About a month to the August 9, 2022 elections, a Kikuyu elder man was ushered in the offices of Enke Ltd, at the Chancery Building, uptown Nairobi, on Valley Road. Enke Ltd is one of the Kenyatta family’s flagship companies.

The man had an appointment with the princely Muhoho Kenyatta, President Uhuru Kenyatta’s younger brother, the behind-the-scenes political schemer and smooth operator, who rarely appears in the media and who, has the ear of the family’s matriarch, the all-powerful Mama Ngina Kenyatta.

The man had gone to discuss among other things the upcoming elections, with special reference to Mt Kenya region. “Let us be candid with the truth”, the man said to Muhoho. “Things have not been okay in the Mt Kenya region…the people of Mt Kenya have been in a very bad mood, in a very long time and all indications show that they will rebel against President Uhuru’s backed coalition, come the general election.”

The flashy office that the man had been let into, had many television sets mounted on the wall. “How do you intend to overturn this anger against the government and more specifically, against the Kenyatta family? Posed the man, to an intently listening and quiet Muhoho. “Whatever you need to do, you need to do it very fast, because time is of the essence and it is not your side.”

A bemused Muhoho possibly couldn’t believe what the man was talking about: Is this what you came here for, to tell me inconsequential stories, the aristocratic second-born son of the most powerful political matriarch in Kenya must have wondered to himself. “So-and-so be calm, and take it easy; I’m not sure you understand Mt Kenya politics and therefore know what you’re talking about,” retorted Muhoho.

“Turn your eyes to the screens,” Muhoho ordered the man, “What do you see? All those screens, what do they show? Do you all see all those blue marked regions? Those are our votes. What do you mean the (Mt Kenya) people are not with us? The mounted screens showed large swathes of Mt Kenya would vote blue, Azimio la Umoja coalition’s colour. The chairman of Azimio is Muhoho’ elder brother, the outgoing President Uhuru.

Azimio’s presidential flagbearer is Raila Amolo Odinga, Uhuru’s erstwhile, fiercest opposition leader, now turned bosom buddy. In the just ended presidential election, Azimio coalition was whitewashed in the Mt Kenya region. So humiliatingly did it perform in the region, that President Uhuru couldn’t even deliver his own Mutomo location, in Kiambu County, to Raila. Martha Karua, Raila’s designated running mate, equally couldn’t persuade her own former Gichugu constituents, leave alone Kirinyaga County as a whole, to rally behind her boss.

Contrary to what Muhoho’s screens were displaying, Mt Kenya voters in the election painted the region so yellow, the colour of the United Democratic Alliance (UDA) and the sponsoring party of the Kenya Kwanza coalition presidential candidate William Ruto, that Azimio losers in the region are still smarting from the defeat. If there is any hue of blue in Mt Kenya region, one must truly look for it, as one would look for a needle in a haystack, to use the hackneyed idiom.

“Those votes you’re talking about are on your screens, on the ground it is a different matter, I’m telling you the votes are yellow and you better listen to me,” replied Muhoho’s guest. “Believe all you want about those virtual votes on the smart screens, the real votes are on the ground and that’s where the battle will be won or lost, not on diagrams posted on the screens.”

Muhoho must have been flustered by his guest’s insistency and matter of fact statements, but he wasn’t going to let a great opportunity pass him without dishing to the senior visitor some nuggets of wisdom. “My dear friend, listen, let me educate you a little bit, because I think you don’t seem to understand these things. We the Kenyattas tell Kikuyus what to do, they follow our commands. This will not be the first time we’ll be doing so. Let that matter rest. We’ll talk after August 9.”

Many eons ago, the Greeks came up with a word for this kind of attitude and behaviour – Hubris. If you like, simply in English idiomatic language, pride that comes before a fall.

At just around the same time Muhoho was having an animated altercation with his guest, President Uhuru also ushered some Kikuyu elders in one of State House’s inner offices. They were part of a large team that had been invited to the pre-independence governor’s mansion on the hill.

Before meeting the large team, Uhuru wanted to have a word with the select elders. “I want you guys to declare the 1969 oath invalid, are we together?” Used to having his way and commanding people around, including men, the age of his avuncular uncle, he wanted an instant answer, like instant coffee.

“That would be all so well,” replied the gentlemen, “But that would involve a cultural process, because de-oathing people as you might well be aware is not a simple matter. We’ve to do it at the (Mukurwe wa Nya Gathanga) shrine. Rituals have to be performed, sacrifices have to be offered…is there time to do this?” Instead of listening to the elders and possibly coming up with a solution, he did what he does best under such circumstances – he snapped and stormed out of the office.

To the Kenyattas, it’s either my way, or the highway. The elders felt humiliated by a younger elder, albeit the president, who, to some of the senior elders, could be their last-born brother. The elders had also wanted to tell the president that all was not well on the ground: the water was salty and therefore undrinkable, but as they came to realise, well, too late in the day, it’s very difficult to engage the Kenyattas.

