Legal Analysis - The Announcement of the 2007 General “Election Results”, the Declaration and Swearing in of Kibaki as President was Illegal…
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1. With the “Election Results” having polarised the country into political, ethnic enclaves and thereby resulting in human rights violations, deaths, displacement, wanton damage to property it is therefore clear that in law individuals and institutions have to be held criminally responsible
2. It is our observation that from the very beginning before and during the election, the conduct of the ECK gave the impression that illegal things were being perpetrated, and in the words of Kivuitu, the Chairman of ECK, the figures were being “cooked”, that would eventually resulted into the illegality we are explaining below. The onset of that illegality lies in a concatenation of events, which portrayed persons bent on committing a crime:
(a). The President defied the 1997 IPPG agreement in the appointment of ECK commissioners; this was clearly intentional to allow President Kibaki to appoint people known to him and people who would have a known bias that would favour him during the 2007 election. This is contrary to the legal provisions and the requirement by law that elections be free, fair and transparent.
(b). ECK has come out in the open to admit that there were irregularities. This means that the Presidential “election results” were not legal
(c). It is admitted that the 2007 is a contested election and opinion polls suggested a close election to call for which utmost caution and care would have been exercised by the ECK especially in adhrerence to the law
(d). The conduct of ECK, its officials was suspect for the reason, among others, that
(i) ECK refused to accept technological assistance that could have averted the current situation
(ii) ECK refused to use its own staff and ECK officials contrary to tradition and in compliance with its own legal framework
3. Several laws, especially electoral laws, were flouted right from the Constitution of Kenya, the National Assembly and Presidential Elections Act (cap.7), the Election Offences Act (cap.66) as well as International and Regional laws/treaties that Kenya has signed and accepted as law as well as common practice and societal expectation
4. The manner in which the election was conducted raises several questions whose answer is a resounding NO in all cases. These questions emphasize the illegality that is now the “Election results” and the swearing in of Kibaki as President of the Republic of Kenya. These questions, among others, are:
4.1. Whether the process and procedures of electioneering were followed to the letter?
4.2. Whether the announcement of the Presidential results was within the law?
4.3. Whether the announcement was valid or did it validate the otherwise contested results?
4.4. Whether there were identified discrepancies?
4.5. Whether the discrepancies affected or had a likelihood of affecting the outcome of the election/results?
4.6. Was the election Free, Fair and Transparent?
4.7. Who are the officers who doctored the results?
5. It has now emerged as there has been many revelations that known individuals who are staff and ECK officials doctored the results by making deceitful alterations. By doing so they refused to comply with the legal requirements; it is also now known that The Chairman of the ECK, Mr. Samuel Kivuitu and other commissioners were blatantly friendly to the regime or other candidates. This therefore means that they could not have been fair and transparent. This is an aspect that makes the results illegal and the outcome of it.
6. The Law allows that before the final results are announced, any aggrieved party must be granted the opportunity to lodge a complaint. The the ODM team did exactly that, it was wrong for the ECK Chairman to deny them the right to be heard and to investigate
7. The ECK acknowledged that there were irregularities in kamukunji, Maragua, Kajiado North, and Kilgoris hence the action it took such as to order repeat and recount: it is therfore clear that ECK was exercising selective compassion and favourism in the conduct of election. This on its own was illegal and would have affected the final pronouncement of the results as void
8. The Announcement of the “Election Results” clearly contravened the following laws:
8.1. The International Laws
Kenya is signatory to many human rights laws with elaborate provisions on elections, voting, democracy and the choice of government as a right to Kenyans. These laws include the following: Article 21 of the Universal Declaration of Human Rights provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives and further that it is the will of the people that shall be the basis of the authority of government. This will, as the UDHR provides, shall be expressed in periodic and genuine elections which shall be universal and equal suffrage and shall be held by secret or equivalent free voting procedures. In the context of Kenya’s 2007 Election result, this international law was breached by the ECK and by Kibaki in attempting to form a government that does not reflect the will of the people.
