Monday, March 18, 2013

Did Uhuru Win? If So, What Do We Do?

A Digital Essay by Onyango Oloo

 Completely Revised and Updated Version

The good thing about digital essays is that they are akin to the proverbial river that the Greek philosopher of yore spoke about, you know the fact that you cannot step in the same river twice. In the same vein, you frequently cannot  read the same digital essay twice. Thanks to technology,  a blogger can always excise typos, polish the grammar, add more information, rewrite entire  paragraphs and even remove offending content between one browsing and the next.

This is what has happened with this essay.

Those who read it yesterday will immediately notice that it is NOT the same piece that  was posted online yesterday, even though the link is still the same.

  • I have changed a  couple of things- starting with this beginning. 
  • More crucially, I have added what I hope is  valuable inside information gleaned from a confidential report on the IEBC.  
  • Equally important I have included a very detailed excerpt from the  civil society petition filed by Gladwell Otieno and  Zahid  Rajan at the end and have 
  • given more coverage of  Raila Odinga's own affidavit in support of his petition.
  • There is also a critique of the media driven "peace, concede" clap trap towards the end. And yes, I have added a fascinating editorial cartoon by the inimitable Gaddo, who is a close friend and collaborator of Maddo.

Anyways, read on...

It is becoming increasingly clear that the ululations and jubilation from the frenetic supporters of the Jubilee Coalition crowing triumphant about the alleged Round I "victory" of Uhuru Kenyatta and his running mate may have been a bit premature.

 Two weeks after the March 4 Presidential polls, there are emerging questions and doubts from many quarters in Kenya.

For instance, there was this story which was splashed on the front pages of the Weekly Citizen, a Nairobi based tabloid that is often a controversial conversation piece among Kenya's chattering classes-even as it is slammed hypocritically as one of gems of the country's so called gutter press. What many of us have found out that some of the country's top journalists, investigators, political parties and even members of Kenya's security intelligence use Weekly Citizen as a fail safe conduit if they want to leak something that is too hot for the mainstream press. One always has to sift through the sensationalist salt and pepper that is liberally spiced on the stories to get to the kernel of the truth.

Here is the story I am talking about.

To give you an excerpt:

Panic has gripped the Jubilee Coalition headed by Uhuru Kenyatta as details unravel on how the 2013 Presidential Elections were manipulated to hand him a win by the Independent Electoral and Boundaries Commission – IEBC, that is now the subject of a Supreme Court petition.
The emerging details point to a shocking scheme hatched by circle of advisors and government functionaries within the intelligence and civil service, way before the elections.
Analysts scrutinizing documents ahead of the Supreme Court petition by the Coalition for Reforms and Democracy challenging the results, were stuck by how technology was also used to aid Uhuru “defeat” Raila Odinga of CORD.
“Kenyans can remember well that some curious things happened with regard to the so called provisional results that IEBC kept churning out”, says one of the lawyers handling the CORD petition.
“It was a statistical impossibility. Between March 4th – March 7th, Raila Odinga was consistently stuck at 43/44% while Uhuru stayed at 53%. Musalia was stuck at 2.8% while the margin between Uhuru and Raila remained at 600,000-700,000 votes. This was impossible considering that results were coming in randomly from all over Kenya. Yet these figures remained consistent”.
After a confusing Friday 8th March when IEBC postponed announcement of final constituency results till Saturday, a quick operation was put in place to force acceptance of the results, amidst anxiety by Kenyans that the voting process had been manipulated.
IEBC’s James Oswago reportedly called media houses late in the night for a surprise final announcement of constituency results Friday 12.30am without indicating who had won. Throughout the week IEBC had warned media from declaring anyone the winner. However 30 minutes later KTN and NTV got a “nod” to call the elections. From there on events moved quickly. At 1.30am KTN flew a banner indicating Uhuru Kenyatta was the winner. Several stations in surprise followed suit. Kenyans would wake up on Saturday morning to all TVs proclaiming “President Uhuru”, almost 12 hrs before Isaack Hassan finally announced Uhuru’s win on Saturday afternoon.
The Weekly Citizen in this exclusive report can now report stunning details of a rigging plot that would have passed undetected if all players had stuck to the script and the “tyranny of numbers” theory had not fallen flat on its face on March 4th.
According to CORD insiders and several statistics analysts who have examined the IEBC voter register when it closed on Dec 18th, over 1,500,000 extra votes were “unexplained votes” votes that were for the presidential result alone. Since according to the IEBC, every voter was given 6 ballot papers, IEBC will be hard pressed on how this happened.
If these allegations are proven then, Uhuru’s tally will render his  6,173,433 vote announced by the IEBC to 4,673, 433. Which could mean that Raila Odinga could have won the election if what CORD claims is true. 
The well calculated scheme was based on 3 critical things that had to be done to force in Uhuru. The most important was to force a first round win for Jubilee.
“It was obviously clear to us that any run-off would result in an anti-Kikuyu vote in which only Kalenjins and Kikuyu’s would vote for Uhuru while Raila takes off with the rest of the country’, says Central Kenya Senator Elect over drinks at a popular Nairobi spot on the day the IEBC announced Uhuru as President. “Winning Round One was never an option. It had to happen”
Getting the numbers was an issue that had worried TNA strategists one year before striking an alliance with William Ruto’s URP as the Jubilee Coalition. Even if Ruto’s Kalenjin backyard was convinced to vote for Uhuru, the numbers Kalenjins brought in were still not enough. Though the “Tyranny of Numbers” propaganda was sold as a winning formula, insiders knew the truth held a different reality. The 50% was simply not there. The best Jubilee could manage was force a run-off their researchers said they would lose.
The tyranny of the numbers was the psychological component of the whole game; and the so was “PEACE” campaign enterprise, says a member of the civil society. 
“It is Funny that the tyranny of numbers theory perpetuated by Political Analyst Mutahi Ngunyi done in February 2013 mentions the same figures Uhuru got in the final tally” says popular blogger Robert Alai.

Several contingency plans were made to ensure the plan succeeds. One was to ensure that the Kikuyu and Kalenjin voter turn-out was to hit 95% while hoping that CORD base’s turn-out would remain at the traditional 65% to 70%.
Like many assumptions made by the Jubilee strategy team, their plan on turn-out was based on assumptions that CORD’s base would barely attain their traditional turnout.  
The second critical factor was use of technology to help add up numbers as the infamous tyranny of numbers depended on factors outside Jubilee’s control.
This plan to be used was borrowed from Ghana’s December 2012 Presidential Elections. The election which is now being contested at the Ghanian Supreme Court was won by President John Mahama who was announced to have secured 50.7% of votes, enough to avoid a run-off against NPP candidate Nana Akufo-Addo with 47.7%. Akuf-Addo has filed a petition with evidence that the vote was won by manipulating the electronic system.

In the Ghanian petition, proof has been revealed the company hired by the Ghanaian Election Commission to supply data services – SuperLock Technologies Ltd – also had a contract with the National Democratic Congress to supply the same services to the party that included tallying. In the petition NPP says it had found irregularities such as cases of over voting and instances when people not registered by the new biometric finger-printing system were able to vote.

According to the NPP and the other parties, these numbers announced by the Ghana’s Electoral Commission did not correspond with actual votes recorded in the 275 constituencies. They allege tampering of numbers by the suppliers of IT services in favour of John Mahama. The commission also reported that turnout was at an all time high of 81%.
In a dramatic incident during the elections, NPP stormed the electronic suppliers premises and claimed to have caught the company’s data personnel altering results before transmission to the National Tallying Centre.

Similar to the Ghanaian case, the company that supplied Kenya’s IEBC with the electronic data and call centre services is Ken Call. The company whose connection to IEBC were never made public was charged with supplying call centre services and hosting the data base from where the polling station results were remitted to the IEBC.  Ken Call also has a contract with Uhuru Kenyatta’s The National Alliance party to supply tallying services of results from polling stations!

“Results from Returning officers at polling stations being transmitted electronically were first relayed to Ken Call’s servers for onward transmission to Bomas”, an IEBC official told Weekly Citizen.

“Imagine the same server was being used to tally results for TNA! This is where the electronic tampering of results took place as it was easy to access the same server which was serving both the IEBC and TNA and managed by the same company. When questions started being raised about the contradiction between figures announced at polling stations and the ones on IEBC screens at Bomas, the system mysteriously crashed!”
The official says it is unclear when the company was hired by the IEBC and why the commission ignored the conflict of interest.

The Weekly Citizen has discovered that like the Ghanaian case the plan by to rig the Kenyan Presidential vote was 3 pronged;
  1. First, encourage the purchase of BVR kits by the IEBC. The technology was simply meant to hoodwink the public and crash when plan B was to be effected. Using unorthodox means that included bribing IEBC officials, the more experienced 4G solutions which serves India that has over 500 million voters was disqualified and Code Inc given the job to supply the kits. Code Inc went into liquidation and was renamed Electoral Systems International after the Fijian government exposed the company to be a branch of the Canadian Intelligence Organisation. Part of the system’s technology was supplied by a company linked to a Mr Chirchir, a former Commissioner at the IEBC
  2. Secondly, as Ghana’s NPP claims in their petition, the ruling party used Super Lock Technologies Ltd to hack into the system and pre-determine a mathematical formula that adjusts figures as they come for both candidates while keeping any other candidates at a predetermined formula to ensure they do not harm the intended outcome. (This possibly explains why Uhuru’s margins with Raila never changed even with random results coming from all over the country).  Yet even with this plan, Jubilee knew they would have to top up “few” numbers based as the 50% + 1 was still proving elusive with a week to the election.
  3. The third and final strategy was the real plan. Play with Kenyans’ minds by manipulating results and establishing a lead for Jubilee then crash the system and go manual. This was arranged by declining to have a back-up server which would retain evidence of the manipulation. With only one server, a deliberate crash would be final and would destroy evidence.
According to Maina Kiai, former chairman of the a human rights organization the technology was a red herring.
“This election was meant to be manual from start to finish loopholes included” he writes in his Saturday Nation column. “A manual result is what would allow different results to be announced at the Constituency, County and Bomas. All these electronic gadgets and equipment were meant to pull wool over our eyes”
“Even with this plan, the team knew they would have to top up numbers based as the 50% + 1 still proved elusive with a week to the election” says a TNA Mp Elect.
Then March 4th came.
While the scheme was to “minimally” add votes to the “tyrannical numbers” to enable a Round One win, everything went wrong on March 4th Election day as the electorate in key battle ground areas stunned Jubilee strategists with an anti Uhuru vote.
Luhyas expected to vote for Musalia up to 50% rebelled and went for Raila. The 30% of the Kamba vote expected from Kitui through Charity Ngilu failed to come in. Coast where Jubilee were expecting a 50-50 share with CORD bolted to Raila. CORD and Raila took off with 70% of the Kisii vote. In Kalenjin land, voter turnout fell below 70%. The “tyranny of numbers” was becoming a flop. With predictions by Jubilee statisticians collapsing all over on Election Day, the team after consultations had to quickly switch to Plan B. 
“This plan was aided by the decision by the IEBC to keep open some polling stations well after 5pm, the official closing time” says an ODM Chief Agent who manned a County in Rift Valley. Plan B called for manual voting to improve the numbers. “In Rift Valley CORD agents were reportedly intimidated and some left the polling stations as die hard URP activists some of whom manned the polling centres now took over. “It was hard to control what they were doing after that. Some people were now being given 2-3 presidential ballots to get their target number. You had no idea who was voting and who wasn’t.”
As former Attorney General Amos Wako disclosed at a press conference last week “It appears the IEBC had several registers as they did not even gazette any. We will be asking the Supreme Court to examine which register was being used and which one was valid”.
It is obvious CORD’s petition will put IEBC to task show an increase in voter registration after the registration ended on 18th Dec. In some cases the register grew by 35% in one constituency after reconciliation. On December 18th 2012, @IEBCpage declared there were 14,337,399 Registered Voters. The Final Register indicates there were 13,352,533 Voters
Other than manipulate the register using technology, technology was also becoming an obstacle to get the right numbers and ensure a Round 1 win. The Voter Identification Kit which required fingerprint identification for voters could not be manipulated as “ghost” voters could not get in to vote or double voters. They had to be physically present.
By 2pm, a crisis meeting was convened by Jubilee strategists on how to shore up numbers in Rift Valley. 
Mysteriously the Finger Print Identification kit stopped working. Manual voting was introduced.
The IEBC electronic tallying system which was relaying fast results with a 53% lead for Uhuru four hours after 5pm, suddenly slowed down with just a million votes in. Then the “IEBC” server which in reality belonged to Ken Call crashed. And the results slowed down to a trickle. By 11pm IEBC announced to the press that announcement of provisional results had been halted and pushed to Tuesday.
Most IT experts confirm that the amount of data being remitted for the 33,000 polling stations in terms of text messages could not have crashed the system.
“It is very little data. Safaricom, Airtel and Orange deal with almost 300 million text messages daily. The data from polling stations was not that much”, says an employee of Safaricom on condition of anonymity. “What is puzzling is why on such an important exercise IEBC and Ken Call did not install the standard back-up server which would saved remitted results and revived the process”.
The CORD team believes Isaack Hassan’s explanations were a cover-up and that the technology “use” and “failure” were part of the strategy to rig the elections.  
“The electronic system kept Uhuru and Raila at particular percentages to psychologically make Kenyans believe Uhuru was winning and Raila was losing. However since the figures at Bomas were not matching forms 34, 35, 36, and the Jubilee “tyranny of numbers” formula had failed, the electronic tallying system had to go.
Maina Kiai is more brutal in his assessment calling IEBC’s excuses “hogwash”. “First it was that the server crashed. Then, than one side of the disk was full and unable to accept results. Then that presiding officers were slow in transmitting. The maximum capacity required for data from 33,000 polling stations is just 2GB, less than what a mobile phone can take!”
With the plan in progress for manual voting, by Wednesday Rift Valley Turn-Out was being reported at 90% while Central had risen to 95%. Based on the Kriegler report this numbers were obviously inflated. However more was required as Uhuru had dropped below 50%. So delays had to be created for Returning Officers to re-adjust figures.
The diversionary tactic kept Kenyans patient as Issack Hassan kept talking of delays caused by “verification”, “technological challenges” and introduced a phrase “complex elections” that would be repeatedly used throughout the Bomas process.
With the announcement that manual voting would be used, the vote tallying took a different outlook as the initial 48 hrs in which all provisional results were to be announced dragged into days and tallying began afresh. Questions about discrepancies by CORD officials resulted in IEBC throwing them out. A compliant media was threatened into silence and no criticism of the IEBC was to be aired.
The Bomas tallying centre was placed under heavy security as the once accessible Chairman of the IEBC now avoided all media questions regarding the process.
“This is the most opaque electoral commission and ranks lower than even the late Kivuitu Commission” said one of CORD’s lawyers James Orengo.
In the deliberate confusion that followed strange results started flowing off the IBC press briefings. Among the cases are;
Wajir North had a 92% Voter Turn-Out for spot whose history indicates 50-60%. In Wajir West, if the Final Register hadn’t been adjusted, 99.45% of the Registered Voters would have voted. In Nyaki East in North Imenti with 12000 registered voters 15300 are reported to have voted!
In Kajiado South, the people who voted (42,276) is higher than the people registered in Dec (41,040).Register adjusted to 46,218 to conform. In Sigor, the people who voted (19,704) is higher than the people registered in Dec (19,337).Register adjusted to 21,341 to conform.
“How does Turkana Central with 25,970 votes as at 18th Dec end up with 34,486 voters after reconciliation?! Where did 8,516 voters come from?” asks Dr Makodingo, a political analyst on his twitter page.
Worse still Worse still, IEBC’s figures refuse to add up inspite of efforts to “correct errors”. Valid Votes (12,222,980) plus Rejected Votes (108,975) add up to 12,331,955  and not their tally of 12,338,667!!
 “It is strange that 1,500,000 persons only cast a vote for a president and across Kenya this number is reflected in joint votes cast for Senators, Governors, Mps, Women Reps or County Reps. It is an obvious case of manual ballot box stuffing and double voting for Uhuru” says Statistics analyst Dr Makodingo
Presently CORD may only have to prove that the 8,000 votes votes Uhuru received to add to his declared 50% is fraudulent. If that is done the Supreme Court can order a fresh poll within 60 days.

By now, most observers of Kenyan politics are aware that Raila Odinga and the Coalition for Reforms and Democracy (CORD) have moved to the Supreme Court to seek redress. Instead of rehashing the grounds that Raila Odinga is challenging the declaration of Uhuru Kenyatta as the President Elect, it is easy to direct you to this link where you can read the petition in full.

CORD supporters have set up the Democracy on Trial  portal where you will find a lot of information.

 Below is an extract from  Raila Odinga's 34-page affidavit:

a)           The EVID and BVR system adopted by the First Respondent was so poorly selected, designed and implemented that it was destined to fail at inception, to the knowledge of the First and Second Respondent;

b)           I annex hereto a copy of an affidavit of Oduor Ongwen in evidence in a bundle of documents marked RO 2 in Volume 2.