In February 2022, a mzee friend of mine was summoned by the matriarch nonagenarian Mama Ngina, because she wanted to have a word with him. “We had not spoken for such a long time, I wondered what it is that she wanted from me,” said my septuagenarian friend. After the usual prolonged pleasantries and greetings, the matriarch quickly delved into the subject matter at hand. “So-and-so, why have the Kikuyu people turned against us? Us, being the Kenyatta family.

“Mama Ngina couldn’t understand why a people they have lorded over for 50 years could (suddenly) rebel against the family,” the mzee would later confide in me. “To her, some malevolent forces were inciting the Kikuyus – ‘this is unlike them,’ Mama Ngina averred, do you have a clue what’s going on she asked me.”

The Kenyatta family has treated the Kikuyus like their slaves for so long, they assumed they owned them, said mzee. “The Kikuyus have had grievances for a long time, but the Kenyattas must have assumed, like they always do, that this time they were malingering.” I met the mzee a week after the elections; “now that the shit has hit the fan, the Kenyattas are all flabbergasted.”

Many years back, a central Kenya politician, now a former MP once told me, how one time they were drinking in a members’ only club that was also patronised by some of the Kenyatta family members. Inebriated and dropping his guard down, one of the close-knit relative let it be known that the family considered the Kikuyu people as their serfs.

“We didn’t want to believe what we had heard, I mean, some of us had always suspected what the family thought about the rest of us, but to vocalise it to all and sundry, really was a faux pas,” said the former MP.

So, it is that President Uhuru took to the Kikuyu vernacular airwaves from the precincts of State House, 72 hours to the election, believing that he would, with his wisdom, sway the Mt Kenya people from voting for Ruto and heed his call at the 12th hour and vote for his frenemy Raila.

Soon after the Independent Elections and Boundaries Commission (IEBC) declared Uhuru Kenyatta the winner of the presidential election on 8 April 2013, I was startled to see a call coming in from Gen. Michael Gichangi, the head of Kenya’s National Intelligence Service. I was in New York, having hurriedly left the country a month before the election because of death threats designed to keep me out of the campaign. Gichangi had been my nemesis during the 2007 election crisis, but once the Kibaki-Odinga Grand Coalition government was formed, we would occasionally have candid chats.

Anyway, Gen. Gichangi wanted to know how Raila would respond to the IEBC verdict. I assured him that Raila would do nothing which might lead to public protests. Oh, so he will accept the election result? Gichangi asked. I said no, he will not, he will appeal the verdict in the Supreme Court. There was silence for a moment before he said, “Even if going to the court could lead to protests and unrest? Are you sure you want that again?”

I was stunned. Raila was being asked by one of the most powerful officials in Kenya to forego his right to challenge the presidential election outcome in our Supreme Court that was newly created with the express mandate of determining presidential election disputes. That was done in part to provide breathing room and hope for redress for the losing candidate’s supporters while the three-week period that the court has to deliver judgement would diminish tensions. Indeed our universally hailed 2010 Constitution that created the court owed its promulgation to the violence that erupted immediately after the results of the bitterly disputed 2007 election were announced.

Gen. Gichangi’s suggestion that Raila desist from petitioning the Supreme Court was for me yet another indication of how far we as a country had fallen despite the new constitution, with the state openly flaunting its power by trying to prevent an electoral challenge.

Fast forward to a decade later—to 15 August 2022, when IEBC chairman Wafula Chebukati declared William Ruto the election winner and president-elect. Within a few hours I was doing a very interesting BBC interview until I was blown away by the presenter’s last question:  Was it right for Odinga to challenge and therefore delay the final election result when Kenya was facing profound economic problems that needed urgent attention?

The question was startling, bizarre in fact, because it came not from a state operative but from the democratic world’s best known broadcaster that constantly pushes for greater democracy and for electoral integrity. Would the BBC discourage a lawful challenge by a losing candidate in a Western nation?

It was not lost on me that the British High Commissioner to Kenya, Jane Marriott, was perceived as being partial to Ruto, a claim she publicly rebutted after he was declared president-elect.

Interestingly, the United States has also been seen as being partial in this election. The US embassy twice put out an election-related travel advisory urging Americans to move about with caution. The first advisory, issued on 3 August, was criticized by Kisumu officials for mentioning only their city, the capital of Raila’s region, as being specifically dangerous. The implication was that Raila was expected to lose the election and that violence by his supporters might break out.

On Friday 2 September, a second US advisory went farther and imposed restrictions of movement on US government personnel in Kisumu ahead of Monday’s Supreme Court decision.  

Separately, a US delegation led by Senator Chris Coons came to Nairobi and held talks with president-elect Ruto on security and anti-terror issues, even though it was known that Raila was to petition the Supreme Court and could potentially become president. Such signals from major powers at critical moments have significant impact as they can be read to indicate political preferences.

