IEBC caught between a rock and hard place in deciding Kethi’s fate

By GEORGE KEGORO
Posted  Friday, July 5  2013 at  18:55

The Jubilee coalition has spent a significant amount of energy seeking to invalidate the candidature of lawyer Kethi Kilonzo who is running for the Makueni senate seat, which was left vacant following the death of her own father, the late Mutula Kilonzo.

The Jubilee coalition has complained that Ms Kilonzo is not registered as a voter anywhere in Kenya and cannot, therefore, be a candidate in the elections. Jubilee has sought to poke holes in the evidence of registration that Ms Kilonzo has provided and has implied that it amounts to a forgery.

The register of voters was an important part of the grievances that formed the substance of the election petitions that followed the presidential election results of 2013, and in which Ms Kilonzo acted as counsel to one of the parties.

The complaint before the Supreme Court was that, contrary to the law governing elections, the IEBC used multiple registers in running the elections, and in the process created several, conflicting, points of reference in relation to the elections.

The situation surrounding the contested candidature of Ms Kilonzo is, in essence, a microcosm of the dispute before Supreme Court where the IEBC argued that, contrary to what it had represented to the public, the electronic register was not the official register and that the official register was the “Green Book”, copies of which the Supreme Court allowed the IEBC to produce and rely on in court.

At a general level, Ms Kilonzo’s situation reflects the difficulties surrounding the manner in which the IEBC has handled its constitutional mandate to manage elections. The Constitution requires that whatever electoral methods the IEBC employs, these should be “simple, accurate, verifiable, secure and accountable.”

Verifiability means that an interested person should be able to independently confirm facts in relation to all aspects of the elections, including the registered voters, as well as the manner in which these voted. Electoral security requires that nobody should be able to forge or misrepresent documents as issued by the IEBC, if they were not.

Contrary to law, and the requirements of transparency, the IEBC has so far failed to provide the results for all the elections held in 2013, and in answer to demands for these results, has asked the public to just trust that everything was fine.

Similarly, the IEBC is now asking that the public should just believe that Ms Kilonzo is qualified as a candidate without providing the means to independently verify her candidature.

Given how the IEBC was allowed to change goalposts regarding the register of voters during the general elections, the body is left with little moral authority to pronounce itself on who is, and who is not, a registered voter, the question that determines the validity of Ms Kilonzo’s candidature.

If the IEBC bowed to Jubilee pressure and disallowed Ms Kilonzo’s candidature, the elections body will find it difficult to deflect accusations that it has changed the parameters one more time, for the benefit of the group in power.

If, on the other hand, the IEBC disallowed her candidature on a finding that she is not a registered voter, the inconclusive state of its register would make this a daring and unsupportable conclusion, and if Ms Kilonzo challenged it, she can rely on the Supreme Court judgment and claim that, legally, there can be more than one register and her name need not be in the basic IEBC register.

Yet, if, without being registered, Ms Kilonzo was allowed to run in the elections, it means that anybody, even a foreigner, can purport to participate in Kenyan elections and there is no means of finding out.

Very early on, the chickens have come home to roost. The unsatisfactory management of the register in the last elections, and the unwillingness of the Supreme Court to call out the IEBC on that, means that there is now no clear legal basis for resolving disputes around the register, such as the one affecting Ms Kilonzo.

Whichever way the IEBC decides on Ms Kilonzo’s case, somebody will complain, and with good reasons to do so.

gkegoro@gmail.com