It is evident  from the affidavit of Mr. Oduor Ongwen in evidence in a bundle of documents RO 2 that sometime on or about 1st June 2012, and as the 4th March, 2013 elections neared, the First Respondent  issued a tender (IEBC/14/2011-2012) for the procurement of a Biometric Voter Registration  (BVR) kit. This was published in both the Daily Nation and the East African Standard newspapers and widely publicized.

c)            The objects of the tender for BVR kits were detailed in a technical evaluation report dated 29th September 2012 or thereabouts and expressly stated that the same was to provide clear identification through fingerprint authentication technology, reduce human errors, log all voter activities and provide an efficient and effective means of reconciling the numbers of voters in comparison with the number of votes cast and to provide the highest voting safety levels and prevent election fraud such as double and multiple voting.

d)           The said tender was awarded to Face Technologies Pty Ltd (Face Technologies) who were engaged for the supply, delivery, installation, training, testing and commissioning of the devices.

e)           During the procurement process appeals by the unsuccessful bidders to the Public Procurement Administrative Review Board (Review Board) it was found as a fact and held that the devices as proposed by Face Technologies had failed 3 of the 6 component requirements, were inconsistent models, would only be available on election day (and not before) and had no "specifications that could be pinned down".

f)             In a Review on 20th November 2012 the Review Board found the First Respondent to be in breach of public procurement regulations as regards the said tender for "Allowing the successful bidder to participate in the second demonstration of Proof of Concept having failed in the first demonstration, and further allowing it to introduce a device that was different from the one it had submitted with its tender".

g)           Notwithstanding the aforesaid fundamental flaws, the Review Board at the instance and request of the First Respondent on or about 11th December 2012 approved the BVR kits procurement from Face Technologies, stating that it was in the public interest, an aspect that was later adopted by the High Court, to continue with such procurement as had been urged by the First Respondent given that the elections were nearing and should not be jeopardized, but required that amendments for compatibility be made where possible.

h)           The EVID system failed and collapsed and by the First and second respondents own admission, on a catastrophic scale, on the polling day, so fundamentally changed the system of polling and the number of votes cast, owing to inordinate and inexplicable delays at the polling stations affected thereby reverting Kenya to the discredited manual system, with all the attendant risks and opportunities for abuse and manipulation which in fact took place;

1)       In relation to the general election held on 4th March, 2013 and the process leading thereto, including the purported declaration by the Second Respondent herein, on 9th March, 2013 of the Third and Fourth Respondent as President-elect and Deputy President-elect respectively, the First and Second Respondents, and each of them, were bound by and were obliged to uphold and observe the national values and principles of governance enshrined in the said Article 10 of the Constitution when:

(a)          Applying the Constitution, as they were required to do by Articles 86 and 88 of the Constitution as read with Section 4 of the Independent Electoral and Boundaries Commissions Act, 2011 and the Regulations thereunder;

(b)          Applying the said Independent Electoral and Boundaries Commissions Act, 2011 and the Regulations thereunder and the Elections Act, 2011;

(c)          Making and implementing public policy decisions as they were and did in all matters relating to the said election particularly the following national values and principles of governance:

                                               i.        -the rule of law;

                                             ii.        -democracy;

                                            iii.        participation of the people;

                                            iv.        -inclusiveness;

                                              v.        -equality;

                                            vi.        -human rights;

                                           vii.        -non-discrimination;

                                         viii.        -good governance;

                                            ix.        -integrity;

                                              x.        -transparency; and

                                            xi.        –accountability.

2)       The First and Second Respondents herein contravened or failed to observe each and all of the aforesaid national values and principles which were binding upon them as regards the said election and the whole electoral process leading up to the declaration made on 9th March, 2013 under challenge herein thereby rendering the same null, void and of no legal effect.

3)       The First and Second Respondents’ purported official tally of registered voters inexplicably and mysteriously grew overnight by a large proportion on the eve of the election, notwithstanding that registration had closed some two weeks prior and was by law not permitted to be opened or change.

4)       The results as declared and recorded by the First and Second Respondents contained wide spread instances of over-voting in flagrant breach of the Fundamental Constitutional principle of  universal adult suffrage, to wit, one man one vote;

5)       Although a common register was to be and indeed was compiled for all the six levels of elections in the general elections of 4th March, 2013, it turned out, from the results declared by the First and Second Respondents that the total number of votes cast in respect of the Presidential Elections in some instances exceeded that of the registered voters and those cast for the gubernatorial and parliamentary elections  after taking due account of any spoilt or rejected or disputed votes in the said election to the detriment of Your Petitioner.

6)       These grave errors constituted fundamental contraventions of the letter, spirit and objects of the Constitution of Kenya and the statutory framework in place to operationalize the same that they failed to ensure or secure a free or fair election and no Government could lawfully be formed by or from  the purported declaration, on 9th March, 2013, of the Third and Fourth Respondent as President-elect and Deputy President-elect respectively, by the First and Second Respondents to the dishonor of the Kenyan people.

7)       I verily believe that, the First and Second Respondents were and are obliged to act in the public trust and interest, in a manner consistent with the Constitution, with dignity and whilst promoting the integrity of their office as required by Article 73 thereof. In particular, they were obliged to ensure, as regards the 4th March, 2013 elections that: -

a)            the electoral process leading up to the declaration made on 9th March, 2013 was and remained consistent with the purposes and objects of the Constitution;

b)            it demonstrated respect for the will of the people of Kenya;

c)             brought honour to the nation and dignity to the office in the conduct of elections;

d)            promoted public confidence in the integrity of the

office and the system and results of the said elections;

e)            the guiding principles as regards the conduct of the said election were competence, objectivity and impartiality in decision making, and in ensuring that their decisions were not influenced by favouritism, other improper motives or corrupt practices, selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties; and the declaration of any personal interest that may conflict with public duties, accountability to the public for decisions and actions; and discipline and commitment in service to the people.

8)       I verily believe that by virtue of Article 38(2) of the Constitution, the Petitioner herein, and every Kenyan citizen, has a right to free and fair elections based on universal suffrage and the free expression of the will of the electors which right the First and Second Defendants herein were bound and required to protect and secure for them in the general election of 4th March, 2013 but which they so grossly, recklessly and negligently violated and abrogated as detailed herein as to completely take away the essence thereof.

9)       In particular the First and Second Respondents herein mis conducted themselves and materially undermined, contravened or abrogated the mandatory requirement enshrined in Article 81 of the Constitution that Kenya’s electoral system, including the process leading up to, and the, presidential election of 4th March, 2013, which mandated them to comply with the following: -

(a)           freedom of citizens to exercise their political rights under Article 38;

(b)          universal suffrage based on the aspiration for fair

representation and equality of vote; and

(c)           free and fair elections, which are—

(i)           by secret ballot;

(ii)          free from violence, intimidation, improper influence or corruption;

(iii)        conducted by an independent body;

(iv)         transparent; and

(v)          administered in an impartial, neutral, efficient, accurate and accountable manner.

10)    I  am aware that Article 82(1)(d) required Parliament to enact legislation, which it did, for—

(a)    the conduct of elections and referendum and the regulation and efficient supervision of elections and referendums, including the nomination of candidates for elections;

(b)   the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote;

11)    I am aware that the context of such legislation was to ensure that voting at every election is—

(a) simple;

(b) transparent; and

(c) takes into account the special needs of—

(i) persons with disabilities; and

(ii) other persons or groups with special needs.

12)    I am aware Article 86 of the Constitution requires the First and Second Respondents at every election, including the general election held on 4th March, 2013, to ensure that:

(a)       whatever voting method is used, the system is simple,

accurate, verifiable, secure, accountable and transparent;

(b)       the votes cast are counted, tabulated and the results

announced promptly by the presiding officer at each polling station;

(c)             the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and

(d)            appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

13)    I believe that First and Second  Respondents in breach of the Constitution, failed to establish systems which are accurate, secure, verifiable, accountable and/or transparent and indeed declared results which in many instances had no relation to votes cast at the polling station, developed methods which were opaque and intended to manipulate the results in the course of which the Petitioners’ representatives were altogether excluded from the process.

14)    I am aware of the fact that by virtue of Articles 2 and 3 as read together with Articles 259 and 260 of the Constitution, the First and Second Respondents herein are and were bound by and obliged to respect, uphold and defend the Constitution of the Republic of Kenya as regards the entire electoral process leading up to and the general election of 4th March, 2013. Instead they abrogated their obligations and duties under the Constitution and decided to adopt an evasive and flagrant disregard of its provisions.

15)    I verily believe that the First and Second Respondents herein could not claim or exercise State authority as regards the said elections except as authorised under the Constitution.

16)    I have in my petition sought declarations that any acts or omissions of the First and Second Respondents herein in contravention of the Constitution as regards the said election be declared void and invalid.

17)    Pursuant to Article 82 of the Constitution, Parliament enacted the Elections Act, 2011, which operationalized and was among the statutes intended to operationalize the electoral system.

a.    The Act in terms of Section 58(f) does not permit the taking out of a polling station any ballot paper or being found in possession of any ballot paper outside a polling station or anyone who is not an election official and not being authorized to do so, to remove election material from a polling station before, during or after an election.

b.   Accordingly, the Petitioner contends that for purposes of the Presidential election held on 4th March, 2013, the total number of votes cast, ought to equal, after tallying, those cast in the other five (5) elections after taking due account for any spoilt, rejected or returned ballot papers in the said general election and the huge discrepancies that have appeared or which occurred in relation thereto are proof of electoral malpractice, including, but not limited to ballot stuffing and multiple voting.

c.    The Second Respondent herein, and members of the First Respondent, staff or other persons having any duties to perform in the presidential election held on 4th March, 2013 were prohibited by Section 59(1)(j)(k), (l) and (m) from doing any of the following which are criminal offences under the Act:-

                                     i.        without reasonable cause doing or omitting to do anything in breach of his official duty;

                                   ii.        colluding with any political party or candidate for purposes of giving an undue advantage to the political party or candidate;

                                  iii.        willfully contravening the law to give undue advantage to a candidate or a political party on partisan, ethnic, religious, gender or any other unlawful considerations; or

                                  iv.        failing  to prevent or report to the First Respondent and any other relevant authority, the commission of an electoral malpractice or offence committed under the Act.

18)    I am aware that the Registration of voters is provided for under Section 5 of the Elections Act, 2011 and the said provision requires that the registration of voters and revision of the Register of Voters shall be carried out at all times except inter alia, between the date of commencement of the sixty (60) period immediately before the election and the date such election.

19)    I am aware that for the purposes of the 4th March elections the registration of voters was carried for the period between 19th November, 2012 to 18th December, 2012. At the end of which exercise the First and Second Respondents announced that 14,337,399 persons had registered as voters.

20)    On or about February, 2013, the First and Second Respondents announced that they had discovered approximately 20,000 persons who had double registered and required the persons who had registered to examine the register. By Gazette Notice dated 18th February, 2013, the First Respondent proclaimed the Register for purposes of the 4th March, 2013 elections and finale and containing 14,267,572 as was displayed on its website.

21)    In breach of the said mandatory legal requirement, the First Respondent has falsely, unlawfully and illegally in flagrant disregard of the law and its declaration of the result of the presidential election held on the 4th March, 2013 reflected the total number of registered voters as 14,352,533 well above the total number of the initial number of registered voters as the date of closing of 18th December, 2013.

22)    I annex hereto a copy of an affidavit of Lilian R. Omondi in evidence in a bundle of documents “RO 4”.

23)    The above damning conduct of First Respondent is corroborated by the affidavit of Janet Ongera in evidence a bundle of documents “RO 3”.

a)    Upon commencing preparations for the 4th March, 2013 presidential elections, the Second Respondent on or about 16th  November 2012 on behalf of the First Respondent gave notice vide Gazette Notice no 16727 that the First Respondent would begin compilation of a new register of voters in respect of the Counties, Constituencies and Wards.

b)   On or about 22nd December 2013, the First Respondent uploaded onto its website the provisional register of voters as at 18 December 2012 which stood at a total of 14,337.339.

c)    During February 2013 the First Respondent informed the National Liaison committee of the Petitioner’s Coalition that it intended to “clean up” the provisional voters register. On or about 13 February 2013 the Second Respondent in both print and electronic media on the progress towards “cleaning up” of the voters register issued a media briefing on the same process.

d)   On or about 20th  February 2013 the First Respondent published a notice informing the public that the compilation of the Principal Register of Voters was complete and had closed. The First and Second Respondents gave the total number of registered voters as at that date to be 14, 267,572.

e)    On or about 24th February 2013, the First Respondent published another version of the Principal Register of Voters which had changed to 14,352 545.

f)     Sometime after the commencement of polling at the presidential elections held on 4th March, 2013, or immediately thereafter, the First and Second Respondents removed or failed to prevent the removal, from its website of Principal Register of Voters which had hithereto been downloadable therefrom.

g)    The First Respondent thereafter issued a new Principal Register of Voters on its website or a document to that effect which again was subsequently removed. The figure indicated for the total number of registered voters in the said document was materially different from the “final” figure as submitted on 24 February 2013.

h)   On or about 15th March 2013, the First and Second Respondents caused to be published in the Daily Nation and other dailies with national circulation within the Republic what purported to be a Summary of 2013 Presidential Results Declared on 9th March, 2013 following the Presidential Election held on 4th March, 2013 in which the final of registered voters was given as 14,352, 533.

i)     The said number given for registered voters in the said election differed materially from that which was contained in the Principal Register of Voters as at the statutory closing period of the said Register for purposes of the 4th March, 2013 general election.

24)            I verily believe that the altering and tinkering with the number of registered voters was intended to permit the First and Second Respondent to manipulate the presidential election held on 4th March, 2013.

25)            I am aware that by virtue of Regulation 59(1) of the Elections (General) Regulations 2012;

a.    Regulates every election, including that of the presidential election held on 4th March, 2013 and requires such election to be by secret ballot and be held in accordance with the provisions of the Constitution, the Elections Act and the said Regulations.

b.   In particular, a voter casts his or her vote by use of a ballot paper and no person is permitted to cast more than one vote at any particular election or allowed to vote in a polling station other than that in respect of which that person is registered to vote.

c.    Accordingly, the numerous instances of huge discrepancies in the total numbers of votes declared by the First and Second Respondent in the presidential election held on 4th March, 2013 is inexplicable upon any reasonable hypothesis but the existence of actual ballot stuffing, multiple voting or gerrymandering or inflating of the numbers of votes in the tallying thereof by the First and Second Respondents herein or their officers or their condoning of or connivance in the same to the advantage of the Third and Fourth Respondents thereby rendering their alleged win invalid, illegal, null and void.

d.   By dint of Regulation 79, the First Respondent’s Presiding Officer was required to ensure that the candidates in the presidential elections held on 4th March, 2013 or their agents signs Form 34 set out in the Schedule and:

                                         i.    immediately announce the results of the voting at that polling station before communicating the results to the returning officer;

                                       ii.    request each of the candidates or agent then present to append his or her signature;

                                      iii.    provide each political party, candidate, or their agent with a copy of the declaration of the results; and

                                      iv.    affix a copy of the declaration of the results at the public entrance to the polling station or at any other place convenient and accessible to the public at the polling station;

                                        v.    Where any candidate or agent refuses or otherwise fails to sign the declaration form, the candidate or agents shall be required to record the reasons for the refusal or failure to sign;

                                      vi.    Where a candidate or an agent refuses or fails to record the reasons for refusal or failure to sign the declaration form, the presiding officer shall record the fact of their refusal or failure to sign the declaration form;

                                     vii.    Where any candidate or agent of a candidate is absent, the presiding officer shall record the fact of their absence.

                                   viii.    The refusal or failure of a candidate or an agent to sign a declaration form or to record the reasons for their refusal to sign as required would not by itself invalidate the results announced;

                                      ix.    The absence of a candidate or an agent at the signing of a declaration form or the announcement of results would not by itself invalidate the results announced;

26)    After complying with the aforesaid provisions the Presiding Officer was required, as soon as practicable, to deliver the ballot boxes, and the tamper proof envelopes to the Returning Officer who was to take charge thereof an exercise which the First and Second Respondents herein failed to ensure in several material instances.

27)    In breach of Regulation 82 as regards the electronic transmission of results, the First Respondent’s Presiding Officers in several instances failed, as they were required, to submit to the returning officer the results in electronic form, in the manner the First Respondent had directed before 4th March, 2013, before ferrying the actual results of the election to the Returning Officer at the tallying venue which was the Bomas of Kenya in Nairobi.

28)    In further breach of Regulation 83 thereof, there were several instances where the following did not take place:

(a)      Immediately after the results of the poll from all polling stations in a constituency had been received by the returning officer, the Returning Officer did not, in the presence of candidates or agents and observers;

(b)      Tallying of the results from the polling stations in respect of each candidate.

(c)       publicly announce to persons present the total number of valid votes cast for each candidate in respect of each election;

(d)      complete Form 34 and 35 set out in the Schedule in which the Returning Officer was to declare, as the case may be, the—

(i) name of the respective electoral area;

(ii) total number of registered voters;

(iii) votes cast for each candidate or referendum side in each polling station;

(iv) number of rejected votes for each candidate in each polling station;

(v) aggregate number of votes cast in the respective electoral area; and

(vi) aggregate number of rejected votes; and

(d) sign and date the form and—

(i) give to any candidate, or agent present a copy of the form; and

(ii) deliver to the First Respondent the original of Form 34 and 35 together with Form 36 and Form 37 as the case may be.

29)    The results of the presidential election in a constituency shown in Form 34 would be subject to confirmation by the First Respondent after a tally of all the votes cast in the election.

30)    In breach of Regulation 85 thereof which provides that accredited persons to be allowed to be present in tallying centres, to wit ,:

 (a) the presiding officers and other election officials on duty;

(b) a candidate;

(c) a person nominated as a deputy to the candidate, where applicable;

(d) a member of the Commission;

(e) authorized agents;

(f) a police officer on duty;

(g) duly accredited election observers.

31)    I wish to state my parties duly authorized agents were refused entry into several tallying centres by the First and Second Respondents herein or their servants or agents or employees despite repeated requests to be so allowed to my detriment.

I will to this end rely on the affidavits of Janet Ongera “RO 3” and the affidavit of Professor Larry Gumbe “RO 5”

32)    I am aware that Section 4 of the IEBC Act, the First and Second Respondents herein are charged with the responsibility for conducting general elections, including the presidential election held on 4th March, 2013 and are required to do so in accordance with Article 88(4) of the Constitution and to particularly to facilitate the observation, monitoring and evaluation of elections.