To come back to Gen. Gichangi’s 2013 suggestion, it seemed much more acceptable than the interventions of the UK and the US. Kenya’s intelligence and security services are the prime protectors of both national security and the continued rule of our entrenched political and economic establishment. This “establishment” has had an unbroken hold on our country for almost 60 years, ruling by hook or by crook—and through regularly rigged elections.

So it is no surprise that every single one of the four elections that followed our first—and only—fair election in 2002 has been deeply tainted by the actions of the electoral commission and other powerful actors. Such unlawful interference seems to have reached a new peak during the current election, judging by the submissions from Raila and other petitioners.

What has made the difference in the significantly increased revelations of illicit actions is that Raila, the long-time insurgent outsider, had joined forces with President Uhuru Kenyatta. Once seen as a poster child of extreme wealth and leader of the Kikuyu elite, Uhuru has adopted a reformist stance and was committed to neutralizing Kenya’s powerful election subverters (the “deep state”). He has also been preaching a strong multi-ethnic message of inclusion and, at political risk to himself, has repeatedly declared that presidents cannot continue to emanate from only two communities (his own and Ruto’s) for nearly 60 years, while at the same time expecting all Kenyans to feel that they are part of one nation.

So for the first time, the police service uncovered a number of rigging schemes, the most visible being their arrest of the three Venezuelan citizens who were in possession of IEBC election materials that they should not have been in possession of. Chairman Chebukati claimed that he had hired the three as IT specialists but could produce no evidence of such hiring. The police service also produced its own detailed forensic audit of the election tally that has helped identify problematic counts.

At the Supreme Court hearing of the petition, what stood out was Chief Justice Martha Koome’s skilful handling of the complex proceedings, comfortably asserting her authority and mastery of the law, as well as her decisive rulings. She also demonstrated collegiality and respect for the autonomy of the other Justices. I recall the difficulties she faced from what was a moderate vetting group who thought she rooted too much for women! How her mastery has grown—and now both top posts at the judiciary are held by women! This is among the many remarkable achievements Kenyans have been recognized for globally.

Raila had a strong petition, presented by his team of eminent and highly experienced lawyers who have long supported his democratic politics. Other petitioners’ lawyers added significant value to the case as well.

We have no idea if the Supreme Court will find the numerous allegedly unlawful actions to have decisively refuted Chebukati’s declaration of Ruto as president-elect. But the verdict that will be delivered on Monday will have a high degree of credibility. There is intense anticipation and excitement over the possibility that the Supreme Court ruling will be historic. We will know Monday.

The Supreme Court verdict does not, of course, automatically put an end to legal wrangles. In 2017, Raila’s petition led to the election being annulled by the court for “irregularities and illegalities”. It was a stunning verdict, the first ever in Africa. A re-run was ordered—but it was to be conducted by the same electoral commission that had committed the irregularities and illegalities!

Raila refused to run, and Uhuru Kenyatta and his deputy William Ruto were re-elected. The famed “Handshake” between Raila and the president took place the following year, in 2018, designed to overcome decades of political turbulence with a much more inclusive and collaborative model to unite the country. The last four years have seen a significant easing of historical political tensions, but there have been quite a few hitches too.

There is intense anticipation and excitement over the possibility that the Supreme Court will uphold Raila’s petition, which would be a huge boost for democracy and electoral participation.

So, if the justices accept the petitions, how will they propose to move forward? Clearly, Chebukati and his team cannot be entrusted with any responsibilities. Moreover, there is the question whether the 60-day constitutional limit within which the next election must take place can be amended through special constitutional measures.

Time has been a huge constraint in every petition. In 2013, a substantial chunk of Raila’s petition was disallowed by Willy Mutunga’s court for having been filed late. In many countries, there is a much longer lag between the election and assumption of office. In the US, it is over 75 days. In some countries it is four months. It is time to review the Supreme Court’s intense electoral experience over its decade-plus existence to see what lessons have been learned.

The rigging of four elections in a row is a shameful stain not just on the electoral machinery and the election officials but also for our nation and its many institutions. With election after election providing evidence of irregularities and illegalities at a minimum, faith in our democracy has been slowly dying. As observed, the turnout on 9 August was dramatically down, to about 65 per cent. It was 85 percent in 2013. 

It is extremely ironic that the only fair presidential election ever held in independent Kenya took place in 2002 under the highly anti-democratic autocrat, President Daniel arap Moi. He had served his second and final term under the constitution but his anointed successor, Uhuru Kenyatta, lost to an unprecedented cross-national opposition— the National Rainbow Coalition (NARC) led jointly by Mwai Kibaki and Raila Odinga.

(There is a widely mistaken notion that the 1963 election was the first fair election held in independent Kenya; it was held in May of that year under colonial rule).

