanism of results transmission and also address the issues raised by the Supreme Court when it nullified the 2017 presidential results.

The proposals have been opposed by MPs allied to Mr Ruto, who have linked the amendments to an alleged scheme to rig the poll.

But how did we get here? While the IEBC began all procurement early, it pushed the timelines on deploying technology to the last minute. It initiated the procurement processes and awarded and signed contracts early so as to avoid the pitfalls of the past when litigation on procurement of materials spilt over to the eve of the 2017 polling day. And then, somehow, at the last minute, it appears to have dropped the ball.

The procurement of technology for the 2022 elections began in April 2021 with an open tender, followed by signing of a contract in November of the same year.

The Sh4 billion tender for the supply of Kiems kits was awarded to Dutch firm Smartmatic, and includes delivering, installing, testing, commissioning, supporting and maintaining the kits.

It also involves maintaining the software and hardware equipment and accessories for running the elections.

The last two general elections have been marred by technological problems, especially in transmission of presidential results. The net effect has been creating doubt on the polls’ integrity.

For instance, laptops and mobile phones deployed in the 2013 elections ran out of battery power, some polling stations had no electrical outlets and officials were poorly trained on how to use the new election software, and lacked access to basic PIN numbers and passwords needed to operate it.

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