A terse warning by two outgoing electoral commissioners to a top Jubilee official on the difficulty of winning the 2017 presidential contest under the revised electoral management system triggered the fierce battle to change the election laws, the Nation can report.
The message by the two commissioners who presided over the 2013 elections, and who have insider information on the voter register and other preparations by the Independent Electoral and Boundaries Commission (IEBC), elicited a strong reaction from the Jubilee leadership and triggered a series of events culminating in legislative changes whose key element was to allow a manual backup in case the electronic identification of voters and transmission system for results failed.
The informal meeting over the lunch hour took place at a five-star Nairobi hotel on December 11.
After hearing the message, the top Jubilee leader is said to have left the lunch meeting in a hurry to relay the message to his bosses.
“He was shocked to the core, attempted to continue enjoying his meal but he couldn’t proceed. He didn’t finish his food,” the source said.
The Jubilee side has argued that numerous locations around the country are not covered by mobile network and it will be a dangerous gamble to go to the election without a manual backup. But the Cord side says only an electronic system can guarantee a clean election. It has pointed to the government’s claims to have enhanced rural electrification and the digitisation of operations including at the Kenya Revenue Authority and the M-Pesa money transfer service meant that a 12-hour operation such as an election could easily be handled electronically.
The commissioners are said to have presented various scenarios — if the Jubilee presidential ticket ran against one main opposition candidate — backing them with the latest numbers of registered voters from all regions.
The message has since become the turning point to the extent of forcing Jubilee to make an about-turn on negotiated bipartisan laws passed three months ago. Immediately Jubilee is said to have embarked on a strategy that would see Mr Kenyatta secure a second term in office.
Leader of Majority in the National Assembly Aden Duale would later meet National Assembly Speaker Justin Muturi to recall members from recess to pass the amendments in a stormy session on Tuesday and a subsequent one on Thursday that saw opposition MPs walk out in protest.
Mr Duale on Saturday denied that any such meeting took place.
“That’s wild imagination of a confused coalition called Cord,” he said.
Mr Duale said Jubilee was confident of its re-election and said the opposition was “a gang of failed politicians who all of them together stood against us in the last General Election. Musalia Mudavadi was in the same camp and got less than 500,000 votes. Raila Odinga, Kalonzo Musyoka and Moses Wetang’ula were on the other side and we beat them by close to a million votes. We will still beat them.”
On Saturday, outgoing IEBC chairman Issack Hassan said his team of eight commissioners was no longer engaged in the day-to-day affairs of the institution and would, therefore, not give such information to Jubilee. He added that it was the commission chief executive Ezra Chiloba who was dealing with all matters concerning the forthcoming elections until a new team picked from a list sent to President Kenyatta on Thursday takes office.
However, IEBC insiders say some commissioners have been reporting to work even after tendering their resignation. They argue that the negotiated law that prompted their exit provided that they should leave only when a new team is formed.
But Samuel Chepkonga, the chairman of the Justice and Legal Affairs Committee, that has put forth the amendments, says the current law requiring the use of electronic voting without the manual option is impractical.
“In fact, that law is inconsistent with Public Procurement Act. Their law contradicts other laws. They came up with a law that cannot be implemented and threw everyone into disarray,” he said.
He added that it would be unfair for IEBC to be asked to transmit results electronically and they are not a telecommunication company to start installing equipment.
“IEBC would need a telecommunication department to achieve this task. And secondly, have they requested for this budget? Of course no. it was not in the procurement plan. You cannot ask IEBC to approve a major policy shift when they are new in office,” he said.
Part of the amendments this week were to remove the deadline of eight months before election for procurement of technology-related goods and services. If the Senate adopts the amendments next week, the timeline will be cut to four months.
“Now IEBC is saying that without anyone going to court to challenge, the first equipment would be delivered on April 3 and, if someone goes to court, then the entire thing goes haywire,” the Ainabkoi MP said.
Senate Speaker Ekwee Ethuro recalled members on Wednesday since the proposed legislation affects counties.
On Saturday, Speaker Muturi ruled out the option of referring the contentious proposals to a joint committee like the one which came up with the parent law.
“The bipartisan committee finished its work. Suggesting that we refer the matter to the committee is wrong, it’s like saying that we go back to committee of experts because they came up with the constitution, or Americans go back to their founders every time they need an interpretation. The committee finished and the law was signed by the President. Any Act of Parliament is amendable by Parliament. And in amending, Parliament doesn’t need to recall the committee. They finished their job and became functus officio (an officer or agency whose mandate has expired),” he said.
Section 44 (1) of the amended Elections Act, 2011 which Jubilee is seeking to repeal requires IEBC to establish “an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.”
Some of the amendments adopted by the National Assembly provide for a manual register as an alternative in the event the biometric system fails.
Biometric Voter Registration System (BVR) and Electronic Voter Identification System (EVID) are some of the most common devices employed in elections.
BVR, which comprises a laptop, a finger print scanner and a camera, is used for registering voters. It captures a voter’s facial image, finger prints and civil data or Personally Identifiable Information — name, gender, identity card/passport number and even telephone number. EVID is an electronic poll book with finger print reader.
The opposition, led by Cord principal Raila Odinga, argues that like it was the case for the twin by-elections in Kalokol ward in Turkana and Mosiro in Kajiado last October where the IEBC relied on satellite to relay the results because of unpredictable Global System for Mobile Communication coverage, nothing stops it from deploying the same system next August.
Cord is opposed to the amendments, saying the electoral laws were a result of a negotiated agreement among other contentious issues and that Jubilee is acting in bad faith. The opposition has called for street protests from January 4.
Sources also say President Kenyatta’s strong statement against “foreigners” interfering with elections and a subsequent coordinated attack by Jubilee politicians against the International Foundation for Electoral Systems, which has been offering technical support to IEBC and previous commissions since 2002, for supposedly working to rig in the opposition, was informed by a briefing that foreigners could “hack” the electronic system.
But Jubilee has dismissed claims that it is running scared.
“There is nothing new in that (Nasa) team,” said Mr Duale. “This is a reincarnation of an old team. Our team is intact, our voting bloc is solid and we have made serious inroads in their strongholds of western Kenya, Kisii, Coast and Ukambani so why should we panic,” he said.
However, Mr Odinga says Jubilee is scared of the electronic system that would require each voter to be physically present to get their biometrics taken.
“We don’t want a scenario where dead voters wake up, vote and return to their graves like we have witnessed in the past elections,” he said
Suna East MP Junet Mohamed (ODM) said the opposition will do all it takes to safeguard the credibility of the 2017 elections.
Mr Raphael Tuju, the head of Jubilee secretariat writing in the Saturday Nation yesterday, said: “There simply has to be manual backup and the pretence that it is devoted to rigging is utter claptrap.”
President Uhuru Kenyatta this week hit out at some opposition MPs in Parliament.
“In the National Assembly representing our democracy, there are plenty of idiots who continue insulting me but that’s their freedom.”
By WANJOHI GITHAE for The Nation Newspaper