Electoral misdeeds are an extension of the rampant, massive corruption and theft that is literally killing Kenyans as the wealth of the country is siphoned off by the growing number of shilling billionaires. This is nothing less than the taking of food from the mouths of babes by those who have already made fortunes but show no sign of being sated!

With election after election rigged, faith in democracy was dying in Kenya. The turnout on 9 August was dramatically down, to 65 per cent at most, compared to 85 per cent in 2013.

This is grand corruption at its worst, very deeply entrenched and seemingly uncontrollable. Ironically, it is that vast pot of corruption gold that makes Kenya’s winner-take-all results of presidential and other polls so very desirable for those seeking riches and power. For some, even assassinations are part of their toolkit for success.

In the 2017 election, Chris Msando, the IEBC’s chief ICT officer responsible for ensuring the integrity of the election, was murdered just before the election. An incorruptible civil servant, he had assured Kenyans in a television interview that only he had the necessary electronic passwords and that the election would be fairly tallied. Photographs of his mutilated body were published, sending a clear message to those who might want to be brave.

Roselyn Akombe, an IEBC commissioner who was on sabbatical from the United Nations, resigned soon after and fled the country during the rerun of the presidential poll. Akombe had received many death threats and, alluding to Msando, said “You’d be suicidal to think that nothing will happen to you.”

In the current election, the Returning Officer for Nairobi’s Embakasi East Constituency, Daniel Musyoka, was whisked away after he briefly stepped out of his office; his body was found 150 miles away. The media has hardly probed into this awful killing by those who want to sway elections without having worked hard to win votes. If we did not enjoy close ties with the West, we would be pariah nation.

Assassinations of election officials occur because that tool has been used as a matter of course since right after independence. Elections are in fact a microcosm of all the horrors that afflict our nation. Kenya has had more political murders of potential future leaders—including renowned ones who were not part of the inner sanctum of power—than any other democratic country in the world. Fortunately there have been none in the last few years.

Kenya’s elections per capita are just about the most expensive in the world, costing a remarkable one third of a billion dollars each time. The electoral commission basically gets what it wants as Kenyans are willing to pay whatever it takes to have a secure, honest election. What they invariably get is the opposite.

The electoral commission engaged in rigging the last four elections. But the current one became much harder to pull off when Raila, the long-time insurgent, joined forces with President Uhuru Kenyatta.

From 2007 onwards, Raila Odinga has been the petitioner in all the four deeply tainted elections. He is indisputably the only presidential aspirant who has fought for real, pro-people change in the last 25 years, having earlier made major sacrifices including nine years as a political prisoner. But he rarely, if ever, speaks about any of the profound traumas that have been visited upon him and his family.

Like some credible independent analysts, I am convinced that Raila won the 2007, 2013 and 2017 elections. But not only has he kept going without a hint of bitterness, he has remained a larger-than-life figure, returning again and again to fight for a better Kenya.

And yet Raila is routinely referred to as the candidate who never accepts defeat. He has lost narrowly in the last four elections, and with regards to 2007 and 2017 (when the election results were annulled by the Supreme Court), there is consensus that he did not lose those elections. Did he lose the August 9 2022 polls? We will know Monday.

Because he is the only presidential candidate who fights for pro-people change and is immensely popular because of it, Raila is naturally the target of all the other major candidates, none of whom have reformist credentials. He is also the target of some foreign countries too.

The most vivid example of international anti-Raila animus came after the 2017 election, when former Secretary of State John Kerry, the senior-most US observer in Kenya representing the Carter Center, noted “Election day voting and counting processes had functioned smoothly with only isolated instances of procedural irregularities [which] did not appear to affect the integrity of those processes.” To make sure that his message was clear, Kerry publicly asked the “losing” candidate, Raila Odinga, to “move on”.

As we know, the Supreme Court annulled that election. Kerry was forced to publish an op-ed in the New York Times to camouflage his blunder. This episode again confirmed that foreign observers have no clue about whether an election has been free and fair. They mainly go by how voting day went, which in Kenya is invariably peacefully. But a peaceful election does not a fair election make. Africa needs to review the observer system from the ground up; and certainly, observers should specifically indicate what particular elements they looked at in their assessment.

The international media’s perception of Raila fails to reflect his commitment to reforms and change. To give a more current example than the interview mentioned above, a recent BBC article explored whether “results sheets were altered as Odinga claims?” “We’ve compared images of the original results sheets from these polling stations with those registered on the electoral commission website” it wrote. “In every case the results from the polling stations matched the official tallies published by the electoral commission.”

To have honest elections, it is not just the electoral machinery but Kenya itself that will have to change.

Given the BBC’s reputation and reach, people around the world will take this to mean that charges of fraud by the Raila team do not have a lot of credibility. But Prof. Walter Mebane, a renowned election expert at the University of Michigan, extensively studied this election’s results and found significant fraud, indicating however that the polling stations the BBC studied had revealed very low or no fraud.