33)    Further for purposes of the said presidential election, the First and Second Respondents herein were bound and required by Section 25 of the IEBC Act to observe, inter alia, the following principles, in accordance with the Constitution of Kenya:

(a)    freedom of citizens to exercise their political rights under Article 38 of the Constitution;

(b)    universal and equal suffrage based on the aspiration for fair representation and equality of votes;

(e)    free and fair elections, which are—

(i)   by secret ballot;

(ii)    free from violence, intimidation, improper influence or corruption;

(iii)    conducted independently;

(iv)    transparent; and

(v)    administered in an impartial, neutral, efficient, accurate and accountable manner;

(g)    ethical conduct; and

(h)     fairness.

34)    In relation to the voting process the First Respondent by  its own admission in the media delayed the commencement of voting by inordinately long periods of time during the 4th March, 2013 elections in several polling stations owing mainly to its officers’ negligence, errors and omissions.

35)    I verily believe that the First Respondent failed to secure or ensure the provision of sufficient security in several polling stations especially in the Petitioner’s strongholds. In Kilifi County for example, several polling stations opened late and closed very early thereby disenfranchising several of the Petitioner’s supporters.

36)    I verily believe the reasons given by the First Respondent for the aforesaid delays were that the EVID kits were not functioning, officials and clerks had forgotten passwords, batteries were flat and kits were unable to charge among other impermissible reasons all of which could have been prevented by a reasonably prudent and impartial electoral overseer.

37)    In other instances, the First Respondent wholly failed to provide BVR kits to some polling stations resorted to the dreaded manual system of identification of voters notwithstanding the overwhelming desire of the people of Kenya to avoid the same, following the tragic events of 2007/2008 following the elections of 2007 which led to the expenditure of the large amount of taxpayers’ money that was used to procure the BVR kits as herein above detailed.

38)    The First and Second Respondents failed to ensure that not more than one presidential ballot paper was provided or issued to each voter in several polling stations or permitted ballot box stuffing therein as evidenced by the huge discrepancies between the total numbers of votes declared by the Second Respondent herein and those of registered votes in such areas as per the current and valid Principal Register of Voters for purposes of the subject election.

39)    In the final tally, the total number of votes cast in the Presidential Elections differed materially from those declared by the First and Second Respondents for purposes of the Gubernatorial and Parliamentary elections which took place on the same date clearly attesting to my belief that massive electoral fraud and malpractice occurred or permitted to occur by the First and Second Respondents in contravention of the requirements of the Constitution and the legislative framework in place as regards the 4th March, 2013 presidential election.

40)    Despite my party agents regularly updating and complaining to the First and Second Respondents about the incidences of electoral frauds, malpractices and irregularities that it discovered on the said date, the First and Second Respondents neglected, refused and/or failed to act thereon or to stop the occurrence of the same.

41)    Later, on the election day of 4th March, 2013, the First Respondent alleged that its server had collapsed.

42)    In the course of the polling day, it came to the notice of some members of the public, that the officers of a company by the name Kencall EPZ Limited, a call centre, was receiving the results of the general elections and specifically the Presidential ones.

43)    A curious and very concerning feature of the First Respondent's conduct was that it allowed Kencall to co-host both its server and that of the TNA, which of course may compromise the integrity of the electoral process but at very least gives the very real impression that the TNA had access to the sort of information which is at the very least initially confidential to the First Respondent.

44)    This clandestine arrangement of co-hosting databases is not permissible by law and indeed was not disclosed to the public or to the Petitioner and his political party or the CORD Coalition.

45)    I verily believe that this clandestine arrangement of co-hosting databases compromised the independence and the integrity of the First Respondent and that of its databases.

46)    I verily believe that this clandestine arrangement provided an opportunity for tampering with the results of the presidential elections.

47)    Regulation 82 of the Elections (General) Regulations, 2012 required the Presiding Officer, in the 4th March, 2013, before ferrying the actual results of the election to the Second Respondent at the tallying centre, to submit to him the said results in electronic form, in the manner that had been directed by the First Respondent before the said election and as detailed in the Presiding Officer’s user manual and diary.

48)    Such results were to be provisional and would provide the requisite checks and balances required to prevent electoral fraud and the practice adopted in the 2007 of election of delaying transmission of results and then altering, in the interim, the total numbers of votes cast in favour of a given candidate.

49)    The First Respondent as required by paragraph 82 of the Election Regulations, established an electronic results transmission system which was intended to help in electronically transmitting election results from the Polling Centers directly to the National Tallying Centre at the Bomas of Kenya.

50)    The First Respondent as means of assuring the public of the efficacy of the electronic transmission system issued public invitations to preview the voting procedure and results transmission simulation on or about Sunday 24th February 2013 in different selected polling stations.

51)    Regulation 82 of the Elections (General) Regulations, 2012 required the Presiding Officer in the 4th March, 2013, before ferrying the actual results of the election to the Second Respondent at the tallying centre, to submit to him the said results in electronic form, in the manner that had been directed by the First Respondent before the said election. Such results were to be provisional and would provide the requisite checks and balances required to prevent electoral fraud and the practice adopted in the 2007 election of delaying transmission of results and then altering, in the interim, the total numbers of votes cast in favour of a given candidate.

52)    An internal IEBC Memorandum from the Director of ICT to the DCS Support Services sets out clear concerns about the BVI devices proffered by Face Technologies.

53)    Most notably the Memorandum expresses that the First Respondent will not be left with sufficient time to carry out the necessary configurations with the BVI technology, and coupled with the lack of local technical support would pose risky.

54)    The Director of ICT further demonstrates that Face Technologies had since confirmed that they would not provide 3G modules for data transmission and would thus require the IEBC to source a third different technology to run the electronic voting system.

55)    Ultimately the Director of ICT's concerns over the clash of using three such different technologies together, he recommended clearly that BVI technology not be pursued and to simply work on improving the BVI kits.

56)    Safaricom (which was the telecommunications company hired to handle the transmission of electoral vote results from the polling stations to the tallying centres on a constituency, county and national level) informed the Second Respondent on 21 February 2013 that the system could possibly fail unless certain actions were taken.

57)    Such actions were to alleviate any coverage gap due to the location of the polling stations, test website security, and to carry out a series of technical tests including stress loading and tests on devices. Critically Safaricom also expressly state that the site "has not been adequately prepared nor equipped" in case of disaster recovery.

58)    None of the actions identified by Safaricom were rectified by First Respondent. Accordingly it could not have come as a surprise to First Respondent that the various system failures identified internally and by Safaricom collapsed. The BVR/BVI system catastrophically failed after approximately 2 hours on polling day.

59)    Whether by design negligence or mere incompetence the failure of the BVR/BVI transmission prevented millions of voters of the ability to have their votes counted accurately.

60)    When the First Respondent resorted to manual tallying, the results of which as aforesaid were being released without the participation of the Petitioner or his agents, the number of spoilt votes dropped drastically. The explanation of the Second Respondent was that the earlier numbers of rejected votes had been the result of a bug which applied to all rejected figures by a factor of eight. The Petitioner contents that should that have been the case the total number of rejected votes should have reflected even numbers which it did not.

61)    The effect of the failures, however, has been the inability of the First Respondent and Second Respondents to comply with the requirements of the law.

62)    Presidential party agents were excluded from the verification of presidential election forms as transmitted to the national tallying center by constituency Returning Officers

63)    I am aware that within hours of closure of the polling on the election day of 4th March, 2013, the First Respondent started broadcasting provisional results of the Presidential elections, indeed well before some polling stations which had started late closed.

64)    The said results indicated the votes garnered by each candidate and the number of rejected votes and the number of spoilt ballots.

65)    I am aware that on the early morning of 5th March 2013, officials of the First Respondent informed the public through a television broadcast that the electronic results transmission system had failed and they had taken various measures to correct the failure.

66)    At some point, the First Respondent reported via a press briefing aired live on national television, that a ‘bug’ had been discovered in the electronic transmission and tallying system which was causing the numbers of votes reported as spoilt in the election to increase by multiples of 8 at each entry.

67)    No details were given of the nature or source of the ‘bug’ and how or whether it was removed and indeed whether there existed other bugs in the entire system which would have affected the integrity of the other results relayed via the system.

68)    The First Respondent subsequently reported that the failure of the electronic system had persisted forcing the First Respondent to eventually abandon the electronic tallying on 6th March 2013.

69)    I have been informed by one Professor Larry Gumbe and One Janet Ongera that upon the alleged system failure, the First Respondent adopted a manual tallying and transmission system in relation to the voting that had largely also been manually conducted.

70)    The First and Second Respondents resorted to manual tallying which was a discredit and abused system which resulted in the violence in 2007 arising out of its lack of transparency, accountability and been subject to manipulation by the First Respondent's officers. Hence the necessity to introduce the electronic registration and transmission of results.

71)    That among the glaring anomalies which were observed in the process of manual tallying from which the First Respondent excluded the Petitioner's agents were that (a) the result were declared on the basis of unsigned Form 36, (b) multiplicity of Form 36, and variants of entries in some constituencies (c) alterations on files and (d) brazen disregard by the First and Second Respondent of the entries on the files of constituencies which were eventually reflected in the final tally of Presidential election results and which were announced without signed verification Form 34s. In many polling stations the valid votes cast exceeded the number of registered voters, including Tiaty, Laisamis, Igembe Central, Buri, Chuka, Iburi Igamba Ngombe, Lari, Kapenguria, Saboti, Turbo, Marakwet West, Kajiado West, Bomet East, Mt Elgon, Langata and Aldai.

72)    In specific instances, the results in Form 36 disclosed by the First Respondent were materially different from the results that were posted in the final tally of the presidential results published by the First Respondent. This included in Webuye East, Webuye West and Igembe Constituencies.

73)    There were several instances where registered voter numbers in polling stations were inflated in Form 34 contrary to what was contained in Form 36. These included Kaproi Nursery School, Metipso Primary School, Maina Primary School, asaibul Primary School, Sewerwa Nursery School, Liter Secondary School, Chesongoch Catholic Church, Mungiwa Primary School, Chawich Primary School and Lemeuywo Primary School. In most of those circumstances, more votes were cast than the total number of registered voters.

74)    In quite a number of circumstances there were more than two Form 36 reflecting different returns. These included Kikuyu Constituency, Juja Constituency, Chuka Constituency, Thika Constituency.

75)    In yet other there were alterations in Form 36 without acknowledgment including Kiambaa and Limuru Constituencies.

76)    A further analysis of the forms revealed that in certain constituencies there were more valid votes reflected in Forms 36 than in Form 34 including in Chesumei, Emngwen and Ainamoi.

77)    In yet other stations, there were different entries in two Forms 36 submitted in respect of the same constituency for example in Mathira Constituency.

78)    In yet another, the final published results were materially different from the results reflected in the County tallying for example in Nakuru not to mention the material variation between the verbal declaration made by the various Commissioners of the First Respondent at the national tallying centre allegedly after verification of results and the fiinal figures which are set out by the First Respondent including those of South Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Boment East and Sigor.

79)    The above are but a few samples of the many anomalies which obtained as a result of the purported manual tallying.

80)    I verily believe that the failure of the First Respondent to use the electronic transmission of results compounded the credibility of the result transmission process having regard to the earlier reported failure of the electronic identification and verification system at the various polling stations in the said election.

81)    The First and Second Respondents have failed to give reasons and or explain the cause and nature of the alleged serious systematic and systemic failures as regards the election held on 4th March, 2013.

82)    The effect of the failures, however, has been the inability of the First Respondents to comply with the requirements of the law.

83)    I have been informed by one Professor Larry Gumbe and one Janet Ongera that Presidential party agents were excluded from the verification of Presidential election forms as transmitted to the national tallying center by constituency Returning Officers after they discovered several anomalies in the exercise.

84)    I verily believe that the manual collation of results is not, and cannot be, a substitute for the intended electronic transmission of results system and the mischief it was intended overcome.

85)    The Presiding Officers in the 4th March, 2013 Presidential election were required to complete Form 34, which contains the results from each individual polling station and which was and is a primary document for purposes of the said Presidential election.

86)    The Second Respondent was thereafter required to complete Form 36, which is derived from Form 34 and which therefore could not have been and was not a primary document for purposes of the said Presidential election.

87)        The First and Second Respondents totally disregarded its Constitutional and legal responsibilities and duties and the Election (General) Regulations and embarked on the novel practice by which they regarded the Form 36 as a primary document for purposes of tallying the results of the election without requiring the production of Form 34 or affording interested parties and the Petitioner’s agents the chance to scrutinize the basis on which the said Forms 36 had been made.

88)        I verily believe that in the absence of the electronic transmission system, the First Respondent did not have a transparent and accurate means of verifying results and transmitting them to the National Tallying Center.

89)        I verily believe that as a result of the adoption of the manual system of results verification and transmission, the First and Second Respondent announced Presidential results showing a higher number of ballots than the total number of registered voters in certain constituencies. I annex hereto a countywide sample of the anomalies reported as result of the manual system

a)    I annex hereto in evidence and marked “RO 5” an affidavit of Prof. Larry Gumbe the National Chief Agent for ODM complaining of the happenings at Bomas of Kenya particularly the transmission and tallying of results.

b)    I annex hereto in evidence and marked “RO 6 an affidavit of Johnson Nduya Muthama, Senator-Elect for Machakos County who complains of him and other CORD agents being ejected from the Tallying Centre on 6th March, 2013 before 5.00 pm. The IEBC continued the tallying and announcement of results without verification of the same by agents.

c)    I annex hereto in evidence and marked “RO 7” the affidavit of John Simiyu Inyimili from Cherangany constituency complaining of difference in results announced at the Constituency Tallying Centre from those announced at the National Tallying Centre at Bomas of Kenya- Uhuru’s Kenyatta’s votes increased by 422 votes  (See Para 4).

d)    I annex hereto in evidence and marked “RO 8” an affidavit of  Edward Aboki Begi from Bomachoge Chache constituency complains of the difference in results announced at the Constituency Tallying Centre from those announced at the National Tallying Centre at Bomas of Kenya-Uhuru Kenyatta’s votes increased by 3,800 votes (See Para 6).

e)    I annex hereto in evidence and marked“RO 9” an affidavit of  Patrick Meeme Lungé from Igembe North constituency complains of the alteration of the results announced at the Constituency Tallying Centre from those announced at the National Tallying Centre at Bomas of Kenya-Uhuru Kenyatta’s votes increased by 3,153 votes (See Para 3).

f)     I annex hereto in evidence and marked “RO 10” an affidavit of  Kennedy Otieno Okal from Endebess constituency complains that the Returning officer refused to give him a copy of Forms 34, 35 and 36 and /or sign the same. he also complains that the results announced at the Constituency Tallying Centre different from those announced at the National Tallying Centre at Bomas of Kenya-Raila Odinga’s votes less by 896 votes (See Para 13).

g)    I annex hereto in evidence and marked “RO 11” an affidavit of  Jackson Ole Nkamasiai from Narok East complains of being denied Form 36 and the change of results at the county Tallying Hall.

h)   I annex hereto in evidence and marked “RO 12” an affidavit of  David Njogu Mwai from Ol Jor Orok Constituency complains of stoppage of electronic verification of voters using the EVID by the Presiding officers who then resorted to manual voting. The same happened during tallying. He was also denied copies of form 34 and 35.

i)     I annex hereto in evidence and marked “RO 13” an affidavit of Danson Kangari Richu from Ol Kalou constituency complains of stoppage of electronic verification of voters using the EVID by the Presiding officers who then resorted to manual voting. The same happened during tallying. He was also denied copies of form 34 and 35 and informed that the same will be sent to Nairobi.

j)     I annex hereto in evidence and marked “RO 14” an affidavit of Elizabeth Wambui Rimui Kipipiri complains that the results announced at the Constituency Tallying Centre different from those announced at the National Tallying Centre at Bomas of Kenya-Uhuru Kenyatta are increased by 655 votes (See Para 3-5).

k)    I annex hereto in evidence and marked “RO 15” an affidavit of Boniface Njiru from South Imenti constituency complaints of bribery of voters by APK campaigners. He also complains of the failure by the IEBC Offcials to tally the results in his presence. The returning officer denied him Form 36.

l)     I further rely on the evidence of Janet Ongera “RO 3” for ODM complaining of the happenings at Bomas of Kenya particularly the transmission and tallying of results.

m)  I further rely on the evidence of  Andrew  Mwambogo Mwavua contained in affidavit marked  “RO 16 

90)         I verily believe that the tallying process was shrouded in secrecy with no means for stakeholders to transparently monitor, account or verify the veracity of the results announced.

91)         I annex hereto in evidence a Flash Disc marked  “RO 17  a true record of the raw version or footage of the video recording of the televised announcement of the Presidential Election results that took place between the 5.00 pm, 4th day of March, 2013 to 9.00 pm, 9th day of March, 2013 at the Bomas of Kenya in Nairobi regarding the tallying and announcement by the Commissioners of the Independent Electoral and Boundaries Review Commission of the Presidential Election Results for the 2013 general elections and a Certificate Of Authentication of A Computer Output Under Section 106B(4) of the Evidence Act, Chapter 80 of the Laws of Kenya) by one VICTOR GEORGE MULAMBE OWINO of Post Office Box Number 1177-00502, Nairobi within the Republic of Kenya being an adult male of sound mind and an officer employed as or in the capacity of a Director of The Creative Hub Limited.

92)        The number of “rejected” ballots as displayed during the life of the electronic tallying significantly reduced during the manual tallying process without the Respondents offering any explanation therefor, thus raising questions as to the integrity of the manual tallying and the entire process.

93)        From the foregoing it is evident that the First and Second Respondents are unable or unwilling to deliver a free, fair, transparent and credible election to the Kenyan people and did not do so in the just concluded general election held on 4th March, 2013.

94)        I verily believe that the result of the non-transparent manual tallying system that was adopted and used by the First and Second Respondents was that there were and remain instances where ballots allegedly cast in some constituencies exceed the actual number of registered in those constituencies.