Article 25 of the International Covenant on Civil and Political Rights recognizes & protects the right of every citizen to take part in the conduct of public affairs, to vote and to be elected… and it requires states to adopt such legislative & other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy rights it protects; and further that democratic government should be based on the consent of the people. With the contested re-election of Kibaki with almost three-quarters of the country, he clearly does not have the consent of the people and cannot therefore enjoy legitimacy.
8.2. Regional documents/Institutions
The African Charter on Human and Peoples Rights protect the right to vote as a human right and the African Charter on Democracy, Elections and Governance (ACDEG) in articles 2 (1)(2)(3)(4)(13) and article 3(1)(3)(4) provide for the choice of government by the people.
8.3. ECK flouted National laws in announcing the “Election Results”
8.3.1. The constitution of Kenya:
Section 7 requires that a Presidential candidate has to win an election first and it is upon establishing the winner then that the delcaration of the results would be made; this would then be followed by announcement of the winner and thereafter the swearing in as per tradition follows. In the absence of establishing a winner in the first instance, there cannot be an announcement, declaration and swearing in. To do that was be to perpetrate an illegality and fraud. The declaration of Kibaki therefore as President is a nullity ab initio. This therefore means that under the legal framework set out in the National Assembly and Parlaimentary Act, the ECK is yet to establish a winner to be delcared as such and to be sworn in according to law. Anything else remains unconstitutional and outside the law.
Section 42A of the Constituton gives ECK the monopoly of registering voters & maintaining the voters register; directing and supervising civic, Parliamentary and Presidential elections. The supervision and directing of elections therefore means that ECK will comply with its mandate, which is to deliver free, fair and transparent election results; the constitution therefore holds ECK accountable for the outcome and gives it the power to be the only institution that can announce election results. In fact, this mandate is clearly spelt out in section 43 of the Constitution.
8.3.2. The National Assembly & Presidential Elections Act, cap.7
Chapter 7 is the legal framework on how the ECK operates and supervises as well as directs the election in Kenya and carry out its constitutional mandate as set out in ss.7, 42A & 43. it is also the legal framework that contains subsidiary legislation and rules on how the ECK should operate. Simply, put, the National Assembly and Presidentail Elections Act sets out the ECK mandate as being to meet the standard of free, fair and transparent elections. This mandate of the ECK is to undertake several activities, functions and to exercise certain powers to ensure free, fair and transparent elections. At any time in pursuit of that mandate, ECK is to act within the law, and if it does acts outside the law, the results to be announced would be null and void and therefore illegal. The following, inter alia, are the functions of the ECK
(i) Appointment of Returning/Deputies officers for every constituency
Both the RO/DPO are people of integrity who are appointed to conduct elections strictly as provided by election laws and expected to abide by the code of conduct set out in s.3B of the Act; They are completely barred from manipulating the process; the law prohibits the employment of any one who has known bias towards particular candidates. It is at this point that an important question arises whether the appointment of the ECK commissioners by the President single handedly and in blatant disregard to IPPG as an interested party in the elections was right. Their appointment in the year the election was going to be held and at a time that is very close to the election itself raised and now continues to confirm suspicions among the electorate and the other candidates. It is at this point that the will of the people begins to ebb away from the government and President Kibaki. Furthermore, it is now clear that some of the commissioners are themselves closer to the President. At least the
16[o1] ECK commissioners appointed by Kibaki during his tenure in defiance of the IPPG agreement are all known and it can therefore be deduced that they must have had a bias in the outcome of the election results.
(ii) In every polling station...
It is the law that in every polling station that free access at all times be allowed to the candidates in person, their agents, police officers on duty, people assisting the physically challenged, accredited observers and the media. At no time whatsoever are the said group of people to be barred from monitoring the entire process in the polling and tallying centres. This is a freedom that is without any qualification to ensure that the process is not only free fair and transparent but it must also be seen to be so.
(iii) After counting...