The New York Times also shows a strong anti-Raila bias. Right after William Ruto was declared president-elect last month, the paper published a lengthy article portraying Raila as a leader who had lost even his hold on his ethnic base, quoting five of Raila’s kinsmen and Nic Cheeseman, a British scholar, to back its claims. The authors seemingly could not find a single voice with a differing perspective of Raila!

In a second article, the New York Times went harder at Raila. Prof Cheeseman now equated him to Donald Trump after the latter lost the 2020 election: “Misinformation, one side making wild accusations to excuse defeat, and a significant number of people who believe their candidate didn’t lose — it’s very Trumpian,” he said.

The article, titled In Kenyan Elections, the People Decide First. Then Come the Judges, asserted that “his legal team appear to have taken a kitchen sink approach, making a wide range of charges that, analysts say, range from the plausible to the outlandish.”  The article goes on to mention “vicious personal attacks directed at the same electoral commission chairman who only recently was being praised for a polling process seen by many as a model for Africa, and beyond.”

I would like to mention that I have never heard anyone describe Chebukati in terms remotely approaching such hagiography. In 2017, it was he and his commission who were blamed by the Supreme Court for the “irregularities and illegalities” that led to the election’s annulment.

I think most readers will get the idea of what the New York Times thinks of Raila’s election petition. This is a man who at a minimum came close to winning the last four presidential elections. You would never realize that from reading any of these articles.

To avoid any misunderstanding, I should mention that I am not remotely implying that Raila cannot be criticized or his political weaknesses pointed out. I am a media person myself and I criticize people regularly. But unless I am writing about a recognized pariah, I avoid demonization and try to find a bit of balance.

We look forward to Monday’s decision by the Supreme Court on the petition filed by Raila. Whatever the decision, one can say that an awful lot of electoral re-thinking is urgently needed.

I can also say we will never have free and fair elections as long as corruption is not curbed, and addressing the extreme inequality and mass deprivation that are now part of Kenyan life becomes the nation’s most urgent priority.

A President Raila Amolo Odinga is what we need to get this clean-up process started. I very much hope the Supreme Court upholds his petition.

The Independent Electoral and Boundaries Commission (IEBC) sent shock waves across the country when different commissioners gave inconsistent positions on the credibility of the recent presidential election. Kenya is no stranger to public drama by IEBC Commissioners. In 2017, an IEBC Commissioner resigned ahead of a re-run of the presidential election and fled to the US. Then followed the resignation of three commissioners alleging the improper removal of the CEO and claiming lack of faith in the IEBC chairperson’s leadership.

Once again, and just as the IEBC chairperson was announcing the presidential election on 15 August 2022, four commissioners rushed to Serena Hotel to issue a presser disowning the results for what they termed as the “opaque” manner in which the results have been handled. Counteraccusations ensued, with the IEBC chairperson accusing the commissioners of attempting to “moderate results”, an allegation that they vehemently opposed. At the core of this IEBC circus is whether commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion has been divided over the role of the IEBC commissioners in the conduct of the presidential election but what many pundits have ignored is the role and structure of the IEBC, as part of the independent commissions, which might shed light on the commissioners’ role in the presidential election.

This piece argues that a holistic reading of the constitution on the conduct of the presidential election reveals that the IEBC, including the commissioners, should be involved in all stages of the election. To prove this, it makes three arguments. First, Article 138(3) (e) of the constitution enshrines the role of the IEBC as a body in the conduct of presidential elections. Second, the jurisprudence on the running of the business of the IEBC provides for the centrality of the commissioners as the “linchpin of the Commission”. Third, the architecture of the independent commissions as watchdogs of democracy ingrains internal checks and balances and disfavours limitless powers of an individual or of one arm of the commission. Lastly, the paper debunks the analogization of the role of the IEBC and chairperson and returning officers. It offers three reasons why the parallelism of the two positions commits the logical fallacy of false analogy or false equivalence.

This article proceeds on the assumption that the IEBC chairperson exercised the role of the national returning officers to the exclusion of other commissioners. It is informed by the chairperson’s statement released on 17 August 2022, where the chairperson quotes the role of returning officers as being to tally, verify, and announce results. He concludes, “The role of the National Returning Officer for Presidential Election is not shared responsibility and not subject to Plenary decision of the Commission.” The paper argues that the chairperson of the IEBC has failed to examine his role in the context of the entire constitutional provisions on the conduct of the presidential election and operations of the commission.

While the failure to involve the commissioners raises an important question, this piece observes that it is not enough to overturn the election. Beyond demonstrating the lack of participation of the commissioners, it must be shown that there is a “substantial effect” on the integrity of the election as a whole.

