Case of Sovereign People of Kenya Against Independent Electoral and Electoral Commission (IEBC)

1. Prosperity of the country is directly linked to well functioning, accountable and democratic institutions. Independent Electoral and Boundaries Commission (IEBC) does not meet measure to this threshold. It is major source of uncertainty and conflict. IEBC has no heritage of rights. It exists to the service of the people of Kenya. It derives its legitimacy and authority from the people.

2. Independent Electoral and Boundaries Commission has full constitutional powers, authority and control on all maters touching on elections and referenda. It has constitutional functional autonomy and insulation to ensure it meets high degree of integrity, credibility, transparency and accountability in its electoral management work in accordance with the recommendations of the Krigler Commission and Constitution.

3. The IEBC falls under widespread Independent model of electoral management bodies. It is neither government nor hybrid. It has to exercise and enforce its fearless structural, operational and funding independence to avoid influence and or interference. It must uphold and posses a culture and attitude which promotes integrity. In reference to the 2013 General Elections, IEBC operated outside this stipulated constitutional framework that created it; and that it grossly contravened laws and regulations that govern it and its operations.

There exists the following solid evidence and reasons why IEBC currently constituted is untenable;

i. There exists overwhelming evidence that IEBC had a predetermined 2 Million votes(for far unaccounted for) that it used to electronically manipulate and subvert the popular will of the people and influence the outcome for the Presidential elections in 2013. The evidence clearly shows the figure was used to cover up the predetermined outcome. This is patently revealed when votes between 12.2 M presidential votes against the average 10.2 Votes casted for Governors, Senators, and Women Representative.

ii. IEBC had a tailor made computer programming system that subtracted and or added these 2 Million votes in order to systematically achieve the already intended presidential outcome without raising initial suspicion. Samples exist in a number of Counties.

iii. IEBC commissioners and staff did not only procure obsolete elections’ equipments but also awarded tenders and contracts to suppliers without following the laws and regulations procedures. The tendering, evaluation, verification and due diligence were never done in accordance with the law leading to purchase of substandard and faulty equipments at highly inflated costs. Some suppliers were paid for no work done or nay supplies.

According to Auditor General June special report 2014, “there was no evidence that the procurement plans for 2011/2012 and 2012/2013 were approved by the IEBC management”. In addition, the tender opening records were only signed by the Chairman and Secretary, while the tender opening Committee opened financial proposals and technical proposals at the same time, which is contrary to Public Procurement and Disposal Act and Regulations.

It is also established that Ministry of Foreign Affairs after conducting preliminary due diligence wrote to IEBC recommending ‘strongly’ that IEBC should not enter into any contract with 4G Solutions. Despite this recommendation, IEBC proceeded to nominate six member committee to visit India. The Auditor General Special Audit report of June 2014 goes into details of gross violations of the Public Procurement and Disposals Act and Regulations by the IEBC. This can only leaqd to one conclusion: tendering and procurement processes of 2013 General Elections materials and equipments were irredeemably corrupt with full connivance of the Commissioners and secretariat staff. There is substantial report evidence that IEBC Commissioners working together with certain staff members influenced procurements, tendering and distribution of voting kits in a certain pattern .

iv. IEBC deliberately delayed and mismanaged the process of sending Biometric Voters Registration (BVR) kits and Electronic Voters Identification Devices (RVID) specifications within the set timelines to intentionally create avenue for costly government to government single sourcing procurement where one of the interested parties( set ground fro government to government procurement for BVR) attended the Commission’s decision-making meeting with invitation of the IEBC Chairman. This costed taxpayers unnecessary KShs.4B. It is on record form Auditor General report that Attorney General was against the Government to Government procurement arrangement citing breach of the Public Procurement laws. The Auditor General conclusion was that “no evidence that the BVR procurement complied with the Public Procurement and Disposal Act, 2005”.

v. A credible and verifiable voters’ registration is key pre-requisite step for peaceful, democratic and credible elections. IEBC failed to maintain credible, verifiable and clean voters’ registers. According to July 2014 draft internal audit report of 2013 General IEBC admits the following; IEBC did not know the total number of voters; data indicates some registered voters were left out of the national voters’ roll, and there was more than one final register, which IEBC admits it did not ‘fully clean up’; IEBC admits that ‘data was lost’ when being transmitted to Nairobi, and they have neither managed to find out how it disappeared nor recovered the details; the commission failed to give voters enough time to verify the accuracy of the data provided; IEBC staff were ‘negligent’ in doing their job and that they messed up the data because some voters had finger-prints and photos which did not match their names, and other data captured electronically; the accuracy of the register was further affected by the existence of multiple registers, and loss of data due to staff negligence.

