Kenya: Revealed – Flaws in Presidential Election
The Nation (Nairobi)
8 May 2008
Posted to the web 8 May 2008
Loopholes that give returning officers unlimited powers to determine the results announced in tallying centres during presidential elections were exposed on Wednesday.
Senior officers of the Electoral Commission of Kenya said the figures returning officers announce can only be challenged within 24 hours after which a winner is declared. Only an election petition can overturn the results.
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This means that the word of returning officers at the constituency level can override objections raised by agents for presidential candidates when it comes to compiling the national tally.
The revelations also raised the possibility of figures at constituency level being changed at the national tallying centre.
This emerged as the Kriegler commission, probing into events leading to last year’s disputed presidential election results, heard presentations from top ECK officers for he second day running.
On Tuesday, the officers, led by ECK secretary Suleiman Chege, had been questioned about the practice of giving voters different ballot papers – one at a time – for presidential, parliamentary and civic seats.
Some members of the Kriegler commission felt that the system could be abused by allowing voters to cast three ballots for a presidential candidate, and that a better way was to give out the three ballots at once.
The session, at Kenyatta International Conference Centre in Nairobi, rekindled memories of the disputes and chaos which followed the announcement of last year’s presidential election results at the same venue.
The Orange Democratic Movement (ODM) disputed the tallying which gave President Kibaki victory over Mr Raila Odinga, now the Prime Minister.
More than 1,200 people were killed and over 350,000 displaced during the violence which erupted soon after the announcement of the disputed results. Peace was restored when President Kibaki and Mr Odinga signed a power-sharing deal on February 28.
Members of the Kriegler commission heard that ECK has 48 hours – after receiving a petition – to resolve the disputes after which only an election petition can change the figures.
According to electoral rules, ECK is supposed to direct a recount or a re-tallying of the votes depending on the nature of the complaint.
There are currently more than 30 parliamentary election petitions pending before the High Court.
Late last year, ODM disputed results announced by ECK in several constituencies and alleged anomalies at the tallying centre.
President Kibaki had been trailing Mr Odinga but overtook the ODM candidate when results from parts of Central and Eastern provinces were released, sparking an outcry from ODM agents at the KICC tallying centre and protests by party supporters in various towns across the country.
It emerged that returning officers wielded so much power in determining the candidate who won an election because they results they transmitted to the ECK headquarters were deemed to be final.
Said Mr Chege: “It is always assumed that whatever results are brought to our headquarters by the returning officers are correct, that is why they are normally announced as the final results.”
According to ECK electoral rules, other officials did not have the power to make alterations on the results announced at the polling stations.
“These officers are supposed to remain accountable for their actions even if their job has been completed. They can still be called upon to give evidence in court if need be,” Mr Chege said.
Returning officers are also expected to provide all documents to the commission’s headquarters including form 17 – the certificate of results in parliamentary election and form 17 A – a declaration of the election result, both presidential and parliamentary at the constituency level.
He is also expected to present Form 16 – the certificate of results of presidential elections – and form 16 A – the presidential and parliamentary election declaration of the election results at the polling station.
Mr Chege was responding to queries from commissioner Francis Aywa who also wanted to know what happens if the returning officer did not bring with him all the required documents to the tallying centre just before the results were announced.
The secretary said that in such instances, returning officers are issued with fresh forms to fill at the commission’s headquarters.
The revelations sparked fears from members of the Kriegler commission that this could be used to manipulate the results in favour of an individual. However, Mr Chege said that all documents related to the elections were intact and available and could also be produced on demand except in areas where the vote counting process were marred by violence like Kamukunji constituency.
Present during the session were Mrs Jemimah Keli, ECK’s senior legal officer and Mr Philip Chepsat, the elections manager.
The Kriegler commission was represented by Justice Johann Kriegler, who is also the commission’s chairman, the Vice Chair Lady Justice Imani Daud Aboud and commissioners Horacio Bonee from Argentina, Prof Marangu M’Marete, Mrs Catherine Muyeka Mumma, Ms Lucy Kambuni and Mr Francis Angila Aywa all from Kenya. Also present was Mr Jorgen Elkilit, the Kriegler commission’s secretary.
The Kriegler commission is among others expected to assess ECK’s efficiency and its capacity to discharge its mandate. It will also investigate the vote counting and tallying for the entire election and investigate the organisation and structure of the 2007 electoral operations among other key issues.