Role of IEBC chairperson vis-à-vis the other commissioners in the conduct of the presidential election

As in any other election, in the presidential election, under Article 86 (c) of the Constitution, the IEBC is required to ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer. This generic provision lays out the oversight role of the IEBC in the conduct of the election. Public discourse over the election has been engrossed in the question of the exact duty of the commissioners in the conduct of the presidential election. Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”. Others have argued that the law only requires the IEBC commissioners to vote only on the business of the commission, and the presidential election is not a business of the commission.

While the arguments on the commissioners’ role and the perception of subversion of the will of the people raise an essential question, these contentions fail to address the broader context of the presidential election. The presidential election requires a heightened oversight because of its importance and critical nature in Kenyan society. This part considers the constitutional provisions which give the commissioners a general oversight role, including verification of forms 34A and 34B to determine their accuracy.

Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”.

It is crucial to first clarify that this debate is not about the quorum of the IEBC. The quorum of the IEBC has been used to conflate it with the debate on the role of the commissioners in the presidential election. However, the question of the role of commissioners is distinct from the question of quorum. Quorum addresses the question of whether there are enough commissioners to transact business, an issue that was settled in the BBI case. The pertinent issue in the current discourse is the role of commissioners since they were present but did not participate for lack of a part to play in the process. For quorum to be an issue, all commissioners should have received a notice to attend the plenary, but only the minimum number availed themselves.

The structure of independent commissions as commission-centric 

A holistic reading of the constitution on the nature of the independent commissions reveals the integral role that commissioners play in overseeing the implementation of a commission’s functions. In this part, I argue that most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically. Specifically, they fail to examine the structure and functioning of the independent commissions, including the IEBC. An isolationist and narrow reading of Article 138 (10) of the constitution on the role of the IEBC chairperson will lead to an erroneous conclusion that the IEBC chairperson collates, tallies, and verifies forms 34A and 34B received from the polling stations. This piece cautions against drawing hasty conclusions regarding the role of the IEBC chairperson from reading a single article of the constitution.

Chapter 15 of the constitution provides for the architecture of the independent commissions. Article 249 of the constitution decrees the object of these bodies as the protection of sovereignty, and promoting democracy and constitutionalism. The commission’s composition and nature are listed in Articles 250 and 253 of the constitution, and it is stated to be a corporate body. The commission as a body functions in a manner that guarantees internal accountability, as depicted by the uneven number of commissioners and the insistence that the existence of the commission depends on the existence of commissioners.

Most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically.

Kenyan courts have discussed the place of commissioners in relation to the secretariat. A close look at some of the foundational cases on independent commissions will shed light on the relationship between the chairperson of the IEBC and commissioners as a body. One typical running theme is that the commissioners are the linchpin of the commission, and no duty is beyond the commissioners’ oversight since they are the nub of the commission. This argument does not mean they have unfettered powers—even to the extent of changing election results—but they can oversee and note mistakes on the report to be submitted to the Chief Justice.

At the centre of their function is policymaking for implementation by the secretariat, and oversight. The rationale for the emphasis on the centrality of commissioners is that they are responsible for realizing the mandate of the IEBC as an enabler of democracy and a guarantee of the right to self-determination. The secretariat assists the commission in the discharge of its mandate. Court decisions on the relationship between the secretariat and the commissioners reveal the vital place of commissioners in discharging the commission’s mandate. In the Constitutional Application N° 2 of 2011, the court was emphatic that “the several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and perform this role effectively”.

Courts in Kenya have termed the existence of commissioners as a foundation for the powers of the secretariat. The implication is that for a commission to exist properly, it must have commissioners; from there, all other functions flow. Ordinarily, the outcome of the functioning of the secretariat should be ratified by the commissioners of the IEBC. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission and 4 others 2017, the court stated,

“The Secretary and the Secretariat can only carry out the powers vested in their offices when the Commission exercises its powers since they implement what the Commission has resolved. The Commissioners must ratify the outcome of the tasks undertaken by the Commission’s staff if they are to be deemed as the decisions of the Commission” (Emphasis mine).

Therefore, given the central position of the commissioners in the conduct of all functions of the IEBC, they cannot be excluded from an essential role in the national conduct of the presidential election. Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners. Therefore, officials such as returning officers assist the commissioners in conducting the election at the lower levels. It is illogical to argue that returning officers can exclude the commissioners from oversighting the elections they are conducting.

Misuse of the tag of national returning officer

The general posture of the Kenyan constitution is that it adopts a pessimistic outlook on those who wield power. This position of the constitution informs the distribution of duties among various parts of the IEBC. Here, I will argue first that Article 138(3) (c) of the constitution provides for the general task of the IEBC as a body, the chairperson’s role being limited to the announcement of the presidential election results under Article 138 (10) of the constitution. Second, I will contend that the constitution does not eliminate the oversight role of commissioners regarding the presidential election. Third, the constitution is aversive to an individual exercising monopoly of power. Put differently, the constitution favours the distribution of powers, oversight, and internal checks and balances. Lastly, I will deflate the false analogies of equating the chairperson of the IEBC in the conduct of the presidential election with other returning officers. I will argue that it is a simplistic view of the conduct of the presidential election.