vi. Evidence show that IEBC Commissioners and ICT staff were fully aware of the faulty Electronic Voters Identification Devices (EVID) and their high risk of failure. According to Audotor General report On 6 December, 2012 the IEBC ICT Director wrote an internal memo to Deputy Commission Secretary –Support Services on technical issues on the tender for supply of EVID. According to the Director it was clear that the risk of failure of EVID devices was anticipated. Further, all the EVID deliveries were done outside the agreed delivery schedule; inspection and acceptance exercise was not done contravening regulation 17(3)(b) of the Public Procurement and Disposal Regulations, 2006; IEBC officers were never trained on how to use new devices(devices were received between 12 February 2013 and 28 February 2013 at the IEBC warehouse at the industrial area. They were later taken to Kasarani Sports Centre for distribution to the respective polling centers without noting their serial numbers. Further, there was no time to train the IEBC officers on how to use these new devices); and that some devices remained unused.

vii. The Billions of tax payers money that was used for EVID did not play any role whatever in improving credibility of 2013 general elections. It also caused elections’ candidates to incur huge costs in court/legal fees arising from electoral disputes. Further IEBC ( July 2014 internal report) confesses that it had a lopsided contract with the suppliers of the biometric kits. The commission admits the contract was bad, because, had to spend millions in license fees any time it wants to register voters. This condition is both expensive, unsustainable and compromises the ownership of the solution; by extension, the independence of the commission to perform its function. Commission also admits that the huge pending Bills was a result of management negligence, such that Nairobi planned the budget without input from the election coordinators in the field.

viii. The need for Electronic Results Transmission System (ERTS) arose from failure by IEBC to plan for the procurement of EVID in time. If the EVID had worked, it was not necessary for IEBC to have procured ERTS.

ix. Universal Polling Kits delivery was made way after general elections. The kits were low quality; and that they were not factored in the IEBC annual procurement plan

x. There is uncontestable evidence of systematic deliberate compromise and failure of ICT system with intention of not only disfranchising electorate and elections candidates but also subverting the popular will of the people of Kenya for all the elective positions in 2013. he commission also confesses that the presiding officers were poorly trained and that this cocktail of poor training, system failure, complex statutory forms and fatigue among the electoral officials might have that led to errors when the results were being tallied. It is also noted in the Auditor General report that IEBC was also yet to take full charge of the BVR kits from their vendor, and, therefore, it did not have full access to the software capabilities.

xi. IEBC deliberately used non-statutory documents to aid and facilitate achieving of the predetermined results of not only the presidential elections but also for other elective positions. There is overwhelming evidence of doctored results’ documents with list of forged agents’ signatures to alter the election results

xii. Todate IEBC has been unable and unwilling to provide a comprehensive forensic audit report of the 2013 General elections with the supporting materials such as complete forms 34, 35 and 36. This has disfranchised political parties and violated the consttutional right of Kenya to access accurate, timely and verifiable information that is of national importance.

xiii. The IEBC Chairman is not only adversely involved in malpractices, mismanagement and incompetence of the IEBC internal electoral processes management but also openly bias and contemptuous of some presidential candidates. He is explicitly implicated in corruption case for which co-perpetrators are in jail in Britain and their assets recovered. Government of Kenya is laying claim to some of the recovered assets.

Issack Hassan was the Chair of Interim Independent Electoral Commission when he and others were adversely mentioned over the multi-million-shilling scam that involved officials of a British printing company Smith & Ouzman (S&O). They are accused of receiving KSh. 50 million bribes to award printing elections materials printing tenders to the company. However, Issack Hassan refused to reign feigning innocent citing ‘innocent until proven guilty’ mantra. His defence is however, unsustainable.

The Nancy Baraza Judicial Tribunal was categorical that integrity is not criminal conduct. For this reason, the tribunal said, “we have spread our net wide and made reference to Chapter 4 on the Bills of Rights, Article 10, Article 28 and Article 73” to ensure no infringe of rights of the person while protecting integrity of institution of the judiciary.

The tribunal made a distinction between presumption of innocence as articulated in the administration of criminal justice and integrity standards expected of public/state officers. The tribunal asserted that standard of proof touching on the conduct and integrity of public officers is “neither that of criminal law, that is beyond reasonable doubt nor that in civil cases, which is on a balance of probability”.

IEBC COMMISSIONERS AND ACCOMPLICE STAFF MUST STEP DOWN, BE SURCHARGED AND BE PROSECUTED