95)        I am aware that the Presidential election held in the Republic of Kenya on the 4th of March 2013 and conducted by the First Respondent, the following were the candidates and the alleged total numbers of votes garnered as per the Second Respondent’s declaration given on 9th March, 2013:

a)             James  Legilisho Kiyiapi                                   40,998;

b)   Martha Wangari Karua                                  43,88;

c)              Mohammed Abduba Dida                        52,848;

d)             Musalia Mudavadi                                   483,98;

e)             Paul Kibugi Muite                                             12,580

f)               Peter Kenneth                                         72,786;

g)             Raila Odinga                                           5,340,546;

h)             Uhuru  Kenyatta                                              6,173,433;

Total  No of valid votes cast                             12,221,053

96)        According to the First and Second Respondent’s above declaration, the Third Respondent garnered 50.07% of the votes cast in the presidential election held on 4th March, 2013 and was therefore declared the winner thereof.

97)        When due account is taken of the Constitutional and statutory violations of the First and Second Respondents herein, and each of them, and of their servants and agents, as well as of the gross and widespread irregularities and malpractices that occurred in the 4th March, 2013 presidential election, and the necessary deductions effected from the votes wrongfully credited to the Third Respondent by the First and Second Respondent and the nullification thereof as required by law of the results declared at the polling stations where these substantive infractions occurred, the Third Respondent did not obtain the total of more than fifty per cent (50%) of the valid votes cast as required by Article 138 (4)(a) of the Constitution in order to be duly elected President, and accordingly ought not to have been declared as such by the First and Second Respondents.

98)        That as consequence of these constitutional and statutory violations and infractions as well as the irregularities and malpractices, the results declared by First Respondent in favour of Second Respondent were far less than the fifty per cent (50%) of the votes cast as required by Article 138 (4)(a) of the Constitution thereby subverting the sovereign will of the electorate contrary to the preamble of the Constitution, Article 1 (1) and Articles 38 and 138 (4) of the Constitution, 2010.

99)        I aver that at the conclusion of the election, the First Respondent herein, acting through the Second Respondent, who was at all material times the Returning Officer for the 4th of March 2013 Presidential elections, returned the Third Respondent herein, as having been validly elected President of the Republic of Kenya contrary to the provisions of the Constitution of Kenya.

100)     In some instances, votes earned by the Petitioner were unlawfully reduced whilst at the same time, votes of the Third Respondent were illegally padded with the sole purpose of procuring victory for the Third Respondent in the 4th March 2013 Presidential Elections.

101)     I verily believe that when due account is taken of the Constitutional and statutory violations of the First and Second Respondents herein, and each of them, and of their servants and agents, as well as of the gross and widespread irregularities and malpractices that occurred in the 4th March, 2013 Presidential election, and the necessary deductions effected from the votes wrongfully credited to the Third Respondent by the First and Second Respondent and the nullification thereof as required by law of the results declared at the polling stations where these substantive infractions occurred, the Third Respondent did not obtain the total of more than fifty per cent (50%) of the valid votes cast as required by Article 138 (4)(a) of the Constitution in order to be duly elected President, and accordingly ought not to have been declared as such by the First and Second Respondents.

102)     I verily believe that the it is clear that the Third Respondent did not meet the Constitutional threshold of more than half of the votes cast in the presidential election held on 4th March, 2013 and the First and Second Respondents should not have declared or returned him and the Fourth Respondent as duly elected as President and Deputy President in that election respectively.

103)     I verily believe that all of the irregularities and electoral malpractices captured above, were nothing but a deliberate, well-calculated and executed ploy or a contrivance on the part of the First and Second Respondents  with the ultimate object of unconstitutionally and unlawfully assisting the Third Respondent to win the 4th March 2013 Presidential Elections.

104)     I verily believe that as consequence of these constitutional  and statutory violations and infractions as well as the irregularities and malpractices, the results declared by First Respondent in favour of Second Respondent were far less than the fifty per cent (50%) of the votes cast as required by Article 138 (4)(a) of the Constitution thereby subverting the sovereign will of the electorate contrary to the preamble of the Constitution, Article 1 (1) and Articles 38 and 138 (4) of the Constitution, 2010.

105)     I verily believe that at the conclusion of the election, the First Respondent herein, acting through the Second Respondent, who was at all material times the Returning Officer for the 4th of March 2013 Presidential elections, returned the Third Respondent herein, as having been validly elected president of the Republic of Kenya contrary to the provisions of the Constitution of Kenya.

106)     I verily believe that by virtue of Article 3(2) of the Constitution of Kenya therefore, any attempt by the Third and Fourth Respondents to establish a government in pursuance of the aforesaid unconstitutional declaration given on 9th March, 2013 is unlawful, null and void.

It would be interesting to compare and contrast the CORD petition with similar concerns coming out of the recent Presidential elections in Ghana.

 Given the centrality of the IEBC in the whole Presidential tally debacle, it would be worthwhile to refer to a confidential document that I had access to that was prepared a few days BEFORE the March 4, 2013 Elections.

What I have in my possession in a slightly redacted version entitled   BRIEF: The Façade That is the IEBC which runs to  12 pages.

Here is excerpt #  1:

The March 4, 2013 Election is critical to Kenya. The 2007 post-election violence should have given the IEBC impetus, and an opportunity, to organize an orderly, democratic election guided by massive civic education. But apparently, the Commission has failed in this regard. It has no fidelity towards election laws.[1] It brazenly breaches electoral timelines and tendering procedures and rules. It delayed on the acquisition of the BVR kits, allowed primaries to take unduly longer and the ensuing disputes to drag on for about ten days. In apparent flouting of the law, the Commission appeared to give a nod to party-hopping after the nominations. Political parties couldn’t stick to schedules because IEBC wasn’t able to play its supervisory role.

All this affected (and compromised) the country’s preparation for the next General Elections. By implication, IEBC is playing with “extreme timelines”.[2] (Interviews indicate that the shambolic primaries gave commissioners an opportunity to make money – in the form of bribes from losing candidates out to seek clearance from alternative parties)

The Commission is under the control of two competing centres of power: one inexperienced; the other stiff and corrupt. One is good natured and reckless, the other is careless and greedy. The chair is meant to work with commissioners to direct policy; instead he micro-manages the commission by dealing directly with sectional heads at the secretariat. There’s a fusion of government and political patronage in the management of the Commission. In fact, commissioners still watch their backs. In law, the Commission and commissioners are meant to be independent. But they are not. So, for whom does IEBC work?

Kenya is a constitutional democracy. Thus, IEBC is supposed to facilitate people’s participation. But it doesn’t engage the public. The tendering process is very secret; the deals it enters with suppliers are hardly made public; it doesn’t consult stakeholders on budgeting; it sets election dates according to the Executive’s preference. The State and its agencies, including National Security Intelligence Service (NSIS), have infiltrated the tendering process in a manner that points to a plan to influence the next General Election. For instance, the Justice Minister, not IEBC, called off plans to register the Diaspora vote.
Parliament hasn’t made things better. MPs have maliciously watered down the legal framework that governs the elections. The Constitution is solid but the statutes are weak. “As at now I cannot tell you the amendments by Parliament,” says one elections ,” says one elections and democracy expert.
   Here is the second passage:

In the 2007 elections, the administrative preparations were satisfactory – up to the time of announcement of the results. It was the tallying of the results that was problematic. In IEBC’s case, the process has already sparked a flurry of court disputes. At the centre of IEBC’s operations are a number of concerns, among them:

  1. Manipulation of procurement (single-sourcing in tendering, deliberate delays that appear to favour particular firms)
  2. Political operatives, IEBC staff and other insiders appear to have wedged themselves between bidding firms and IEBC. The retention of former ECK and IIEC staff has ensured the infiltration of the political operatives in the operations of the Commission
  3. Behind the scene intrigues that draw IEBC chiefs/competing forces within the Commission
  4. Two centres of power at war with one another
  5. Delays in the electoral timelines.

 Very early on (and bear in mind this was written BEFORE the elections) the  authors shine the spotlight on the INTERNAL DIVISIONS within the IEBC hierarchy:

 IEBC is polarized between forces allied to CEO Oswago on one hand and those to Isaack Hassan on the other. In the BVR kit case, the commissioners as well as the tender evaluation teams were divided right in the middle, between the two forces. The divisions led to the resignation of some members of the tender committee. While Isaack Hassan favoured Face Technologies of South Africa and Symphony/CODE Inc. of Canada, Oswago and a group of staff allied to him, led by the Finance and Administration manager, appeared to front 4G Identity Solutions (4GI) of India. Issack’s point-man is Commissioner Mohamed Allawi, also known as “Mr Fix It” in the Commission. Oswago’s man is Edward Kenga Karisa, the Finance Administrative director. Sharawe and Nzibo are the only commissioners whose allegiance is unknown; they appear independent. Commissioners are allied to particular political coalitions. In fact, an analysis by Transparency International Kenya showed internal wrangles particularly between the top officials of IEBC as an indication of lack of cohesiveness within the institution. It was generally alleged that the commission has been politicized; that some commissioners were likely to be partisan.

It’s difficult to know who is in charge at the Commission.
 And in another excerpt later in the document, the authors profile the  personal feuds in the IEBC:
Hassan: He is not comfortable with Oswago and thus has his elements in the secretariat to check on the Commission’s chief executive officer. He’s very close to Gichangi, and it is said the NSIS boss was instrumental in Hassan’s appointment to the electoral body.

During the Bomas constitutional development process which started in 2003, he and Abida Ali reportedly used to make regular secret visits to State House to update Kibaki on the goings-on at the CKRC. He believes if Kenya doesn’t pull through this election, blame would be on MPs who watered down the electoral law through various amendments. That’s his consolation.

He is tardy; he doesn’t keep time. And because of this, his fellow commissioners hardly come on time for meetings or any other engagement. The secretariat is also sloppy. In a letter to Oswago, the PPOA talked about “non-attendance of tender committee meetings by substantive members”.[1]

During a scheduled meeting with Kriegler, Hassan kept his guests (who included representatives of the civil society) waiting; by the time they left, at 10 am, he hadn’t shown up. In another case, he called off a meeting with Safaricom boss Bob Collymore, which had taken months to plan. A top governance and development expert at a key NGO says, “Even when you write letters to them, they don’t get back to you”.[2]

Some of his friends say he was very independent until he became aware that Oswago was allying himself to ODM (refer to the stories that Miguna Miguna published in The Star). He then allegedly decided to “go to the other side”. He once complained to a friend that he was being harassed by Raila and Midiwo.

He seemed to be working towards a Musalia Mudavadi victory, which is allegedly why Symphony, co-owned by the UDF founder, was being fronted for the BVR tender.

James Humphrey Obanda Oswago: An advocate of the High Court who studied in Kenya and US. He loves money; he’s a political operative, who unsuccessfully vied for the Rarieda parliamentary seat in 2007. He’s ambivalent, he wants to eat. Those close to him say that he feels this is the time to eat; such an opportunity wouldn’t beckon in future, he feels. At one time he was reportedly ferried to France and treated lavishly, to influence him to give the tender to Morphoso.

He has given Hassan so much leverage to an extent the latter micro-manages the secretariat. Indeed, commissioners are meant to direct policy but Hassan is always part of the procurement process.

Hassan tried to remove him after the expiry of IIEC but a Mr Ben Ombima, a voter in Vihiga, rushed to court to stop the IEBC move. Lawyer John Harrison Kinyanjui fruitlessly sought the help of the courts to block Oswago.

The retention of former IIEC and ECK staff has given political operatives (Yombra, Chirchir, Dena, Bill Kaggai[3] etc.) space to infiltrate the operations of the Commission.

 The most important part of this confidential report, in my opinion has to do with tendering as you can see below:

Things take time to evolve. For IEBC, it is the case of “echoes from the past”. The old patronage system appears to be at work at the IEBC. In a recent ruling, the High Court described IEBC’s procurement of ballot papers as “indiscriminate and clandestine”. That apart, by handing over the BVR tendering process to the Office of the President, IEBC (and by extension Hassan) lost credibility and independence as the country’s electoral body. Stakeholders wonder whether elements in the Commission are pushing their own interests or it’s a matter of laziness and incompetence. Elements within and without IEBC have infiltrated the tendering process.

The Commission is not very transparent when it comes to money matters. It has failed one test after another where procurement and financial probity are concerned. The issues of financial integrity have a profound bearing on electoral integrity. If the IEBC cannot pass the test of financial integrity, Kenyans shouldn’t expect it to pass electoral probity and integrity.[1]

Manipulation: IEBC structures its tendering systems in a way that seems to favour certain interests.  In the case of BVR kit, the NSIS had its self interests – to ensure that Symphony got the tender, and to block 4GI Solutions - feared to be fronted by ODM operatives. An IT expert, Bildad Kaggai, said to be Hassan’s de facto advisor on technological matters, was NSIS’s man in the tendering process.

Little, if any, due diligence is conducted on bidders. The oft-cited delays in the electoral process (tendering) appear deliberate, either to pave way for single-sourcing or pursue particular bidders, and to circumvent the law. In the BVR case, IEBC, apparently in breach of the procurement law, failed to develop criteria for financial and technical evaluation (that’s why Face Tech, which had quoted Sh810 million above IEBC’s budget, was picked for the job although it later lost out to Symphony which eventually lost out to Morpho France). PPOA has complained that unauthorized people attend the opening of tenders[2] i.e. NSIS and political operatives. In the case of ballot papers, the contract between IEBC and Smith & Ouzman talks about “supply of fifteen million ballot papers”. Unless it is a typo, this figure is an extreme underestimate of the massive project.

In the case of Hopeland Adverts and Designs (the company given the tender to print 279,100 IEBC branded bags), the Commission failed (or deliberately refused) to undertake due diligence before awarding it the Sh80-million contract. The company has no warehouse to store the bags, that’s why Administration Police traced some of them in a residential home in Embakasi, Nairobi. That is hardly all; the company (established in April 2008, and whose directors are John Ohas Omondi and Martin Omollo Omondi) won the tender despite its weak assets’ base: It has a capitalization of just Sh50, 000 (divided into 1,000 shares of Sh50 each), according to its filings at the Registrar of Companies and Business Names, Sheria House. It is akin to the so-called briefcase company, and if it were to default on this contract, IEBC would find it impossible to recover its money.

Political operatives and interests: Political operatives, IEBC (and/or its predecessor) insiders have conveniently wedged themselves between the Commission and potential bidders/suppliers. The NSIS is also alleged to have a hand in the tendering. 4GI Solutions, which came tops in the BVR tender but was denied on accusations that it was blacklisted by its home country, India (an accusation it dismissed), came to Kenya through the Goldenberg architect Kamlesh Pattni, who was its local contact. Along the way, it dropped Pattni and switched allegiance to former President Daniel arap Moi. A political operative (a candidate for Baringo Central parliamentary seat, 2007), Simon Yatich became the linkman between the former president and the Indian company. In fact, Yatich represented 4GI Solution during the BVR bidders’ conference at Nairobi Safari Club (Lillian Towers) on June 14, 2012. The other contact person was Jakoyo Midiwo, immediate former MP Gem, and Joint Parliamentary Chief Whip, Raila’s cousin, who travelled to Hyderabad, India, to meet its owners.

The two competing forces at the IEBC had their interests taken care of in Parliament. Hassan had Abdikadir while Oswago sought the assistance of assistant minister James Rege, the chair of Capital Realtime, which he co-owns with Kiprono Kittony and Rosemary Kittony. James Rege immediate former MP Karachuonyo, sometime chair of parliamentary committee on communications and IT.

The local representatives of Smith & Ouzman (the company awarded the Sh2 billion tender for printing and supply of ballot papers) are Trevy James Oyombra (procurement officer of defunct ECK) and Joseph Dena Hamisi (defunct ECK commissioner, appointed in August 2011 as director of Kenya National Accreditation Services). Trevy Oyombra is well connected in Kenya’s electoral system. He is the person who introduced Smith & Ouzman to the ECK and its successor, the IIEC. He is said to be among officials who destroyed key documents when the ECK was disbanded following the botched elections in December 2007.

Through political operative Davies Chirchir (commissioner of defunct IIEC, now URP secretary general), the IEBC chair Isaack Hassan made contact with CODE Inc. (which was meant to produce the BVR but got wound up in inexplicable circumstances before it could embark on the task) during the tendering stage. The Canadian government and UNDP fronted Code Inc., which had produced the initial kits that piloted the project in Kenya.

Bill Kaggai, an NSIS informer and close confidante of Hassan, was the front man for Haier Electricals. He took care of Hassan’s interests and those of the NSIS.

Immigration Minister Otieno Kajwang is the contact person for the Thallis Group, which is said to be printing and supplying part of the ballot papers’ consignment on behalf of Smith&Ouzman.

Ballot Papers: The contract for ballot papers, described by the High Court as “indiscriminate and clandestine” is faulty, if not deliberately drafted to favour the Smith & Ouzman Company. First, it hugely underestimates the magnitude of the task. Based on simple arithmetic, IEBC requires a minimum of 84 million ballot papers (14 million voters, six ballot papers each) for the first round of voting, yet the contract states “15 million ballot papers” at the rate of Sterling pounds 11,716292.12 (equivalent of KSh1.7 billion, at the current rate). “Contract is for the supply and delivery of fifteen million ballot papers and statutory result forms for the General election to the Commission,” the contract, signed between IEBC and Ouzman on December 11, 2013, states. But in a letter to the PPOA, Oswago talks about 108 million papers plus 17 million in case of a run-off.