As a body the IEBC has the role of the conducting of the presidential election. Article 138 (3)(c) of the constitution provides that in the presidential election, the IEBC shall tally, verify, and declare the results after counting the votes in the polling stations. This role is given to the commission as a body to be discharged by its employees with the commissioners’ oversight. At the national level, the IEBC verifies and tabulates forms 34As and 34Bs to generate form 34C. All commissioners have a right to be involved in the tabulations in the exercise of their oversight role over the employees of the IEBC.

Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners.

Unlike Article 138(3)(c), which provides for the general role of the IEBC, Article 138(10)(a) of the constitution provides that the chairperson of the IEBC shall declare the results of the presidential election. The implication of this is that the role of the chairperson is exclusive in so far as the declaration of the presidential result is concerned. The chairperson does not single-handedly oversee the secretariat in the generation of form 34C, which contains the collated presidential election results. Additionally, the commissioners have a role under Article 86 of the constitution to ensure that results are accurately collated and announced by returning officers. In this case, and for argument’s sake, even if we equate the chairperson to the returning officers who announce the results, the commissioners will have an oversight role over him on how the national total results are arrived at. This oversight will ensure that the chairperson of the IEBC is accountable to the commission in the conduct of such an important role. The Court of Appeal in Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy and 2 others 2017 held that the commissioners formulate strategy and oversight IEBC employees and the commission’s functions, meaning that the tabulation of results in the forms was subject to the supervision of the commissioners.

To counter the above arguments on the commissioners’ involvement, some people have argued that commissioners are not required to oversee other elections before various returning officers announce them. This argument fails to consider the unique nature of the presidential election in our constitutional design. Of course, all polls are unique, and in substance, they are supposed to adhere to the same constitutional principles. However, due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee electoral integrity. Because of Kenya’s history in the presidential election, the constitution requires heightened oversight at all election levels, especially the final national tabulations.

The other counterargument offered is that the IEBC chairperson exercises the powers of a returning officer, which are individualized duties not subject to the plenary powers of the commission. To answer this claim, I make three arguments. First, the characterization of the role of the chairperson of the IEBC as a presidential returning officer does not mean that the commissioners are excluded from oversight of the national tallying of the presidential election. Put differently, the characterization should not affect examining the exact constitutional dynamics between commissioners. Thus, the commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.

Due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee election integrity.

Secondly, while the role of the IEBC chairperson has a similarity with that of the returning officers of other elections, they are not the same. Under section 38 of the Election Act, the returning officer is responsible for conducting the election. Further, section 39(1A) of the Election Act provides that the returning officer is responsible for tallying, collating, and announcing the election results. In contrast, Article 138(3)(c) of the constitution provides that the responsibility of conducting the presidential election lies with the IEBC. While the chairperson of the IEBC exercises specific duties similar to those of IEBC returning officers, the constitution explicitly adopts the language of the IEBC as a body when addressing the specific electoral duties such as counting, verifying, and tabulating the presidential election. Contrasting Article 138(3)(c) of the constitution with Article 138(10)(a) of the constitution, which provides that the IEBC chairperson shall announce the presidential election, demonstrates that he exercises constricted powers. When it comes to the announcement of the results of the presidential election, Article 138 (10)(a) of the constitution drops the language of the commission and specifically identifies the chairperson as the individual with the role of declaring the aggregated results. Therefore, if the constitution wished the chairperson to singlehandedly exercise the role laid out in Article 138(3)(c) of the constitution, it would have included it in Article 138(10) of the constitution or in any other part that exclusively addresses the duties of the chairperson of IEBC.

Thirdly, the involvement of the chairperson of the IEBC in announcing the presidential election demonstrates a constitutional intention of engaging the highest levels of the commission in the national tabulations of results and declarations. The functions listed under Article 138 (3)(c) of the constitution, especially the national tabulation of results, involve the highest organs of the IEBC. The rationale for this involvement of the highest organs of the commission is not hard to discern, owing to the perennial controversy surrounding the presidential election in Kenya. The commissioners are selected with a unique obligation of securing democracy, and what other level epitomizes this democracy if not the presidential election? The stakes in the presidential elections are very high in Kenya, and it would be barmy not to involve the entire commission or vest the national level powers only in the chairperson of the IEBC. Granting the IEBC chairperson the exclusive role of the presidential election returning officer to the exclusion of the commissioners has no serious constitutional value. With regards to the manipulation of results, the presumption should be that the more transparency and involvement, the less likely it is for them to be changed.