The PO shall make 3 seperate packets to put (a) counted votes & not disputed; (b) disputed votes, and (c) rejected votes. The foregoing is to be accompanied by a statement to that effected; and the agents present are allowed to add their own seals to the packets; the agents, observers & media are allowed to make copies of the statement, after which the packets and statements are then taken to the constituency RO for tallying
(iv)
What RO must do...[E2]The RO must fill out and sign Forms 16, 16A & 17, which are then countersigned by the candidates’ agents, and then the Forms are physically delivered to ECK HQs
(v) Before announcing the results...
The law requires that before ECK announces any results, the ECK must have in its possession the original copies of Forms 16, 16A & 17A & 40R. These are statutory forms setting out the summary of (a) total votes cast, (b) sets out valid votes or disputed or rejected, and (c) are signed by Constituency RO and countersigned by agents of all candidates. The forms are the principal Documents without which ECK does not have the mandate to announce any Presidential or Parliamentary results
(vi) On receiving the forms & before announcing the results...
An aggrieved party is given 24 hours to lodge a complaint for and demand recount and re-tallying. The law gives ECK the power to order the recount and tallying within 48 hours. Therefore, ECK (and Kivuitu in particular) openly and blatantly lied when it said it did not have power to wait for the Statutory Forms 16, 16A & 17A
(vii) On the forms...
If upon receipt of the forms there are discrepancies, ECK would order recount and retallying. Those mandatory provisions are set out in Rule 40 (1) (g) (ii), and (6) respectively. This is the law Kivuitu failed to follow. Hence Kivuitu was and still is deceitful to the Kenya public; further he abused his office.
(viii) After recount & re-tallying...
It is therefore after re-count and re-tallying upon a request and or complaint by an interested party to an election that the ECK will then announce the results; thereafter the ECK can then gazette those results. Before gazetting results, ECK must confirm that it has received all 3 statutory forms and also that they are original, signed and countersigned and are valid in all material aspects. It is our considered view that the ECK had and still has the above window of opportunity to correct mistakes made and save our country from turmoil and save the democratic process, which is a right of all Kenyans. There is no excuse that Kivuitu in announcing the results did not know what he was doing and it is for this reason that he becomes criminally culpable for which he must be prosecuted.
Next Steps: Legal strategies
The Law as indicated above was not followed in announcing the Election results. Kibaki is therefore in office illegally and it should be taken as if he is continuing his 2002 Mandate and not serving his second term as President of the Republic of Kenya. In as far as the ECK is concerned, they are in breach of the specific provisons of the law, the code of conduct for members and staff of the electoral commission (s. 3B & Second Schedule) as well as its subsidiary legislation. We therefore propose the following legal strategies:
1. Criminal & Private prosecutions
Many people who include Kivuitu, ECK Commissioners, RO, etc, must be criminally charged and prosecuted for committing offences known to law under the Election offences Act, The Penal Code, Public Officers Ethics Act, etc. The offences committed include: forgery of documents, alternation, abuse of office, conspiracy to commit a felony, subversion of legal process, breach of the Electoral Code of Conduct (s.34), for example, under rule 6
It is crucial that a complainant or complainants must come out to report the anomalies they witnessed at the Pollling stations, Constituency RO level and at the HQs talling centers; these could be independent obsevers, members of the KEDOF, agents, etc.,
2. Judicial Review
This could be brought against Kivuitu and the ECK in exercising their administrative role to announce the results; his decision was a maladministration that has caused an injustice to Kenyans; it is also illegal and made in disregard of the rules of natural justice.
[o3] 3. Public Interest Litigation
This could take the form of a constitutional petition or reference to seek decalration based on the anomalies between the constitution and the legal framework of the ECK; to seek declaration that human rights have been violated by actions of the ECK, etc.,
4. The KNCHR Tribubal
The KNCHR should be able to inquire into the human rights violations that have occured to far with a view to holding individuals accountable.
The above strategies can be initiated immediately and simultenously
[o1]We need to confirm this figure.
[E2]Include here the five scenarios that Sihanya observed at the HQs tallying centres
[o3]There is a decision of Kipkalias Kones and Kimani wanyoike vs ECK that has set out that an election dispute cannot be brought to the court through a JR but it MUST be thro’ an electral pettion. We need to get this case.
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