PRESS STATEMENT ON THE FRESH PRESIDENTIAL ELECTION:
1. Yesterday, we learnt through media reports that the IEBC plans to hold ta fresh presidential election on 17th October 2017. The purported notification by the IEBC is both unconstitutional and unlawful to the extent that it calls for an election that is not provided for under Article 140 of the Constitution.
Article 140 of the Constitution contemplates a fresh election in which any eligible Kenyan can participate including a candidate who may have not taken part in a previous election. It is also an erroneous interpretation of the law that only two candidates will participate in a fresh election.
2. We condemn the fact that the IEBC did not consult the parties involved before making a determination on the date of the said election but seemed to be taking instructions from Mr. Matiang’i. It is our view that the date of the fresh election be a product of consultation with concerned parties and not a unilateral decision imposed on the people of Kenya.
3. Given the special circumstances of the fresh elections, we believe that the IEBC should take measures to ensure that the fresh presidential election meets the standards contemplated under Articles 81, 86 and 138 of the Constitution and other relevant provisions of the law. The following considerations must inform the planning of the fresh presidential election.
4. The IEBC has not purged the contempt it committed in regard to the orders of the Supreme Court. The IEBC is under obligation under Section 44 of the Elections Act to provide a system of technology that is transparent and verifiable. It is therefore inappropriate and foolhardy for the IEBC to embark on the planning of a fresh election without full compliance with the Supreme Court Orders and in the redeployment of technology in the fresh presidential election.
We therefore demand audit of technology in use in full compliance with the law.
5. Establish a transparent and accountable framework for integration of technology: In order to secure compliance with the principles set out in the Constitution and the electoral law, the IEBC must take immediate steps to engender transparency and accountability in the electoral planning and infrastructure. Technology integration must be done transparently and must be amenable to a full audit by the IEBC and stakeholders. We demand a clear realistic plan to achieve transparency and accountability through the planning, implementation and audit phases. All partners engaged to provide electoral technology solutions must be known to the Kenyan people, their roles defined and accountability mechanisms set up.
6. The French company Saffran was involved in subverting the will of the people of Kenya. Through an unaccountable process Saffran developed a system that is in violation of Sections 39 and 44 of the Elections Act by failing to comply with the prescribed format of result management data. The company provided for transmission of text messages that could be manipulated and were not backed by the primary statutory election result declaration forms 34A or 34B. This did not enhance transparency and accountability. We call upon the French Government to initiate investigations on this company and its relations with the officials of the IEBC who may have acted in complicity and connived to undermine the will of the people of Kenya.
7. Review of the electoral infrastructure (register of voters and polling stations): On 8th August 2017, it emerged that there were discrepancies in the voter register owing to the failure to maintain one voters roll of all registered voters. Thus it is impossible to know the number of persons who turned up to vote on the elections held on 8th August 2017 without full disclosure on the complementary methods used and the identities of such voters. It also emerged during the hearing of the petition that IEBC used polling stations which were not gazetted in accordance with the law and regulations. It is important to have full clarity in relation to the voters’ register and the polling stations. We demand that the IEBC gives access to and publishes all reports of the transaction logs in relation to the persons identified using the KIEMS system and all persons identified through complementary methods.
8. Enhanced transparency in the planning and operations of the fresh election: During the preparation for the elections held on 8th August 2017, the biggest challenge was lack of transparency and accountability on the part of the IEBC. We demand that the Commission undertake immediate steps to enhance its transparency and accountability mechanisms. In this regard we demand as follows:
• Establish a technical monitoring committee with representatives of the main political parties, coalitions or candidates to provide oversight to the preparation, management and conduct of the electoral process.
• Appoint and gazette returning officers who are not among the ranks of the Constituency Election Coordinators in consultation with relevant stakeholders including political parties.
• Subject to the procurement law, agree on a framework for printing of ballot papers and result declaration forms including monitoring of the same.
• All Forms 34Bs should be preprinted indicating the names of polling stations in the constituency and names of candidates. Returning Officers to manually fill the Forms in the presence of agents after conducting an open tally. There should be no use of Excel documents in tabulating elections results. Electronic management of results can only be done using the integrated system and must involve scanning of Form 34B.
• Al-Ghuriar should not be considered for the printing of ballot papers or result declaration forms for the fresh election or any other election.
• Elections results be transparently declared, tallied and announced at the Constituency level. Only scanned images of the prescribed election results declaration forms sent through the KIEMS kits or results transmitted by Presiding Officers and Returning Officers may be tabulated. At the National Tallying Center the IEBC should only announce results after tabulation at the Constituency level. No results should be displayed unless political parties’ and candidates agents are given full access to all transaction logs and databases. IEBC portal or any publication platform should only display scanned images of result declaration forms.
• Candidates’ agents should be part of receiving teams at the constituency and national tallying centers. Receiving teams to verify all Forms 34As delivered and confirm that accurate entries are made on the Forms 34Bs and sign off before announcement is made at the constituency level.
9. Establish defined roles of the security agencies and eliminate undue influence by the provincial administration and other public officials: The IEBC has adequate protection under the Constitution and the law. Kenyans have made sufficient and appropriate investments in the Commission. Public officials engaged to work during elections must be known and their roles defined. There must be no role for the provincial administration and any security agencies that are not directly engaged by the Commission.
10. Secure critical changes in the Secretariat: Independence of the IEBC is not negotiable. NASA coalition demands that fresh election should be administered by a professional and non partisan officials. We demand that officials who are partisan or perceived as such should step aside and or be suspended during the planning and execution of the fresh election. These officials include:
1. Ezra Chiloba (Commission Secretary and CEO)
2. Betty Nyabuto – Deputy Commission Secretary (Operations).
3. James Muhati, Director ICT
4. Immaculate Kassait, Director Voter Registration and Elections Operations.
5. Praxedes Tororey, Director Legal and Public Affairs.
6. Moses Kipkogey, Manager Legal Department and Advisor to the CEO.
11. We note that the international community and the media have appreciated the concerns we raised before and after the election. They have lauded the Supreme Court judgment as historic and unprecedented. We call upon them not to be complacent or be misled during the planning and execution of the fresh election
12. There will be no election on the 17th unless the specific demands herein are honoured. We demand nothing less than a fully transparent and accountable electoral process. IEBC seems anxious to reach an outcome it desires.
13. Rigged elections are not only treasonable but destroy the republican and constitutional foundation upon which our government is established. The people, who are sovereign, are therefore justified to reject the establishment of such government.
14. IEBC is becoming rogue and unhinged; it is turning out to be a tool of political bandits whose desire is to wield power outside the constitutional remit and edifice.
15. We make these demands because the law requires that there should be transparent acquisition and disposal of information and communication technology assets and systems including the testing and certification of systems and mechanisms for systems audit. Stakeholders are entitled to access to electoral system software source codes. These are the statutory guarantee towards ensuring the conduct of free and fair elections. We demand no more and no less.
Rt. Hon. Raila Amolo Odinga
HE. Kalonzo Musyoka
Hon. Musalia Mudavadi
Hon. Moses Wetangula
H.E Isaac Ruto
HE. Peter Munya
NATIONAL SUPER ALLIANCE