Interestingly, in a letter of notification to Smith&Ouzman dated December 11, 2012, Oswago hardly mentions the number of ballot papers but merely states “supply and delivery of various ballot papers for the General Election at the total cost of GBP11,716,201.12”. He then adds: “The total cost for the General elections and Presidential re-run ballot papers shall be GBP13, 135,946.48 (inclusive of run-off costs)…”

There can only be two explanations. One, these are presidential ballot papers. Implicitly, the IEBC may have entered into several agreements with the firm and it is yet to make public the rest of the contracts. If this is the case, then IEBC is not telling the public the true position about the project’s cost. Two, the “flaw” leaves room for renegotiations – a lacuna that can be seized by shrewd individuals within the IEBC to make money. Indeed, the contract provides leeway for “price adjustments” and “direct informal negotiation”. Contacted by a journalist, IEBC chairman blamed the secretariat for the “anomaly”. He said, “These things are done by the secretariat. I don’t know why they did it that way.”[3]

Inexplicably, this contract was signed a week before the closure of the voting exercise, when the number of voters wasn’t clear. Thus, the rush was perplexing, given that IEBC was to dispatch names of candidates 49 days later, after the completion of the primaries and resolution of any ensuing disputes. In fact, according to the time-chart proposed by Smith & Ouzman, the printing and production of ballot papers was to commence on January 28, 2013 and the ballots to be dispatched to Kenya between February 15, 2013 and February 22, 2013.

Interestingly, IEBC gave out a letter of acceptance to Smith & Ouzman even before the company presented its bid documents on November 12, 2013, according to a copy of the contract in our possession. The letter of acceptance is dated November 9, 2013; issued three days ahead of the delivery of bid documents. (It is instructional to note that Ouzman is the same company that failed to deliver during the 2007 election: The ECK was forced to give out part of the project to Kalamazoo Company (to print Presidential and MP ballots). Implicitly, the IEBC failed to conduct deep due diligence on Smith & Ouzman and its local contacts)

According to sources within the IEBC, Praxedes Tororey, the director of Legal and Public Affairs declined to append her signature to the Ouzman contract on concerns it was faulty and hastily drafted. Instead, it was signed by her junior, Mahamud Jabane (manager, Legal Services) who is said to be “very close to the Chair”. She felt there was enough time for competitive bidding – or enough time to invite a particular number of bidders. She also raised questions about the capability of this company to deliver on time, to execute the massive project. She argued that Smith & Ouzman failed to deliver in Nigeria, leading to the rescheduling of the country’s elections.

In all IEBC correspondences, there is no mention of Smith & Ouzman’s failure to deliver in 2007. According to Tabitha Mutemi, IEBC spokesperson, “the Commission and the tender committee approved the single sourcing because of the timing; (the company) has been tried and tested and we have to have a supplier in place as we wait for other activities like party nominations to take place”.[4] She didn’t indicate why there had been delay in the first instance. “(It) has given IEBC an assurance that it will meet its contractual obligations on time and IEBC has undertaken due diligence on the matter,” Oswago wrote to PPOA boss Morris Juma.

Control: IEBC may not have control over this project.  Smith & Ouzman is undercapitalized for such a huge project. It had Sterling Pounds 9,238,816 (2011) turnover yet it was seeking to undertake Kenya’s Sterling Pounds 13,135 946 project. While some sources say Ouzman has outsourced to Thallis Group and AI Security Printing, others said it had given part of the job to a South African company, which has in turn subcontracted to a Chinese company. (One of the clauses of the initial contract between Ouzman and IEBC, December 2012, forbids outsourcing. Insiders say Ouzman officials visited the country last month and had the clause reviewed). Those opposed to Ouzman’s award (among them Kalamazoo and Aero Vote UK) say the bidder lacks capacity to undertake such a massive project.
It is instructional to note that Smith & Ouzman got the tender to print some – NOT ALL – of Uganda’s ballot papers, in the 2011 elections. It printed the Presidential and also District Woman MP ballots papers. The rest went to three other companies – Kalamazoo, Avic International Holding Corp, and Lithotech International.

Here is an interesting titbit about the BVR kits and the poll book:

BVR:  In the case of BVR kits supply tender, IEBC was lethargic and tardy. While the process began on February 22, 2012, with the “invitation for bids”, IEBC had not awarded the tender by September 2013. Interestingly, despite complains that IEBC was time-strapped and the process running behind schedule, it took the tender evaluation committee 43 three days to submit its report (technical and financial evaluation). The deadline for submission of bids closed on March 26, 2012 yet the evaluation committee submitted its report on May 7, 2012.

Based on the correspondence we have, it would appear the delay might have been deliberate – designed to favour Face Technology and/or Symphony (a company associated with businessman Da Gama Rose and a well-known political operative of the TNA party, Mary Wambui).

Even as the IEBC squabbled as whom to award the tender, behind-the-scenes negotiations were taking place between key officials of IEBC and CODE Inc. and/or Symphony. According to leaked correspondences, at the centre of the under-the-table deals were CODE Inc. Marketing and Business Development Manager Gordon Sinclair, Symphony chief executive officer Rajendar Singh Sachdeva and IEBC chief Isaack Hassan. Political operative Davies Chirchir (IIEC commissioner, now United Republican Party (URP) secretary general) was the linkman between CODE Inc. and the Commission chair, and between CODE Inc. and Symphony.

It would appear Isaack Hassan secretly informed CODE Inc. that Symphony was poised to clinch the tender. He passed on privileged information to the company. “I should say that I contacted the Chairman (Hassan) and offered a possible solution to the, can we say stalemate, and told him I thought (sic) a way out of the dilemma might be a cooperative effort to and I thus mentioned in a frank and direct manner we would be open in working with a another firm,” said Sinclair.[1] The IEBC chief would later confirm that he, indeed, made contact with the Canadian firm. “They asked me whether they can partner and I told them to see if he can work with any of the four companies shortlisted, but we did not identify any specific company.”[2]

The Canadian company was well aware of the status of the tendering. In fact, as early as the first week of June 2012, CODE Inc. had the information the contract would go to Symphony – almost a fortnight before the Tender committee rejected the 4GI Solution’s bid (the least quote) in its meeting in June 22, 2012 and appointed a special team to carry out a financial evaluation, which produced a report on June 30, 2012. Indeed, on June 6, 2012, Sinclair wrote to Rajendar requesting a partnership in supply of the BVRs. In the letter he claimed to have “close relationship with the head of the commission, one based on mutual respect”, in apparent reference to Isaack. In response two days later, Rajendar said his company was “a critical juncture of the project and our concentration is focused on closure of the deal right now”. In the letter, Rajendar confirms that his company was almost striking the deal with the IEBC.

On July 2, 2012, IEBC decided to give the tender to Face Technologies of South Africa – well aware that the tender would go to Symphony. In hindsight, Face Tech appears to have been a smokescreen. Indeed, Symphony had already been tipped off for the massive project. Because some people had “eaten” Face Tech’s money, the whole process had been choreographed to placate the South Africans yet ensure Symphony got the job.

(Face Tech later got the tender to produce Poll Books. This was seen as a reward for having missed out on BVR)

The IEBC chairman allegedly sent texts to a number of commissioners and members of the tender committee to ensure Face Technology got the tender. He was at the time attending a Commonwealth meeting on electoral management, held in Toronto, Canada. The text read “make sure you give it to Face Tech”. Somehow, an IEBC insider says there wasn’t enough push to have Face Tech take the contract. “They were merely interested in the money and later say, “we tried to give it to you but failed”.

CODE Inc. was among the 29 companies that didn’t go through the initial evaluation. However, as will be seen later, it eventually clinched the tender through the “Government-to-Government” deal between Kenya and Canada. Interestingly, in his communication with Mr Rajender, CODE Inc. hints at a compromised IEBC. “We are not looking to take over this contract, although simply saying hey, we’ll do it all and split the profits may sound interesting to one side but it is not our way nor our vision of things. I can say we are very open to a method that means successful closure on this activity, it is well known in Kenya we are more than cooperative, I can safely say the chairman will back us up on this as will many others in and around the IEBC.”

From the outset, the BVR tendering was contentious. Political operatives, NSIS wedged themselves in the process in attempt to influence the outcome. Indeed, in a bid to discredit the potential winner, 4G Identity Solution, the NSIS (through the Ministry of Foreign Affairs) in collusion with some elements within the Commission, wrote to a note to IEBC suggesting that the company had been blacklisted back at home in India.  This was despite the fact that a due diligence team that also comprised UNDP, had visited the company’s premises and given it a clean bill of health. Commissioner Allawi single-handedly fought the Indian company. Oswago was for it.

4GI Solutions President claimed that his company failed to clinch the tender because it declined to fork out a Sh30 million bribe, demanded by some people Foreign Affairs Ministry.

Oswago had written to High Commissioner, through Foreign Affairs, to carry out a due diligence of the firm

On May 31, 2012, John L. Lanyasunya, the head of Asia and Australasia Directorate, Ministry of Foreign Affairs wrote to Oswago thus, “The (Kenya High Commission) in New Delhi has conducted a due diligence … and has requested us to convey their strong advice that their findings indicate the above mentioned entity (4G Identity Solutions) should not be allowed to enter into any business transaction with any Government institution in Kenya. Kindly be advised accordingly.” Interestingly, Kenya’s mission supposedly took just two a day to undertake due diligence on this matter.

Lanyasunya wrote to Mr E. M. Barine, Kenya’s High Commission in India, on May 29, 2012 to check on the following: existence of 4GI Solutions; nature of business it carries out and the experience it has within and outside India; its financial capability to execute the contract; its legal status, and its litigation history. “It would be highly appreciated if a comprehensive report on the above is submitted for onward transmission to the (IEBC) for further necessary action.” The following day Mr Barine communicated, saying the company had been suspended for failure to execute a BVR project in India.

“Given the gravity of the violation, despite the high priority the Government of India is giving (to the exercise) highly tied to the future security of the country against infiltration and continued terrorist threats, the lack of sensitivity by 4G identity Solutions to national security is in high breach of trust … the (Kenya High Commission) is of the strong view that Kenya should blacklist the company bearing in mind the challenges facing the country in particular, international terrorism that continue to stalk the country,” Barine wrote back to the Permanent secretary, Ministry of Foreign Affairs.

The company disputed the report. In a letter to Oswago dated July 23, 2012 Dr Sreeni Tripuraneni, the company’s chief executive, produced copies of reports indicating that it had not been blacklisted by the Indian authorities as claimed by Kenya’s High Commission in New Delhi. “We have a strong feeling that (the letter by Ministry of Foreign affairs) was written after we refused to compromise on corruption. We would like to bring to your attention that on various occasions, we received telephone calls from people in Kenya High Commission in India and Kenyan Ministry of Foreign Affairs, Nairobi, telling us that we needed to pay money to enable them to write a positive letter to IEBC.

“Having failed to agree to the numerous requests, a certain Mr Hadson M’boya who claims to work in the Indian High Commission in Nairobi approached our local partner demanding Sh30 million on behalf of officers in Kenyan Ministry of Foreign Affairs to enable them write a favourable letter to IEBC.” The letter claimed that a Mr R.A Goenka (who claims to be Kenya’s consul in India) asked the company to contact Engineer James Rege to “facilitate the transaction”.

Later, in an interview with the media, Thuita Mwangi, the Permanent Secretary, Ministry of Foreign Affairs, disputed the existence of a Mr Goenka as Kenya’s consul in India. However, the website for Kenya’s High Commission in India says of Goenka, “The Government of Kenya appointed Mr. R.A Goenka as its Honorary Consul on 28th October 2003. Mr. Goenka who was born on 15th July 1942 has over thirty years experience in both import and export business ... Mr. Goenka has consular jurisdiction over the State of Maharashtra and will be useful to both Kenyan and Indian nationals in this state”.

Kenya/Canada deal: Unknown to the public, the acquisition of the BVR kits wasn’t a bilateral deal between Kenya and Canada. Rather, the Kenyan Government borrowed money from Standard Chartered Bank to pay Morpho France for the kits. Canada merely played the more minor role than has been stated. “Canada provided Kenya with the names of two Canadian companies that it would be prepared to support in delivery of the project to Kenya.”[3], which were Morpho Canada Ltd, a subsidiary of Safran Morpho, France.

“Morpho Canada, working in conjunction with Morpho France, was approved by Canada as these companies had the technical ability to provide the kits within the short timeframe required. Canada is pleased to have been able to assist the Government of Kenya with this important initiative, which stands to contribute towards a credible, fair, transparent, and peaceful election.”[4]

This contrasts the position by IEBC. “The Agreement for sale and purchase of BVR hardware and software between Canadian Commercial Corporation (CCC) and IEBC/Treasury was signed on September 24, 2012. A down payment of 40% was made on October 5, 2012. The contract involves supply of 15,000 BVR kits and a back-end system. The Financing Facility Agreement (FFA) between GOK/Treasury and Standard Chartered Bank that covers the entire contract is still under negotiation and should be concluded by 26th October 2012. It was required to have been in place by October 15, 2012 to give an assurance that the balance of 60% of the contract would be paid”.[5]

Canada had wanted CODE Inc. to take up the contract but the company was wound up before the negotiations were finalized.

In the final analysis, Kenya ended up spending Sh8 billion for a project that should have cost Sh3.2 billion

Poll Book: South-Africa-based Face Technology won this tender. However, there are concerns about its ability to deliver and on time. Its implementation of similar contracts in a number of African countries has been questioned – in Sierra Leone, Lesotho, Namibia, Uganda, and Nigeria.
The document concludes with the following words:

According to the Constitution of Kenya 2010, Articles 88(4) and 99, the superintendence, control and direction of conduct of all elections including referenda in Kenya is bestowed to IEBC. The phrase “conduct of elections” is held to be of wide amplitude. Therefore, IEBC has all the powers over the conduct of the election including party nominations, verifying integrity of election candidates, scrutiny of political party and independent candidate election campaigns expenses incurred in order to maintain purity and transparency of elections.

IEBC must understand that its persistent inconsistencies on fundamental processes of election leading towards March 4, 2013 including enforcing the law gravely undermine its institutional integrity and credibility. Further trust of the public, of election candidates and of political parties in the electoral process and the way in which it is administered are crucial not only for the electoral exercise itself, but for the credibility of the government that results. The Grand Coalition Government had a serious legitimacy deficit caused by irresponsible and reckless electoral institution compromised by partisan political actors. Public and political players’ perceptions are key and IEBC should take this very seriously.[1]

In as much as transparent and competitive recruitment as well as the hiring of permanent staff that are dedicated to the organizational objectives have bolstered the credibility and functionality of the IEBC, there is still a challenge in achieving independence.[2]

This time round, we are the most ill prepared for the elections that we have ever been. The legal framework should have been in place a year ago. But by last September, many things were not in order.

The influential Africa Confidential  London-based newsletter has devoted a considerable chunk of its current edition in looking at some of the issues bedeviling the Kenyan contest.

Many friends of Kenya like the internationally respected Jamaica born, US-based revolutionary thinker and Pan Africanist, who was recently in the country have gone on the record in  calling the March 4 elections and electoral fraud as you can see from this piece he did for the widely read Pambazuka online  newsletter that reaches upwards of  500,000 readers every single week.

Peter Greste, blogging on the Al Jazeera site, is also demanding that election flaws need answers.

Mainstream publications  have weighed in with their various  takes on the putative, if contested Uhuru Presidency. That darling of Western policy wonks, Foreign Policy magazine, tags Mr. Kenyatta as

"Kenya's Most Wanted" even as it advises the United States that it must find a way to work with its East African ally, even if it's run by an accused perpetrator of crimes against humanity, in this piece by Suzzane Nosel.

The Economist, in its March 16th edition calls Mzee Jomo's son as a "chip off the old Kikuyu block" who must convince Kenyans that he is his own man.

The Atlantic argues that "the credibility of the vote won't come from technical soundness but from political goodwill" in their March 14th edition.

It has been interesting to read articles from Kenyans  generally deemed to be of a progressive mien. Mukoma wa Ngugi, son of  the celebrated novelist and an accomplished writer in his own right penned an op ed for the left leaning Guardian entitled How the West was Wrong. Not to be outdone, Binyavanga Wainaina who has won kudos on the Kenyan literary scene by nurturing new writers and artistes via his Kwani?  journal argued that Kenyans elected Uhuru because they wanted peace. He seemed to have retreated from this position in his subsequent tweets, exclaiming in three of those thus:

1. @BinyavangaW After days and more than a week of trusting, I am finally persuaded that far more is going on at the IEBC than we r being told.

2. @BinyavangaW behind walls of authority& the goodwill I and others have given, panic is starting to smell - panic of possible manipulations

3. @BinyavangaW too many powerful people are going too far to silence good basic questions.

Meanwhile, Ngugi wa Thiong'o himself, after some initial waffling, is now stating in the New York Times that:
 Mr. Kenyatta and Mr. Ruto share more than political expedience: they both face charges of crimes against humanity before the International Criminal Court for their alleged roles in the 2007 clashes. They have pleaded innocence, but they also deftly exploited the charges during the campaign, presenting themselves as victims of imperialist interference. Mr. Ruto faces another legal battle over allegations that he stole land from someone who fled the violence.

Against the backdrop of political intrigue, Kenya struggles against exploitative practices by Western corporations. A self-isolated middle class cruises in luxury above a sea of poverty. Nairobi’s skyscrapers and opulent hotels dazzle the foreign observer’s eye, while blinding it to the shacks, broken roads and unfinished World Bank projects.

Will Mr. Kenyatta and Mr. Ruto, two of Kenya’s wealthiest men, revive the economy, reduce poverty and corruption, resettle displaced persons and prioritize the interests of ordinary Kenyans? I am skeptical.

Kenya has never enjoyed a truly democratic culture. A new Constitution adopted in 2010 tries to decentralize powers and set up checks and balances. It offers a chance to roll back the entrenchment of the Moi legacy. Only then, finally, might the nation silence a motto Mr. Moi once embraced, without a trace of irony: “L’état, c’est Moi.
 About a week or so ago, on the morning after the night before, when the television stations KTN and Citizen crowned "Mr. President" hours before the IEBC made the official announcement, I was spoken at about 4 am in my Eastlands working class apartment by two things.

Outside, hordes of TNA youthful yodelers, still clad in their  21st Century war paint aka their red TNA shirts, woke me up with their raucous yodelling of "Round1! Round 1!"  running up and down the otherwise quiet CORD strong hold with most of the occupants struck deaf mute with the declaration of Uhuru as the winner.

The second thing which happened was my cell phone ringing.

