Kenya 2022: Do the elections risk failing the credibility test?

By Jeff Otieno
Posted on Tuesday, 16 August 2022 11:39

Kenya's election results are announced
Independent Electoral and Boundaries Commission (IEBC) Vice-Chairperson Juliana Cherera addresses a news conference where she disowns the presidential elections results in Nairobi, Kenya August 15, 2022. REUTERS/John Muchucha

Kenya's general election, which had been praised by international observers, risks failing the credibility test after commissioners of the electoral body differed over the final presidential results. Are we staring at another bungled election?

Kenya is at risk of a major political crisis after four commissioners of the Independent Electoral and Boundaries Commission (IEBC) disowned results that declared William Ruto as Kenya’s president-elect.

IEBC Chairman Wafula Chebukati announced the contentious results under tight security after a closed door meeting by the seven commissioners failed to reach a common agreement on the presidential vote.

The Bomas of Kenya auditorium – where the tallying of the results had taken place – was turned into a battleground after word went round that the commissioners had failed to agree on the final results.

We cannot take ownership of the result that is going to be announced because of the opaque nature of this last phase of the general election.

The contested figures showed that Ruto garnered 50.49% of the total vote (7,176,141) against Raila Odinga’s 48.85% (6,942,930).

At one point, party agents from the Azimio La Umoja Coalition stormed the podium to prevent Chebukati and his fellow commissioners Abdi Yakub Guliye and Boya Molu from declaring Ruto the winner, arguing that the figures had not been verified.

Kenya's election results are announced
People engage in a scuffle with the security officials as they block the IEBC chairman from making election result announcement at the IEBC National Tallying Centre at the Bomas of Kenya, in Nairobi, Kenya August 15, 2022. REUTERS/Monicah Mwangi

Security officers had to whisk away the three commissioners to safety as Azimio and Kenya Kwanza supporters exchanged blows and threw chairs at each other.

“We will not allow rigged elections. Chebukati promised Kenyans free and fair elections hence we demand nothing less,” said Azimio Coalition’s Chief Agent Saitabao Ole Kanchory, who was thrown out of the auditorium by police officers for causing disturbance.

Diplomats flee for dear life

Diplomats from various embassies and international organisations, who had been invited to witness the occasion, ran towards the exit door to avoid being caught up in the melee.

The 15-minute fight left scores of supporters from both camps injured. However, order was later restored and the ceremony proceeded peacefully.

Chebukati said the IEBC had been working under difficult situations due to constant threats and intimidation, but had remained firm to fulfil its constitutional mandate of delivering a free and fair election.

“Right now, two of my commissioners are injured. They are being treated. Some of our staff have been profiled, others have been arbitrarily arrested and we do not know where they are,” he said.

“I took an oath of office to serve this country. This is the last election I am presiding over and those who will come after us will find that we have laid the foundation that the constitution envisaged, which is the creation of  an independent electoral commission,” the IEBC chair said.

On 12 August, Chebukati announced that the returning officer for Embakasi West constituency Daniel Mbolu Musyoka had disappeared. Musyoka was found dead four days later.

Opaque elections

Before Chebukati declared the presidential results on 15 August, four commissioners held a press briefing at Nairobi’s Serena Hotel to explain why they would not be attending the ceremony at Bomas of Kenya.

“We cannot take ownership of the result that is going to be announced because of the opaque nature of this last phase of the general election,” said Juliana Cherera, the IEBC vice-chairperson, who was in the company of commissioners Francis Wanderi, Irene Masit and Justus Nyang’aya.

“We are going to give a comprehensive statement… and again we urge Kenyans to keep calm. There is an open door that people can go to court and the rule of law will prevail,” Cherera said.

The split within the commission stole the thunder from an otherwise well-organised ceremony, which was supposed to celebrate the culmination of the prolonged verification process of election results.

Earlier, the Azimio Coalition had also held a press conference alleging that IEBC’s system had been hacked and some staff members had admitted committing electoral offences.

“I had earlier stated that Bomas of Kenya was a crime scene. A result that is not verifiable is not a result,” said Ole Kanchori, the Azimio coalition’s agent.

Lack of quorum

Odinga’s spokesman Makau Mutua, supported these sentiments saying “any results IEBC Chairman Wafula Chebukati announces are invalid because he had no quorum of commissioners to hold a plenary and make such a weighty decision”.

Lawyer Donald Kipkorir made a similar argument, noting that according to the IEBC Act, decisions are held by the majority.

The law does not demand quorum. Differently put, [the] walkout by four commissioners taints, but does not invalidate the results

“Any decision by the minority three commissioners at Bomas will be null and void. Chebukati’s pronouncement will be voided by the Supreme Court,” said Kipkorir.

However, lawyer Steve Ogola differed, arguing that Article 138 (10) of the constitution stipulates that the chairperson of the commission shall declare the results irrespective of dissent.

“The law does not demand quorum. Differently put, [the] walkout by four commissioners taints, but does not invalidate the results,” Ogola said.

Odinga’s running mate Martha Karua hinted that Azimio Coalition may head to the Supreme Court. “It is not over until it is over,” she said in a tweet.

‘Elections were above board’

In his acceptance speech, Ruto however defended the election, saying it was done above board and should be accepted by all.

“It is a wonderful evening. The people have spoken and all sovereign power belongs to the people of Kenya,” the deputy president said, describing Chebukati as a “hero”.

He promised to be a president of all, urging Kenyans to forget the past and  focus on the future.

“To those who have done many things against us, I want to tell them there’s nothing to fear. There will be no vengeance. We do not have the luxury to look back,” he said.

Supreme court decision

John Charo, a political analyst, says it seems possible that the Supreme Court will determine the outcome of this year’s presidential election.

“The Supreme Court will either uphold Ruto’s win or nullify it. There is a chance Kenyans might go back to the ballot,” Chao said.

Candidates or other individuals have seven days to file any challenge over the election results. The Supreme Court will have 14 days to rule.

This was the first time the 55-year-old Ruto ran for president, unlike his competitor Odinga who has made five attempts without success.

Ruto’s win seems to be sweet revenge seeing as he was sidelined after President Kenyatta and Odinga called a truce in 2018 and later backed the former prime minister’s bid to succeed him.

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