Relevance of the Maina Kiai case 

The import of the case of Maina Kiai on the powers of the chairperson of the IEBC has caused considerable controversy in the country. Some have argued that the Kiai case addressed the issue of whether the chairperson can change the results declared at the polling station. Others have argued that Kiai’s statement on the powers of the IEBC chairperson was an obiter dictum. This part seeks to answer these questions and make the fourth argument why the commissioners of the IEBC should have been involved in the conduct of the presidential election.

The answer to the concerns raised regarding the relevance of Kiai on the discourse on the role of commissioners is both “yes” and “no” because the case touches on the role of the chairperson of the IEBC and yet not in the manner in which the four commissioners cite it. On the one hand, the Kiai decision is relevant to the extent that it indicates the scope and nature of the role of the chairperson of the IEBC. Although not exactly dealing with the current crisis, it elucidates the role of the chairperson of the IEBC in the conduct of the presidential election. On the other hand, the Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election. The implication is that when the court is discussing the limitation of the powers of the chairperson of the IEBC, it is doing so in the context of whether the chair can alter the results announced at the polling level. Nevertheless, the Kiai case sheds light on the nature of the powers of the chairperson of the IEBC. From Kiai’s case, it is clear that the chairperson exercises limited powers, and the constitution disfavours the chairperson from having exclusive powers in the presidential election other than the announcement of the collated results.

The commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.

The constitution disrelishes the concentration of powers on one individual in the conduct of an important election such as the presidential one. This is to ensure an effective discharge of the role of the IEBC as the safeguard of democracy and the right to self-determination. The nature of the independent commissions as having embedded checks and balances was articulated by the Supreme Court in the matter of the National Land Commission (2015). The court believed that checks and balances were the mainsprings of accountability. It stated that “the spirit and vision behind the separation of powers are that there be checks and balances and that no single person or institution should have a monopoly of all powers.”

The commissioners provide a heightened level of oversight and verification, which means that the chairperson cannot act unilaterally in the tabulation of forms 34A and 34B. It is illegitimate for the chairperson to conduct the presidential election in an exclusionary way, especially the generation of form 34C without the involvement of other commissioners. This conduct goes against the rationale of the independent commissions, which is to be the people’s watchdog for democracy. The Court of Appeal captured this position in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017):

“To suggest that some law empowers the appellant’s Chairperson, as an individual, to correct, vary, confirm, alter, modify, or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power . . . We reiterate, as we conclude that there is no doubt from the architecture of the laws, we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the appellant.” (Emphasis mine.)

In sum, while the Kiai case did not directly deal with the role of the commissioners and chairperson, the obiter indicates the limited powers of the IEBC chairperson. The court in Kiai’s case reinforced the need for a limited role of the chairperson of the IEBC in line with Article 138(10) (a) of the constitution. Thus, to ensure the IEBC’s accountability and checks and balances, it is constitutionally absurd to exclude commissioners from verifying the presidential election.

Failure to include the commissioners must substantially affect the election

Overturning an election should not be an easy task for any petitioner. This is because the election represents the people’s will, and the courts should be slow in overturning the people’s expressed will without clear and convincing evidence. There is also a presumption that the actions undertaken by government officials are legal unless they are impeached by evidence. The other concern is that elections are expensive, and for a developing country like Kenya, economic realities should be balanced with constitutional purity.

Globally, no election is perfect, so normal errors do not suffice to overturn an election. The core question is whether the errors or irregularities are substantial enough to overturn an election. Section 83 of the Election Act provides that non-compliance with the constitution and the law must substantially affect the election. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others (2017), the court held that trivial irregularities are not enough to overturn an election, and the error must have a substantial effect on the election. Further, the court noted that the election should be looked at as a whole to determine whether the constitution has been substantially breached.

The Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election.

The failure to involve commissioners in generating form 34C should not automatically invalidate the election. The constitution does not adopt a purist approach to the election. Instead, all mistakes must substantially affect the integrity of the election. A presidential election is a highly regulated process. If it is proved that the results in forms 34As and 34Bs were collated adequately at the national level, the non-involvement of the commissioner will not rise to the “substantial effect” level.

However, if it were to be demonstrated that the failure to include the commissioners led to unverified results, which have numerous mistakes, then the non-involvement would have substantially affected the election. The errors would not be characterized as “harmless errors” because they would have a tangible effect on the election’s credibility. The commission as a body would have failed to realize its mandate of conducting a free and fair election as enshrined in Article 86 (c) of the constitution. Thus, the commissioners’ oversight role in the conduct of the presidential election would be unconstitutionally impeded, leading to the unverifiable and inaccurate collation of results at the national level.

To conclude, a hasty and exclusive reading of Article 138(10)(a) of the constitution would lead to the erroneous conclusion that only the chairperson of the IEBC has the role of tallying, verifying, and declaring presidential results in forms 34A and 34B. However, a holistic reading of the constitution and jurisprudence on the structure and the functioning of the IEBC demonstrates that commissioners should be involved in generating forms 34C for the presidential election.