I looked at the caller ID and it was a friend of mine who is a well known Raila Odinga supporter in Kenya's civil society formations.

"Onyango Oloo!"

He shrieked out my name, by way of greetings.

"I am so happy!!"

I was a bit taken aback. I did not expect any supporter of CORD to be celebrating at this point.

" I am so glad, Secretary General. We have won! I have not slept a wink! I have been dancing and singing! We have won!! And you, SG, will be appointed Cabinet Secretary for Justice! Have you spoken to your folks in Kisumu. What will  the Njonjo Mues, Kepta Ombatis, Maina Kiais,  Cyprian Nyamwamus, Njeri Kabeberis, Yash Pal Ghais, Harun Ndubis, Mugambi  Kiais and Gladwell Otienos say! Ati ICC! Screw Johnnie Carson! We Kenyans have proved that we are  the masters of our own destiny! Ati choices have consequences! We have chosen His Excellency Freedom Kenyatta as our  Fourth President and that is final!"

It finally dawned on me what had happened. I started chuckling.

My friend had confused me for my namesake, the OTHER Onyango Oloo, the Secretary General of TNA, Uhuru's party.

For the avoidance of doubt, there are actually at  least TWO Onyango Oloos who are  frequently confused for each other.

Here are I am, with my namesake outside the Hotel Inter Continental:

I was too shocked to utter a word.

My ebullient friend saved me from saying anything because he soon  hung up the phone, too intoxicated with  Jubilee jubilation to notice that he was  talking to the WRONG Onyango Oloo, the Marxist-Leninist who is Secretary for Ideology for the communist leaning SDP  who vowed way back in early February 2013 that I was going to vote for  Raila Odinga.

Since he had called me around 4 am on that fateful Saturday morning, I waited until 6:18 am to send him a text message thanking him for his celebratory early morning wake up call, but gently pointing out that perhaps he was actually looking for my namesake. Engulfed  with embarrassment, my friend did not call me back for four days.

Who were the real losers in the 2013  elections?

As the Supreme Court decides if Uhuru Kenyatta won the Presidency, I want to focus for a moment on who in real terms lost in the Kenyan elections.

In my humble opinion it was the WOMEN of Kenya.

Here is what a friend of mine who was busy monitoring events in the Women's Situation Room emailed me about a week ago:

As the Country focused on the presidential results, the WSR began to receive returns on the performance of women candidates for the various open seats contested in the General Election being the Presidential, parliamentary, gubernatorial, senatorial as well as women’s and county ward representative offices.
While many women vied through small parties or hitherto unknown parties in their attempts to win seats, they were not as lucky as the men who in quite a number of constituencies and counties who went on to win by going against the grain of party wave.  While the suit-vote dominated major areas of TNA, URP, Wiper  and ODM, in some cases there were the skirt and blouse voting system. For instance, in Nyeri the Governor was from GNU, Senator from NARC and Women’s Representative from TNA.
Despite women being locked out of presidential, governor and senate positions, there are unique trends emerging in these elections.  A further consolation is that 16 women will be nominated by political parties to the Senate. However, the same does not apply for the gubbernatorial position. Another two women, one being a youth and another a person living with disability will also be nominated to the Senate.
At the end of tallying 16 women had been elected into Parliament. For the first time in the history of Kenya, a Maasai woman defied traditions that barred women from assuming leadership positions, Peris Tobiko made history by being the first Maasai woman to elected into parliament for the Kajiado East Parliamentary seat. Nyanza has also been in a lull since 1992 when Phoebe asiyo contested last and won also elected a woman, Millie Odhiambo for the Mbita Parliamentary seat. Odhiambo served in the previous Parliament as Nominated MP. Teso community, bordering western Kenya and Uganda also defied its cultural norms to elect a woman Mary Emaase into parliament. In total there were six women from Central Kenya, Coast 1, Nyanza 1, Western 1, Lower Eastern 3 and Rift Valley 4.
The 16 women Mps will join the 47 women who have been elected as Women Representatives from 47 counties to bring the total number of women elected into the National Assembly to 63. These will be joined by another 12 members who will be nominated by parliamentary political parties and among these will be a few women and  will represent special interest groups including youth, persons with disabilities and workers.
The WSR observes with appreciation the Governor-elects who nominated women as their running mates. It appreciates that five women will be working with the governors in management of the counties as deputy governors. These are in Kitui (Penina Malonza), Kwale (Fatuma Achani), Mombasa (Hazel Nyamoki Katana), Makueni (Adelina Mwau) and Kisumu (Ruth Adhiambo).
Despite there being no women elected to the Senate, the House will have   16 women who will be nominated. There will be an additional two members being one man and one woman representing youth. There will also be two members representing persons with disabilities being one man and one woman.
While the National Assembly will have a total of 350 members including the Speaker, only 65 women will be in the august House and this will make 18 % of legislators. In the Senate there will be 18 women out of a total 68 members making 26% of its members.

Sobering statistics eh?

One can add that  many PROGRESSIVE candidates did not make much headway, given the way Kenyan mainstream politics is dominated by money, tribalism and petty personality squabbles.

But returning to the Presidential, Parliamentary and County contests, let us ponder on the following special Kenya Gazette officially confirming who was elected on what party ticket across the country.

One can see that the new power dispensation ushered in by the 2010 Constitution maps out very interesting dynamics especially when it comes to county governments an and its implications when it comes devolution, popular participation and the equitable distribution of resources, especially in the wake of discovery of oil, natural gas, gold and other mineral resources in historically marginalized communities like Turkana, Kwale and Migori for instance.

We have to mull over what it means when Kenyans, in six out of the eight former provinces  voted overwhelmingly for Raila Odinga and the CORD team. What does this say about the moral and national legitimacy of Uhuru Kenyatta and William Ruto across Kenya. We still ruefully remember that the Jubilee celebrations took on an overtly ETHNIC tone largely restricted to the Gikuyu, Meru, Embu and Kalenjin  strongholds of that alliance. What are the implications for national harmony and unity?

Paul Kelemba aka "Maddo" along with his cartoon counterpart "Gaddo" are among the keenest political commentators on the contemporary Kenyan scene. Check out his last pictorial column which appears every Saturday in the Standard newspaper:

 Not to be outdone, Gaddo, who comments editiorially through his cartoons for the Nation Media Group-the largest media house in the East and Central African region, had this offering:

 It looks like the Uhuruto tag team are not wasting any time in getting their hands on the levers of state power. Mr. Kenyatta is already acting Presidential complete with his  heavy duty security detail and outriders. A few days ago he got a high profile briefing from senior state bureaucrats on how to handle the transition to the highest office in the land.

I am made to understand that one of the key briefings Mr. Kenyatta received  was from a top secret position paper titled, Executive Summary: Issues Arising from the Implementation of the Office of the President Act.

The  11-page document has  12 points: (i) Determination of the Architecture of the New Government where the President Elect is advised to put in writing the number of ministries and departments guided by Articles 135, 131 and 150 of the 2010 Constitution which confers on him  Executive powers to make this determination; (ii) Designation of Ministries and Departments in which there is a recommendation to consider ministries as departments; (iii) when it comes to applying for positions of Principal Secretaries among which is the recommendation that Permanent Secretaries should assume the powers  and functions of Principal Secretaries in the interim and that the  current Head of the  Public Service should assume the role of  Secretary to the Cabinet. There are other points but the gist of  the recommendations is that the President Elect's first major administrative act  should be to appoint that person who will be the effective head of the public service. In the meantime, until the  new President is sworn in, all the  members of the Grand Coalition Government Executive, including the President, the Prime Minister, the Vice President and the outgoing ministers should remain in office with the ministers effectively de facto Cabinet Secretary.

This may be a minor, even moot bureaucratic detail, until you remember how skewed in terms of power balance the Grand Coalition regime was with all the plum and powerful cabinet  positions  being hogged by Kibaki's faction including the portfolios of Finance, Defence, Internal Security, Foreign Affairs etc, the so called "Harambee Avenue ministries" as opposed to the "Community  Hill" dockets, so named because of their locations with the former in geographic proximity to the Office of the President.

It was not altogether accidental that CORD supporters who showed up outside the Supreme Court on Saturday were tear gassed with one person  even being shot by the police. Some reliable sources told me that the order came within the top echelons of the  public service who have  abrogated the role of being the "Government". The fact that the cops were attacking supporters of the sitting Prime Minister who effectively coordinates all ministries and the public service speaks volumes of the depth of contempt that  these "Government" mandarins reserve for Rail Odinga and his wing of the Grand Coalition. Does the Inspector General know that  he has no powers whatsoever to violate the constitution by  allegedly "banning"  demonstrations and other acts of democratic protests deeply enshrined in Kenya's supreme law of the land? Somebody should haul his ass to court pronto.

A lot of  faith has been invested in the Willy Mutunga anchored Supreme Court to dispense electoral justice within the next two weeks.

But we should remember that in ALL democratic struggles one must be consciously aware of the exercise of   raw state power through all  of its coercive instruments including the police, the security intelligence agencies, the armed forces and the ideological structures like the churches and other religious institutions, the media and the institutions of higher learning.

One must make a careful assessment of the  dynamics between the various classes, strata, factions and fractions. In the Kenyan context we can not ignore  the bonds forged through regional and ethnic alliances and  relationships.

Kenyans must reflect on what it felt to be a progressive American when George Bush stole the elections in 2000; they must ponder on what it meant for people like myself and other democratic minded folks in Ontario when  Mike Harris was elected Premier of Ontario, Canada in March  1995 or for that matter what  revolutionary Germans went through when Adolf Hitler was elected Prime Minister (Chancellor) in  1933.

In other words, do not make the mistake of pegging all our collective hopes on a Supreme Court decision which may or may not go Raila Odinga's way.

As a Socialist, I believe that ALL ultimately successful democratic struggles are by their very nature, PROTRACTED, they unfold over a long period of time. It took us  20 years to get a new constitution. Why do we assume that the  retrogressive forces of impunity will throw in the white towel without a fight?

I think we should turn to our South African comrades for insights and inspiration on how to close the deal on  democratic struggles. One of their foremost ideologues was Joe Slovo, the Chairman of the Communist Party who died in  1995. Another leading thinker is Jeremy Cronin, the poet revolutionary who is the Deputy Secretary General of the South African Communist Party and currently one of the assistant ministers in Jacob Zuma's government. Here is a link to one of his most famous essays, The Boat, the Tap and the Leipzig Way.

If you do not remember anything else in Cronin's seminal essay, remember this:

I  have tried to show in both Parts 1 and 2 how the way in which we approach the immediate period of transition is deeply intertwined with our medium and longer-term strategic perspective on the character and content of democratisation itself. And, in turn, these two questions inform the other critical strategic question: what kind of organisations do we need to build right now?

On this last question, once more, and by contrast with the position I have just elaborated, we find a paradoxical convergence among the three strategies I critiqued in Part I. All three have a tendency to fall into one or anothe rvariant of statism.

Strategy one tends to over-invest in the ANC as government- (that is, bureaucracy-) in-waiting. Strategy two is likely to over-invest in the ANC as an electoral machine, that is to conceive of national liberation as essentially a parliamentary task.

Strategy three falls into another statist deviation, it tends to conflate:

  •      mass democratic and sectoral formations (that is, popular formations within civil society);

  •     political party and national liberation structures (structures that are intermediary between civil society and the state); and

  •    future representative and administrative/repressive state structures.
The recent article by Blade Nzimande and Mpume Sikhosana, ("Civil society and democracy")3 epitomises this kind of conflation. It is a conflation in which all three levels are stirred together into one stew and called "organs. of people's power". Of course, all three "levels" do not exist in real life independently of each other. But the fact that they are all dialectical moments within a single social formation is no reason whatsoever to confuse them either organisationally, tactically or strategically.

Unfortunately, as with the other brands of statism, experience suggests that this kind of conflation has a habit of transferring power to a bureaucratic stratum, and not to the people at all.

Not that I believe that we are about to give birth in South Africa to a Stalinist state bureaucracy (as Pallo Jordan seems at times to warn4). A much more real danger lies in the formation of a neo-colonial (of a special type, no doubt) state bureaucratic stratum. This would be a stratum that, pursuing Strategy 1 to its fullest, would use access to state structures and its ability to "deliver" a majority constituency, to negotiate with local white and international capital a place in the sun for its own factional interests. This might well happen, but it is not preordained.

We stand on the threshold of what is potentially a significant transitional process of democratisation.

There are some important factors in our favour. Many of these relate to the semi-peripheral position of South Africa within the world system, and the consequent contradictions that flow from our grossly uneven development. We have a ruling bloc in deep crisis, unable to rule in the old way.

We have, like a number of other semi-peripheral social formations, a large industrial proletariat, which actually constitutes the largest class force in our country.

We have a broad popular movement that has more than 15 years of continuous mass struggle immediately behind it. We have tens of thou-sands of revolutionary cadres developed in this period.

We can throw away our advantages in strategic confusion. We can disarm ourselves. But we certainly do not have to!

Let me end by examining the authenticity of Uhuru and Ruto's so called "patriotic" and "anti-imperialist" credentials.

To begin with, please do not make me laugh out loud.

It is so EMBARRASSING to see  a person who is being represented at the International Criminal Court  defending himself against  serious charges of crimes against humanity by a battery of top notch Queens Counsel legal beagles deign to project himself as an arch enemy of the British Empire.

It is  completely hypocritical to contemplate a Deputy President Elect who LED the campaign against Constitution on a rabid platform laced with homophobic, pro-life and  right wing platitudes  while backed to the hilt by  forces bankrolled by the US evangelical far right  posing as Kenya's incarnation of the recently departed Hugo Chavez breathing fire and brimstone about US Imperialism.

Give me a freaking break!

More immediately, read this excerpt from  two recent magazine and newspaper articles.

Here is the first reading according to the Africa Report:

There is...the expertise of the foreign political lobbying firms that both the leading candidates have hired.

Kenyatta's team picked London-based BTP Advisers after his nephew and chief of staff, Jomo, attended a dinner with Britain's deputy prime minister Nick Clegg.

Both Clegg and finance minister George Osborne extolled the virtues of BTP.

Part of BTP's role was to advise on how to manage foreign criticism of Kenyatta's decision to stand while facing charges at the ICC.

Accordingly, BTP has tapped into a scepticism about the court. Kenyatta and Ruto paint the court, based in The Hague, as the last hurrah of European colonialism.

The irony that this message is crafted by a British lobbying firm is lost in translation.

Here is the second passage by Leela Jacinto writing on a blog platform:

As Kenya’s vote-counting process sputtered, stalled and restarted on manual mode this week, fraying nerves and raising suspicions between rival camps, a top presidential candidate launched a controversial broadside against the international community -- this time, it was Britain.

In a statement released Wednesday, the political coalition led by Uhuru Kenyatta accused the British high commissioner in Nairobi of “shadowy, suspicious and rather animated involvement” in Kenya’s 2013 general election.

Kenyatta and his running mate, William Ruto, are among four Kenyans facing crimes against humanity charges at the International Criminal Court (ICC) for their alleged roles in the 2007-2008 post-electoral violence that killed more than 1,000 people and displaced over 600,000.

In the lead-up to the March 4 poll, the Kenyatta-Ruto campaign has effectively cast international responses to the ICC case as a sign of Western interference in Kenya’s domestic affairs.

So, while the tone of the latest accusations may have startled some observers, the overarching theme of the statement by Kenyatta’s TNA (The National Alliance) party came as no surprise.

“It’s standard TNA-on-message,” said Horn of Africa analyst Abdullahi Halakhe. “They should even have a template for this. It’s been extremely useful on the campaign and it has worked. Is it morally wrong? Yes, it is. But who’s in politics for the morals here?”

But while Kenyatta’s latest salvo was aimed at Britain, his animus against the alleged British involvement in Kenya’s 2013 election runs only skin-deep.

Kenyatta, the son of Kenya’s founding father Jomo Kenyatta, has hired a British PR firm, BTP Advisers, to work on his public image ahead of the ICC trial as well as his election campaign.

In a phone interview with FRANCE24, Mark Pursey, managing partner at BTP Advisers, said the firm had been giving “strategic advice on the election campaign and providing international media relations support since there’s an enormous amount of international interest in this election.”

Pursey however declined to provide details on how much the firm was paid for its services or the time-frame of its contract with Kenyatta.

While Kenya does not have a law requiring candidates to disclose campaign finance figures, local media reports estimate that Kenyatta – whose family ranked 26th on the 2011 Forbes list of Africa’s richest people – has spent 10 billion Kenyan shillings (100 million euros) on his presidential campaign.

‘A bit rich and entirely hypocritical’

The slickness of the Kenyatta campaign was evident in the lead-up to the March 4 election, with TNA rallies featuring the best entertainment acts performing for thousand-strong crowds dressed in the party’s ubiquitous red T-shirts and caps.

While hiring foreign PR companies is not new to Kenyan politics, Kenyatta’s use of a British firm is noteworthy given the campaign’s consistent demonizing of “Western imperialists” interfering in Kenya’s affairs.

“It’s a bit rich and entirely hypocritical,” said a foreign observer who declined to be named -- underlining the sensitivity of this issue in the international community. “I won’t be surprised if the British PR firm is responsible for crafting this statement against the British High Commissioner.”

But few Kenyans are aware of -- or bothered by -- the seeming incongruity of the situation.

“This is a contradiction that nobody wants to expose,” said Halakhe. “A lot of people don’t know this. The campaign has been hammering out a nationalist rhetoric and people have glibly followed this international conspiracy plot without connecting the dots...

