The CIHA Blog is pleased to post the final two installments of our series on the 2022 Presidential elections in Kenya. We thank Timothy Khabala for his informative and detailed analyses.
The following is the penultimate post in the series.
The CIHA blog is fortunate to have Timothy Khabala (Luce Graduate Fellow from Hekima Institute of Peace Studies and International Relations) and the team at Hekima for providing frequent updates on the Kenya elections. Timothy has trained elections officers at a constituency level and subsequently served as a Presiding Officer at a polling station.
On Monday, 15 August 2022, Dr. William Samoei Ruto was declared the President-elect, beating his close rival Mr. Raila Amolo Odinga by a razor-thin margin of slightly more than 200,000 votes. The tightly contested election recorded the lowest voter turnout in the last 15 years (Luke Anami 2022). This left many Kenyans speculating the likelihood of a run-off, if neither Ruto nor Raila garnered the 50%+1 votes threshold to become the fifth President of the Republic of Kenya. In a turn of events, Ruto’s 50.49% victory over Raila’s 48.85% in the August 9, 2022 elections was challenged at the Supreme Court of Kenya (SCOK).
Eight petitions challenging Ruto’s victory (and one counter-petition) were filed at the SCOK by Monday 22 August 2022. They included the ‘Azimio la Umoja’ petition by Mr. Raila Odinga and his running mate, Ms. Martha Karua. In their petition, the duo listed the Independent Electoral and Boundaries Commission (IEBC) and its Chair Mr. Wafula Chebukati as the 1st and 2nd respondents, respectively. The other six IEBC Commissioners were also listed as respondents, with President-elect Dr. Ruto closing the list. Mr. Raila Odinga and Ms. Martha Karua made a litany of allegations hinged on their premise that the August 9, 2022 General Elections were conducted in a manner that was in disregard of the Constitution, the rule of law and national values, principles of good governance, and the lawful authority of the Court. Mr. Raila and Ms. Karua’s petition had 23 prayers that included: compelling the IEBC to tally and verify the presidential votes and declare them President-elect and Deputy President-elect; a forensic audit by their preferred IT specialists (under the supervision of the IEBC) of all equipment, systems and technology used by the IEBC in the presidential election and Mr. Chebukati to be declared unfit to hold public office, among other prayers (Sam Kiplagat 2022).
Mr. Raila Odinga and running mate Ms. Martha Karua during the submission of their petition challenging the presidential election results at the Supreme Court on 22 August, 2022. PHOTO | RICHARD MUNGUTI | NMG
The ‘Azimio’ petition poked holes in the leadership of Mr. Chebukati by alleging that his tenure at the IEBC witnessed a clear trend of ineptitude in running the “commission in accordance with constitutional principles including observance of democratic values and principles; inability to operate within the collegiate framework as required under Article 138 of The Constitution and the IEBC Act No. 9 of 2011” (Fridah Naliaka 2022). The petition further stated that the presidential results lacked transparency, accountability, verifiability and efficiency. The duo concluded that Dr. Ruto did not achieve the 50% +1 votes requirement to be declared the presidential winner in the August 9, 2022 General Elections. Mr. Chebukati, who was serving his last term as the Chairman of IEBC, has been in office since January 2017. He presided over the 2017 presidential elections that were challenged in the SCOK and annulled on the basis of being unverifiable.
Intentional flaws or accidental failures?
Mr. Raila and Ms. Karua’s petition pointed to an electoral process that was marred by flaws. Corroborated by the other seven petitions, the flaws seem to have been intentional rather than accidental. The petitions alluded to gross interference with the integrity, credibility and security of the election occasioned by ‘unauthorized’ access to the electronic transmission of the presidential results, among other irregularities. The petitioners claimed that this ‘unauthorized’ access resulted in the manipulation of presidential results in favour of Dr. Ruto. This damning revelation shocked Kenyans and the international community, coming after numerous observers lauded the IEBC for conducting credible elections characterized by peaceful conduct, during and immediately after the polling process (Wycliffe Nyamasege 2022).
Former PS Governance and Ethics and anti-corruption czar John Githongo PHOTO | FILE | Standard Media Group
According to the revelation of one anonymous whistle-blower, anti-corruption activist John Githongo submitted an affidavit at the Supreme Court detailing the charges of the anonymous whistle-blower and supporting the idea that there were intentional flaws in the IEBC’s handling of the presidential results. In his affidavit, Mr. Githongo alleged that the whistle-blower confided in him about how he was part of a team that manipulated presidential results. The ‘Team’ (as it was referred to) comprising 56 ‘techies’ had a parallel tallying platform dubbed ‘Uchaguzi (elections) Tallying’ where Forms 34A from the Kenya Integrated Election Management System (KIEMS) kits from the polling stations were intercepted and channelled for editing before they could be uploaded on the official IEBC public portal. The ‘Team’ further had access to the back-end processes of the IEBC server for the purpose of verifying what was being tallied. All this was not accidental; it had the blessings and knowledge of the Chair, read Githongo’s affidavit. The main aim was to systematically reduce Mr. Raila’s votes in his strongholds and add them to Dr. Ruto’s on one hand, and on the other hand, increase Dr. Ruto’s votes in his strongholds while reducing Mr. Raila’s, adds Mr. Githongo’s affidavit (Njoki Kihiu 2022). These shocking revelations, coupled with the bolting out of four out of seven IEBC Commissioners from the presidential tallying centre on Monday, 15 August 2022, a few hours prior to the declaration of Dr. Ruto as the President-elect, and disassociating themselves with the said results, provided the Supreme Court with a considerable account of events to study. The seven-judge bench headed by Hon. Chief Justice Martha Koome (who had barely been in office for 16 months) was then tasked with the delicate duty of studying the petitions and prescribing whether they merited a hearing in the honourable Court. Justice Koome is the first female Chief Justice of Kenya and the third after the promulgation of Kenya’s new Constitution in 2010. The previous Chief Justices were Retired Hon. Justice Willy Mutungu, who upheld the presidential victory in 2013 and Retired Hon. Justice David Maraga, who annulled the 2017 presidential elections. All eyes then turned to Chief Justice Koome and her bench to see how they would dispense justice.
Peace, peace and more peace
As the focus shifted from the IEBC to the Supreme Court, politicians, the clergy, civil society and the media owners association continued to preach peace. Kenyans were asked to be tolerant of each other. Kenyans overwhelmingly heeded this call. Many Kenyans resumed their normal routines, with businesses and schools reopening with minimal disruption. However, the IEBC, on the other side, continued to suffer setbacks. Two electoral officers lost their lives in unclear circumstances (Muraya Kamunde 2022 and George Munene & Mwangi Ndirangu 2022). Further, there were allegations of an attempted attack on IEBC officials while preparing responses to the petitions in an undisclosed location in Nairobi on Monday, 22 August 2022. Politicians from all political divides condemned these actions. Kenyans remained hopeful that the Supreme Court’s verdict would be guided by impartiality anchored in the rule of law. The SCOK had until Monday 5 September 2022 to render a judgment that would be final.