It is disappointing that the mainstream media generally presented a false narrative that the case filed by Khelef Khalifa, Tirop Kitur and I on the finality of election results at the polling station was a National Super Alliance case. Nasa joined the proceedings as an interested party only after the Independent Electoral and Boundaries Commission appealed the High Court’s decision, which the media reported accurately. But Nasa was never a part of the case, and joined because it saw the value of increasing transparency and accountability in the election process.
That is to Nasa’s credit. We had hoped that Jubilee, through the Attorney General, and the IEBC, who worked as one, would not only see the legal merits but also the fairness, which eight judges have now affirmed. For the only people who should oppose the finalisation of results at the lowest verifiable level can only be those desirous of stealing elections. And we hoped, perhaps naively, that both the IEBC and Jubilee would want fair, credible and transparent elections, in a process that also reduces the stresses on IEBC commissioners.
So why has the media obsessed with making this a partisan issue when it is not? Is this just unprofessional sensationalism? Or is much of the media, at the corporate, editorial and reporting levels, working with and for Jubilee to distort even noble and non-partisan ideas, as is widely believed?
Media houses have a right to partisan views, but it is professional to be upfront about it. More worrying is that by deliberately misrepresenting information that wilfully divides us, the media increases tensions even as it preaches peace.
So let’s be clear. We filed this case because it was incomprehensible that people sitting in Nairobi, far from the voters, could ostensibly, and secretly, “verify” figures from constituencies. Moreover, the Constitution calls for transparency and accountability in all governance functions, and stresses the devolution of powers and authority. We promulgated this Constitution to move from a dark, opaque and horrendous past, consciously aiming to do things differently from that past. Yet, the IEBC has retained almost all the old ways of doing things, which are dangerous as we learn from 2008.
We argued that because delays in releasing results inevitably raises tensions, the country would be calmer knowing the results as soon as they were announced at the polling stations, allowing us to simply do the arithmetic and comparing that with what media and the IEBC were announcing. What could be more accountable and verifiable than this?
This ruling should now minimise the typical ballot stuffing that has always occurred in presidential candidates’ strongholds, which the IEBC previously massaged in Nairobi to ensure that votes did not outnumber voters. For the law is clear: polling stations that report more votes than voters will NOT count. Thus those inclined to ballot-stuff, on either side, better be careful not to overdo it or their favoured candidate will lose out.
It is now up to all of us to be extra vigilant. We must watch the election officials keenly through-out the day, and take pictures of the results form that must, by law, be posted outside the polling stations and send the pictures to election centers that will be set up. We then must follow up to the constituency level, where the Returning Officer’s role will be to simply add what has been transmitted, and announce the final results for the presidential election. And here we must watch carefully that the votes announced for polling stations, at the constituency, are identical to those announced by the presiding officer.
One of the positive by-products of this case is the wonderful courage, intellectual honesty and thoroughness that judges of the High Court and Court of Appeal demonstrated, which some Supreme Court judges should emulate. This is clearly one of the legacies of the Willy Mutunga era, when significant numbers of competent judges with integrity were appointed, and a sense of independence instilled. The pressure on the judges to relent and succumb remains high, internally and externally, as Judges Makhandia, Ouko, M’Inoti, Kiage and Murgor alluded to in their judgment. We salute them, and their High Court colleagues Judges Muchelule, Mwita and Korir, for their steadfastness and for renewing our hope.