When you check out BTP Advisers on on the internet, you find this expose on  this site
 which tell us inter alia that:
George Osborne's former spin doctor is secretly advising a presidential candidate facing war crimes charges for orchestrating ethnic violence in which over 1000 Kenyans were murdered.
Ed Staite, a former Tory adviser, is behind a “highly confidential” media campaign in defence of deputy prime minister Uhuru Kenyatta, one of Kenya’s richest men.
Staite and a team operating from offices in London and Nairobi are trying to neutralise criticism of Kenyatta in the run up to the general election and his war crimes trial which will take place next year...A BTP spokesperson said: “BTP is pleased to provide political campaign and communication advice in an open and transparent way focusing on media training and support to local TNA [Kenyatta’s party] staff who helped to spread the message of unity amongst Kenyans during the by-elections. BTP has not managed Mr Kenyatta's twitter account, social media outreach or provided opposition research. BTP hope these recent elections signify the beginning of a healthy and peaceful debate between TNA, its political opponents and Kenyan citizens in the lead up to elections in 2013.”
Staite said:  “I am happy to say I have provided media and skills training to The National Alliance Party in Kenya during this year. I believe they can be a really positive force in the forthcoming General Election as they are backed by religious and tribal leaders from right across Kenya in a way never seen before.”
This is how the same firm worked for Paul Kagame, one of the regional leaders who has endorsed Uhuru Kenyatta:

 Racepoint stopped working for Rwanda about a year ago, but Rwanda has hired other U.S. and British agencies too. The head of one British agency, BTP Advisers, boasted of setting up an Internet “attack site” where the Rwandan government could target its critics, according to a report last month by the Bureau of Investigative Journalism, an independent non-profit news organization.
“The Rwandan government is obsessed with its image, and it’s very intolerant of criticism of its human-rights record,” says Carina Tertsakian, a senior researcher at Human Rights Watch.

The hiring of U.S. and British agencies is “one more tool” in an aggressive public-relations strategy that is “often quite nasty and personalized,” said Ms. Tertsakian, who has been personally attacked herself on Rwandan government websites.

“It’s worrying. They’re deliberately obscuring information on their human-rights situation. They’re denying human-rights violations, distorting the historical record and peddling false information.”

Thor Halvorssen, president of the New York-based Human Rights Foundation, says too many public-relations agencies are helping African dictators to whitewash their abuses and drown out criticism.

“These companies specialize in burying evidence of human-rights violations deep under rosy language about stability, economic growth and commitments to help the poor,” he said.

And here is how they were caught.

Find out more about this PR from this link.

To give Kenyans a preview how Uhuru Kenyatta and William Ruto will deal with civil society groups and social movements when they come to power, here is  a sneak at a section of the Jubillee Manifesto on page 65:


 The influence of Civil Society has expanded over the years to the point where the various Civil Society groups play an important role in the country’s political and economic development. In the years following the signing of the National Accord, the sector has grown in stature, influencing Government decisions, political culture, and key appointments. We must identify new and innovative ways of working with the sector so that the country can fully benefit from its expertise and experience.


 We believe that NGOs have a valuable role to play in monitoring Government and helping to strengthen the social infrastructure in our country. We shall manage our relationship with the NGO sector in accordance with internationally recognized best practices.


 The Coalition government will:

Introduce a Charities Act to regulate political campaigning by NGOs to ensure that they only campaign on issues that promote their core remit and do not engage in party politics. This will also establish full transparency in funding both for NGOs and individual projects

Establish a Charities Agency to provide an annual budgetary allocation for the NGO Sector

 Promote accountability and coordination between the NGO sector and national and County Governments

 Develop strong partnership with the NGO sector that enhances the country’s development agenda and promotes the interests of the people of Kenya.
 Jubilee's attack hounds  in the media have already pounced on  their favourite targets as can be seen in this March 19, 2013 opinion piece by  James Kimalel. Here is a snippet of  what he is saying:

The following countries and institutions are waging a form of legal warfare — called lawfare — against Kenya’s electoral results and the winning team.

The Open Society Initiative for Eastern Africa, the UK’s DfID; the Embassy of Finland; the Royal Netherlands Embassy in Kenya; German’s GIZ; and UNDP’s Amkeni Wakenya Programme.

They almost wholly fund the Africa Centre for Open Governance (AfriCog), a civil society group that unsuccessfully sued the Independent Electoral and Boundaries Commission (IEBC) to stop the vote tally following the General Election, and now is part of a civil society lawsuit to nullify the results of the presidential poll.

He who pays the piper calls the tune.  Lawfare is the use of the law as a weapon to achieve geostrategic or political ends, and consists of the manipulation of domestic legal systems by State and non-State actors to implement laws inconsistent with the general principles of sovereignty.

The refusal of AfriCog’s funders to congratulate the president-elect, and the “essential contact” statements by European envoys prior to the election, tell the tale.

That tale has to do with Europe’s position on the ICC cases against Mr Uhuru Kenyatta and Mr William Ruto, which is being represented as a principled stand for international law and for the victims of Kenya’s post-election violence in 2008.

That may have been believable in the early days of the ICC but no longer. The African Union and its members, and others in the international community now realise that the ICC may initially have been a well-intentioned attempt to increased human rights accountability globally but, sadly, it is now a form of lawfare against the sovereignty of African countries.

In a world filled with atrocity and the abuse of power by the most powerful — often with Western backing — only Africans have been brought to the ICC dock.

Now with European envoys directly willing to comment to the media about a foreign country’s elections — itself a rare, almost unprecedented happening outside Kenya — it is clear that the ICC cases, whatever their merits, are being used to determine Kenya’s electoral landscape.

Our envoy friends from the UK, France and Switzerland, speaking as they claimed for the EU, and America’s (isolated) Johnnie Carson, extend the historical interference in African affairs.

Since the end of the Cold War, much of the interference has been steered through what in Kenya is called civil society but is actually a movement of privileged local elites fully funded by foreign states.

Many of them issue a vague leftist rhetoric, whose hypocrisy is revealed by the fact that their expensive rents in leafy suburbs are paid for by foreign entities that are the geo-political soldiers of global capital. Not surprisingly, the AfriCog board includes Maina Kiai, John Githongo, Gladwell Otieno, and, formerly, Duncan Okello, who quit to become Chief Justice Mutunga’s chief of staff.

People who pose as warriors for justice and human rights, but who, as can be seen by AfriCog’s funding and actions, are part of a vanguard that, deliberately or not, whether from cynical self-interest or naivety, fronts Western interests in Kenya.

See the AfriCog website ( to see how these principled positions in a Kenyan court are being paid for by foreign interests.

To be a sovereign country is a precious right in a global system of powerful state actors that seek to control their weaker counterparts. Self-rule, independence, non-alignment during the Cold War, and pan-Africanism were what Kenya’s struggle for independence was about.

But Western powers are in the forefront of propping up dictators and then pushing for their deposing through regime change politics and military invasion...
  It should be noted that AFRICOG, headed by Ms. Gladwell Otieno, has filed a petition with the Supreme Court challenging the Presidential results, so James Kimalel is not talking  randomly- he is  part of a coordinated Jubilee fightback.

It is also emerging that Jendayi Frazer, one of Uhuru's self-appointed apologists, is not totally altruistic in her recent interventions in the Kenyan  election politics. See this expose which was obtained under the US's Freedom of Information Act.

Take a peek:

Africa Bureau under Frazer coordinated “recharacterization” of 2007 Kenya Exit Poll showing Odinga win (New Documents–FOIA Series No. 12)

Over the weekend I finally received the first documents from the State Department’s Africa Bureau from my September 2009 Freedom of Information Act request for State Department documents about the 2007 Exit Poll for the Kenyan Election. This is the one funded by the USAID, through the International Republican Institute (IRI) that I managed as East Africa Director for IRI. By letter dated March 5 (the day after the new Kenyan election) but not mailed for another week, the State Department released five documents, while stating that it was withholding one unidentified document in full “because it consists of pre-decisional deliberative process material.”
Long story short:
1) as described by the Embassy, “auxiliary to efforts in this regard by Kenya’s vibrant press, active civil society, and credible, proven electoral commission,” the U.S. government undertook several efforts to “preserve Kenya’s democratic success and contain the prospects of violence and voting irregularities if the presidential election is tight.”
2) one of these efforts was “Public Opinion Polling” described as follows:
* This USAID-funded program seeks to increase the availability of objective and reliable polling data and to provide an independent source of verification of electoral outcomes via exit polls. Implementer: IRI
3) after this same Exit Poll became a source of political contention because it showed the opposition candidate winning rather than the incumbent as named by the “credible, proven electoral commission”–the Africa Bureau engaged in a practice of mischaracterizing the USAID program and the Exit Poll.
For example: when the McClatchy newspapers ran a story on July 9, 2008 by Shashank Bengali reporting that “Kenya’s President Lost Disputed Election, Poll Shows” after the release of the exit poll results by the researchers from The University of California, San Diego at the Center for Strategic and International Studies, the Africa Bureau generated “AF Press Guidance” as follows:
Q: Please provide details on the U.S.-funded exit poll for elections in Kenya. Do we have a comment/reaction to the poll results?
* The International Republican Institute (IRI) provided funding to Strategic as a capacity building exercise for the organization.
* IRI did not have confidence in the results of the poll once they received them due to questions about the methodology, so the results of the poll were never officially released.
* Given the potentially significant nature of the results, however, IRI commissioned an audit of Strategic’s poll results. We have yet to see the results of that audit.
* Our Embassy in Nairobi was not informed by Strategic or IRI of the exit poll results by 3pm on Election Day.
It is simply absurd, as well as false, to suggest that IRI gave money, from USAID, to Strategic, a private Kenyan firm, as a “capacity building exercise” for either Strategic or for IRI, whichever is intended here. No, as described by the State Department before the exit poll became a “hot potato” after Kibaki was serving a second term based on the ECK’s announcement of an alleged election win on his behalf, we paid Strategic for their work “in providing an independent verification of electoral outcomes via exit poll”. They were hired based on proven capacity having conducted the exit polls in 2002 and 2005. I have noted before that the Ambassador claimed this excuse in a March on-line Q-and-A, but this is the first time I see it stated from Washington.
As I have noted, the concern that I was aware of within IRI during the immediate post-election in Nairobi was how people would react to the release of the poll, not about its “methodology”.
The guidance notes that IRI has “commissioned an audit” but doesn’t say when, or whether the State Department has asked to see it. [Note also that an "audit" could not fix the "methodology" of the poll if it had been flawed.  IRI released the poll the next month, in August 2008, the day before the technical consultants from UCSD were to testify about the poll before the Kriegler Commission investigating the election.]
Finally, the statement that the Embassy “was not informed . . . of the exit poll results by 3pm on Election Day” is precious. They were informed of the results at closer to 5pm.
I’m quite curious about the “pre-decisional deliberative process material” that they decline to produce. Were they deliberating about whether to tell the truth about the USAID poll? Does this qualify for exemption?

Here is  a portion of the  AFRICOG  civil society petition:

1.                  THAT the Presidential Election was not free, fair, free from violence, or transparent; it was not administered in an impartial, efficient, accurate or accountable manner; the electoral management system adopted was neither simple, accurate, verifiable, secure, accountable nor transparent; the counting and tallying of votes were neither open, accurately collated nor promptly announced; neither were appropriate structures or mechanisms to eliminate electoral malpractice put in place, including the safe-keeping of electoral materials, contrary to articles 81 and 86 of the Constitution. 
2.                  THAT the cumulative effect of the foregoing is a total violation of Article 38(2) and (3) of the Constitution.
3.                  THAT Article 3 of the Constitution placed an obligation on the 1st and 2nd Respondents to uphold the Constitution and outlaws the establishment of a government in contravention of the Constitution.
4.                  THAT by violating their obligations under Articles 38, 81 and 86 of the Constitution, the 1st and 2nd Respondent have in effect violated Article 3(2) which provides that: -
“Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.”
5.                  THAT the breaches of the constitutional and legal obligations seriously affected the validity, legality and credibility of the election and the results thereof.
6.                  THAT in the Conduct of the Presidential Elections of 2013 the 1st and 2nd Respondent did not observe or uphold the national principles of good governance, integrity, transparency and accountability provided for in Article 10 of the Constitution.
7.                  THAT an accurate, publicly available, verifiable and credible Voter Register is the corner-stone of achieving a free and fair election as contemplated by Articles 38, 81 and 86 of the Constitution of Kenya.
8.                  THAT the 1st Respondent reiterated the above in a Press Release published on the web-site of the 2nd Respondent, in which he said that “establishing and maintaining an accurate and credible Voter Register is a critical component of electoral integrity and the enfranchisement of the people. We cannot talk of free and fair elections if we do not have a credible Register to begin with.”
9.                  THAT the 1st and 2nd Respondents did not meet their obligation under Articles 38(3), 81(d), 83(2), 83(3), 88(4)(a) of the Constitution; sections 3 to 8 of the Elections Act, 2011; and the Elections (Registration of Voters) Regulations, 2012, in the registration of citizens as voters, and in the compilation and certification, and use of the Register of voters
a.      Upon the close of voter registration, the 2nd Respondent published a Provisional Register as at 18th December 2012.
b.      In accordance with section 6 (as amended) of the Elections Act, after inspection, the 2nd Respondent compiled, certified and published the Principal Register of Voters; while the Notice of Certification of Compilation of the Principal Register of Voters was published in the newspapers on 18th February 2013, the Electronic Register was published on the 2nd Respondent’s website on 24th February 2013.
c.       There exist abnormal and unexplained patterns of additions and subtractions of entries in the Register.  The overall result was a net increase in the numbers of registered voters in the overall, national Voter Register.
d.      In verifying a Voter Register as provided by Sections 6 and 7 of the Elections Act, 2012, there cannot be an increase to the total numbers of registered voters. There can, at best, only be transfer of voters from one voting area to another, without a net increase of voters on the overall, national Voter Register.
e.      Before the elections, the 2nd Respondent released to the political parties CD-Roms containing the Register of Voters other than the Principal (Electronic) Register.
f.        There were 15,703 less registered voters on the CD-Rom than on the Principal (Electronic) Register. 
g.      On March 2, 2013, the 2nd Respondent published on its web site a List of Voters without biometrics, amounting to 36,236 new voters. This was well after publication of the Principal Voters Register. There is no plausible legal explanation for an increase of registered voters after publication of the Principal Voters Register. Any such list is unconstitutional and illegal.
h.      On March 9, 2013, the 2nd Respondent announced the results of the presidential election. In announcing these results, there were differences from the Principal (Electronic) Register.
i.        Although the differences in total numbers of registered voters may appear small in some cases, this is evidence that the 2nd Respondent used numbers that do not mirror those in the Principal Voters Register. 
j.        That the Presiding Officers, (Constituency-level) Returning Officers and County Returning Officers in Forms 34, 35 and 36 respectively, were using different numbers of registered voters from that contained in the Principal (Electronic) Register, and between the different elections for President, Governor, Senator, Women’s Representative and Member of the National Assembly.
k.       For instance, the respective Forms 34, 35 and 36 for Makueni Constituency (Number 086), signed by the same person, Mr. Joseph Kamandi Kittony, the County Returning Officer, applied the following different figures for registered voters: -

Elective office
Total Registered Voters applied
Number of registered voters in the Principal (Electronic) Register, in the 2nd Respondent’s web site
Member of National Assembly

l.        The net effect of the anomalies in the Voter Register impugn the accuracy, credibility, accountability, verifiability, integrity, validity, result, outcome and declaration by the 1st and 2nd Respondents of the Presidential Election.
10.              THAT the electronic voter registration, identification and results transmission systems were specifically intended to protect the integrity of the individual vote by preventing multiple voter registration, multiple voting or stuffing of ballots, erroneous tallying or any other irregularities. This was a specific requirement of the Report of the Independent Review Commission on the General Elections held in Kenya on 27th December 2007 (The Kriegler Report.) It was underscored as an essential measure to protect the integrity of the vote and prevent the kind of violence that followed the disputed election result in December 2007. It was, therefore, crucial to the implementation and enforcement of Articles 38, 81 and 86 of the Constitution.
11.              THAT when fully functional, a Biometric Voter Registration (BVR) kit does three things: it provides a fool-proof register of voters; it automatically subtracts from the main national register voters who have voted and thus provides a running tally of total votes cast and is centrally integrated so that multiple voting becomes physically impossible.
12.              THAT none of these features worked on voting day.  First, while the BVR is supposed to be a check against multiple voting, the system did not have a subtractive value, the option that deletes the name of a person who has voted and updates the central server on the total votes cast. If this option had been built into the software and consistently applied, it would have progressively updated the list of voters around the country, and at the close of the voting, it would have been possible to immediately ascertain the exact voter turnout.
13.              THAT a BVR system typically has a national data-base that is also backed up virtually. The data-base should be remotely accessible from the polling stations. In this case it was not. Having failed to do the right thing, the IEBC then resorted to the completely unsatisfactory step of downloading segments of the voter-register to the laptops that were eventually sent to polling stations. But this raises even more questions: what exactly did the IEBC download to the laptops?
14.              THAT, given lack of a link to the central voter database, polling stations would not have been able to subtract those who had voted from the central database. And merely crossing out the name of the voter from the physical register at the polling station guaranteed nothing if more copies of the same register existed. In effect, there was nothing to stop double voting.
15.              THAT the BVR system relied heavily on a steady supply of electricity for the laptops on which the system would be run.  However, in many places no attempt was made to provide backup power beyond the life of the one battery the computer started out on.  In some stations, batteries had died within one hour of the opening of the polling. A majority of polling stations had no electric power and rapidly abandoned the BVR system as the laptops had died due to lack of power.
16.              THAT the 1st and 2nd Respondent did not meet their obligation under Article 86 (a) of the Constitution to ensure that voting and tallying was conducted using a simple system.
a.      During the voter registration exercise, the Biometric Voter Registration Kits were not connected to the national Servers and database of the 2nd Respondent.
b.      The Electronic Voter Identification Devices failed to function during voting.
c.       The electronic transmission of results from the presiding and returning officers failed.

17.              THAT the 1st and 2nd Respondent did not meet their obligation under Article 86 (b) of the Constitution to ensure that voting was conducted in an accurate system.
a.      In many instances, the laptop computers used for the electronic voter identification had not been charged, or could not sustain battery life
b.      The electronic transmission of results failed.
c.       In many instances, the necessary applications (apps) that were to be uploaded on the mobile phones had not been uploaded.
d.      In many instances, the mobile phones that were to be used to transmit the results had not been charged.
e.      In many instances, the mobile phones were unable to communicate with the national Servers and database of the 2nd Respondent.
f.        The electronic transmission of results produced misleading and incorrect tallying of votes.
g.      After the complete failure of the electronic results transmission system, and the consequent resort to manual tallying of the votes, the 1st and 2nd Respondent did not put in place sufficient measures to ensure the accuracy of the vote.
h.      Several instances exist where aggregate totals on Forms 36 are higher than the votes cast.
i.        The 1st and 2nd Respondent failed to put in place appropriate policies, strategies, structures and mechanisms to manage risk, put in place contingency and back-up measures, and, in the event of failure of the electronic components of the electoral system, prevent and eliminate electoral malpractice.
j.        The 1st and 2nd Respondent failed to put in place appropriate policies, strategies, structures and mechanisms for the safekeeping of election materials, of both a physical and electronic form.
k.      In the event of failure of any or all of the electronic components of the electoral system, the 1st and 2nd Respondent were under obligation to recover and restore them.
l.        The 1st and 2nd Respondent had a constitutional obligation, under Article 86(d) of the Constitution to do the above.
m.    The above failures constitute culpable, and indeed, willful negligence.

18.              THAT the 1st and 2nd Respondents did not meet their obligation under Article 86 (a) of the Constitution to ensure that voting was conducted using an accountable and verifiable system.
a.      The 1st and 2nd Respondents failed to carry out the obligation under Article 138 (3)(c) of the Constitution to tally and verify the presidential votes cast in polling stations.
b.      As a result of the failure of the electronic transmission of results there were no provisional results for verification, at the Polling, Constituency, County and national levels.
c.       The 1st and 2nd Respondents excluded party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012, thereby precluding any credible tallying or verification.
d.      The 2nd Respondent ejected party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012.
e.      On failure of the electronic transmission of results the 1st and 2nd Respondents had a constitutional and legal obligation to verify and then tally the presidential votes cast at all polling stations from Form 34.
f.        The Kriegler Report said that it was not possible to conduct any analysis of the December 2007 elections, saying:
“The first reason is that the IREC analysis of tallying etc. in nineteen sample constituencies demonstrates convincingly that there are so many more or less erroneous constituency results…that one cannot rely on any figures from the ECK. “ (Section 6.8)
g.      Similarly, there are so many irregularities on Forms 34, 35 and 36, and the entire electoral process of the 4th March 2013 Presidential Elections, and these irregularities affected the validity, credibility, outcome, results and declaration of the election.
19.              THAT the 1st and 2nd Respondent did not meet their obligation under Article 86 (b) of the Constitution to ensure a secure system of voting.
a.      The electronic transmission of results generated a vote count that maintained a consistent gap between the two leading presidential candidates.  It is scientifically impossible to maintain a consistent gap in results that are being randomly relayed. 
b.      The 1st and 2nd Respondent acknowledged that the electronic transmission of results generated rejected votes that were inaccurate.
20.              THAT the 1st and 2nd Respondent did not meet their obligation under Articles 10, 38 and 86 (a) of the Constitution to ensure that the entire election cycle was conducted in a transparent and participatory manner.
a.      Prior to the actual voting day, various citizens’ agencies sought explanations and assurances from the 1st and 2nd Respondents regarding their readiness and preparedness to deliver a credible, free, fair and transparent election and in most cases no response or assurance was offered.
b.      While the voting was underway, and upon failure of the electronic voter identification systems, there was neither explanation nor assurance to the public, either at the Polling Stations or from the 1st or 2nd Respondents.
c.       There was undue delay in publicly acknowledging the evident failures in the electronic results transmission system. To date there has been no explanation of the reasons for the failure, the steps taken to mitigate, or rectify, the failures or a detailed and credible assurance  
d.      The 1st and 2nd Respondents excluded party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012, thereby precluding any credible tallying or verification.
e.      The 1st and 2nd Respondent ejected party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012.
21.              THAT the 2nd Respondent did not meet its obligations under Article 86 (d) and 201 of the Constitution and Sections 102 and 105 of the Public Procurement and Disposal Act, 2005 to ensure that there were appropriate structures and mechanisms to eliminate electoral malpractices.
a.      The 2nd Respondent awarded the tender for the supply, delivery, installation, configuration, training, testing and commissioning of electronic voter identification devices to an unqualified bidder.
22.              THAT the 1st and 2nd Respondents did not meet their obligation under Article 88 (4) (e) to settle disputes that arose subsequent to the declaration of presidential election results from constituencies.
a.      The 1st and 2nd Respondent ejected party agents and accredited Observers from the National Tallying Center when they drew the attention of the 1st and 2nd Respondents to the irregularities in results from Constituencies, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012.
23.              THAT in light of the fundamental irregularities in the conduct the Presidential elections it cannot be said that it was conducted substantially in accordance with the Constitution, the Elections Act and Regulations,
24.              THAT in auditing an electoral process to determine its validity, this Court will not be dealing with a mathematical puzzle and its task is not just to consider who got the highest number of votes.
25.              THAT in determining whether the fundamental irregularities affected the outcome and results, the Court ought to use both qualitative and quantitative tests.
26.              THAT it is the Petitioners’ case that the grounds raised in the Petition sufficiently challenge the entire electoral process and lead to a conclusion that the process was not accurate, credible, transparent, free, fair or accountable.
27.              THAT it is the Petitioners’ case that in a democratic election the means by which a winner is declared plays a central role. The votes must be verifiable by the paper trail left behind. And it must be demonstrated that there exist favorable circumstances for a fair election and that no person was prejudiced by an act or omission of an election official.
28.              THAT following historical experiences including the post-election violence, which resulted from a failed electoral process in 2007, the people of Kenya gave themselves a new Constitution establishing, among others, this Honorable Supreme Court, which has sui generis and exclusive jurisdiction over disputes arising from Presidential elections.
29.              THAT the people of Kenya do not know, and may never know, what happened to their votes in 2007. The failures of 2007 must never be repeated. The 2010 Constitution was their promise that this will never happen again. It is the solemn responsibility of this Honourable Supreme Court to deliver that promise.
30.              REASONS WHEREFORE the Petitioners pray for the following reliefs:
a.      A DECLARATION that the absence of a credible Principal Voters Register vitiates the validity of the Presidential elections of 4th March 2013.
b.      A DECLARATION that the failure to verify the Presidential votes cast at the Polling Stations vitiates the validity of the Presidential elections thereby rendering it null and void.
c.       A DECLARATION that the proclamation, by the 1st and 2nd Respondents, of the 3rd Respondent as President-elect was invalid, and therefore that the Form 38 Certificate issued to the 3rd Respondent is invalid.
d.      AN ORDER for preservation and production of all Forms 34 and 36 related to the Presidential election.
e.      AN ORDER for preservation of the computer servers and mobile phones used in the Presidential elections, and of the data in them, and their production for independent audit.
f.        AN ORDER for an independent forensic process and systems investigation of the conduct of the Presidential elections by the 2nd Respondent.
g.      AN ORDER that the costs of the Petition be borne by the 1st and 2nd Respondents.
h.      ANY OTHER DECLARATION OR ORDER that the Court may deem fit, in the interests of justice.

 To access the AFRICOG civil society in its entirety, please click on this link.

What has been absolutely disgusting has been the  quite pathetic frenzy of  censorship and self-censorship that the Kenyan media has degenerated to in terms of dealing with the uncomfortable  questions arising  out of the unresolved Presidential election, Under the big rungu of "peace"  journalists have been bleating like meek sheep, pleading with the so called "losers" to  "please concede because  we Kenyans really need peace." This orchestrated corporate  funded propaganda strategy is nothing  but a crass ideological ploy the  forces of impunity in the  status quo to manufacture consent as  Noam Chomsky warned us years ago.

Scholars like Akoko Akech (see his insightful paper,  Covering Elections:  Mainstream Media’s Past Performance and its Implications for the Forthcoming General Election have expressed their disquiet about the nefarious motives of  Kenyan media houses when it comes to covering  electoral contests.

But this nauseating din about "peace" is not a new cacophony. Five years ago I was moved to comment in the  2007 elections to do a rejoinder that was carried by various online publications includling  this Christian site.

Here is a chunk of what I said back then:

 Most Kenyans know that the spontaneous anti-government insurrections were sparked off by the decision of the Electoral Commission of Kenya to steal the Presidential vote at the behest of Mwai Kibaki and his PNU cohorts. We also realize that criminals and tribalists have hijacked these protests to loot and plunder and attack members of specific ethnic groups. One would expect that ANYONE interested in a peaceful solution to the crisis in Kenya would begin with where "rain began to beat us" to quote Chinua Achebe for the billionth time. One would further expect that only a transparent restitution of justice would jump start a sustainable peace and national reconciliation process.

At a minimum, there would have to be some kind of a public acknowledgment that the flawed Presidential election results must be rectified. That seems to be the consensus in Kenya, and judging by media reports, among the public of Uganda, Tanzania, Rwanda and many other African countries. The indictment by the EU observer mission would seem to indicate that the capitals of capital have no doubt in their minds that Kibaki stole the elections. Given the above, one would expect that a "peace process" dubbed "Save Our Country" jumpstarted last night by the main Kenyan media houses who were in the forefront of exposing the anomalies and irregularities would pay attention to the question of justice even as strove to put out all the infernos raging across Kenya.

What has happened instead? A mealy mouthed editorial piece on peace carried simultaneously across different Nairobi media that insults the collective intelligence of Kenyans. Sample this: "Political leaders on both sides must be told in no uncertain terms that they are currently in great danger of losing their credibility in the eyes of Kenyans and the international community because systemic killing of the innocents sweeping Kenya, destruction of the economy and the spread of disaffection throughout the land. No grievance and no cause is worth the innocent blood of Kenyan children. The orgies of looting, burning, rape and wanton, well-orchestrated blood-letting are undermining the moral basis of the politicians' cause..."
-Excerpt from an editorial jointly run in the Daily Nation and Nairobi Star (Thursday, January 03, 2008)

HELLO? Since when did "politicians on both sides" coerce ECK to steal the Presidential vote? The culpability rests solely with President Kibaki. From the fascist diktats of Michuki, Muthaura, Murage and Co. we know that the ODM leadership has NOT had a chance to publicly address their followers and therefore cannot be accused of "orchestrating" or "instigating" anything. Yes, the blood of innocents is flowing freely with mobs setting alight a church full of women and children and targeting innocent wananchi based on their ethnicity and regional origins. But who is talking about the orgy of POLICE and PARA-MILITARY EXTRA-JUDICIAL EXECUTIONS? By yesterday, there were over ONE HUNDRED AND FIFTY BULLET RIDDLED BODIES in the New Nyanza Hospital including corpses of INFANTS. Who shot to death those innocent unarmed civilians? The police have been executing ghetto youth in Kibera, Kawangware and elsewhere. Who employs and commands these killers in uniform?

Reports from Kisumu insist that the Kibaki regime may be using crack NRA troops from neighbouring Uganda to slaughter Kenyan citizens. When I first raised this issue online twenty four hours ago, some were quick to dismiss the very possibility. Today the Nyanza Provincial Police Officer is on the defensive, admitting she is aware of these widespread allegations even as she strenuously denies them. In this regard I must state that I was somewhat disappointed by the public statement released yesterday by Kenyan Nobel Laureate, Wangari Maathai. While I commend her for speaking up and appealing to Kibaki to take charge, I am disappointed that what motivated her was not so much the reality that the whole of Kenya is burning but rather that "her people", the Central Kenyan communities were being targeted. Surely one can make a very strong case that the Luo communities residing in Kisumu, Migori, Homa Bay and elsewhere are being similarly targeted, this time by THE STATE itself.

In fact, in the letters to editors page of the Standard there is this letter from a Kisumu resident of South Asian heritage which says, inter alia: "...The recent riots are not Kisumu riots. Even the killings are State-operated to gain political mileage to discredit ODM's Raila Odinga and his supporters." Mahesh R, Kisumu, p.8. Letter, The Standard, Thursday, January 03, 2008

Raila Odinga has publicly stated that he is ready to meet with international mediator and in fact as I write these lines is meeting with Archbishop Desmond Tutu at Pentagon House. Earlier this morning Amos Kimunya was interviewed by the BBC and he was quoted as saying that the Kibaki regime does NOT see the need for international mediators because they (PNU) can deal with the matter internally- a claim which is mocked by the ongoing protests. The same Kimunya has accused the international observers as being biased towards ODM after the EU team publicly denounced the anomalies in the tallying of the presidential results. President Kufuor of Ghana, the current AU Chairman was scheduled to be in Kenya today, but the Kibaki regime BLOCKED his coming. Are these guys SERIOUS?

Let us go back to the editorials. This is a passage from the Standard's:

"...Employ a reputable international arbiter, NOT to determine who won the presidential poll, but to work out a road-map that will bring Kenya back from the brink and a mutually acceptable proposition for sharing power...Notwithstanding the inflation of figures in a number of areas, both ODM and PNU garnered 4 million plus votes in the presidential ballot, meaning the country is split right down the middle. The position of President is not vacant. Kibaki was declared President whether or not the presidential ballot was flawed..."
-Standard editorial, Thursday, January 03, 2008

It is right in this excerpt that the mask slips to reveal the PNU underbelly of the much ballyhooed "Save Our Country" onslaught. Huh? So we should not "determine who won the presidential poll" eh? How then, dear Standard editors, will we work out a road-map that will bring back Kenya from the brink? Even queasier is the cheesy full page ad by the Concerned Citizens for Peace addressing two men-Mwai Kibaki and Raila Odinga- to do something. The very content of the ad betrays its elitist, undemocratic character.

The 2007 Kenyan civic, parliamentary and presidential polls was a national affair involving MILLIONS of Kenyan citizens. What is happening in Kenya is NOT a PRIVATE FIST FIGHT involving the Othaya and Lang'ata MPs, but rather a NATIONAL CRISIS that has the future of MILLIONS UPON MILLIONS of Kenyan women, children and men at stake. To try and lock out the Kenyan people from an urgent democratic impasse and reduce it to a two man tussle is a grave insult to the Kenyan people. By the way, WHERE is President Kibaki, the apparently "popularly, democratically, and fairly elected leader"?

From the look of things right now one would be forgiven if they thought that Major-General Hussein Ali is the acting Head of State with chief government propagandist Dr. Alfred Mutua as his deputy. In the few times I have seen Kibaki he is holed up at State House flanked with senior military officers giving the distinct impression that he is their hostage. It is now approximately 12:15 as I keyboard these lines and reports on the television indicate that there are ongoing skirmishes between the police and pro-ODM youths along Thika Road, Mbagathi Way, Kibera, Eastlands and the City Centre. In other words, there is a minor uprising in Nairobi and not just the capital but also Kakamega, Bungoma, Mombasa, Kisumu and elsewhere. On December 30th I spoke about Kibaki's Coup. Four days later the presence of police, para-military and military formations underscores my point about the overthrow of democratic rule.

What is actually laughable is the phenomenon of a horde of PNU election losers led by Kibaki down to his deputy Awori and FORMER cabinet ministers Tuju, Kombo, Kituyi, Shakombo etc MASQUERADING as a legitimate "government". Surely, if Kibaki had the mandate that PNU hawks like George Nyamweya claims he has, he should have formed a government by now. He should have by now been addressing his 4.5 million supporters at heavily attended mass rallies by now. Instead, Kibaki skulks stealthily in State House afraid to meet the very Kenyan citizens he claims to lead. Which brings me back to the slogan: "No Justice, No Peace!!" Until we resolve the simple question of who Kenyans actually elected President on December 27, 2007, there WILL BE NO PEACE.

In my considered opinion, the "Save our country campaign" is a slick, dishonest appeal by the pro-Kibaki comprador and petit-bourgeois business elite hoodwinking Kenyans to accept the fraudulent election results and legitimize criminal PNU's civilian coup. Why should Kibaki or Raila share power? At the December 27th elections, Kenyans overwhelming voted for a new government: That government is the Orange Democratic Movement led by its flag bearer, Raila Amolo Odinga. Once again I say:" No justice, no peace! A people united shall never be defeated! An injury to ne is an injury to all!"
 Fortunately, NOT all  Kenyan journalists are spineless. An exception to that invertebrate  bunch of scribes is Clay Muganda, the irreverent,  humourous, laser sharp columnist who comments on everything from food, cricket, automobiles to national politics. Here is a link to his  March 19, 2013 column for the Daily Nation.

This is the part that caught my eye:

You do not have to be an opportunistic foreign journalist to realise that the Kenyan media is not only in bed with the Government, but is also living in a make-believe world where milk and honey flow from diamond-encrusted faucets built by the gods themselves.

The accusations that we numbed ourselves with messages of peace, slept on the job, censored ourselves or preached peace at the expense of justice during the recent elections are neither here nor there. After all most, if not all, of our investments, kith and kin are in this country and we had to employ all means to protect them.

But by numbing ourselves with messages of peace and censoring ourselves, we were just admitting that, ever since the “hostilities” ended in 2008, there has never been peace, that what we have had is just a tinderbox waiting for the smallest spark to explode.

By censoring ourselves, and, by extension, the people, we were conspiring with the Government to hide the fact that, through its lopsided resettlement and compensation schemes, it had failed to foster peace among different communities since the chaos of five years ago.

Instead of being a watchdog, the media has turned into a partner, a collaborator of the Government, a feat which the latter achieved — knowingly or inadvertently — by continuously heaping praises on the former as was witnessed during the recent elections, or with semi-autonomous Government bodies incessantly dishing out awards to the media, so much so that our work is nowadays not for viewers, listeners or readers, but for media awards panelists.

Onyango Oloo
Nairobi, Kenya
Monday, March 18, 2013
9:52 PM (East African Standard Time)



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