Andrew Mwavua sent an email with an article and his views. Your comments are invited.

This is the most authoritative article on the laws, regulations and constitutional provisions that were violated by the ECK. My comments are below the article.

About 5.30pm on December 30, Electoral Commission chairman Samuel Kivuitu and two other commissioners huddled in a tiny room and, exclusively through state-funded Kenya Broadcasting Corporation, announced President Kibaki re-elected. Within an hour, the President was sworn in at State House at a function in which the national anthem was not played and in the absence of the diplomatic corps. Then the country was thrown into chaos.

In the fullness of time, history will apportion culpability over the current anarchy. At the moment, however, Mr Kivuitu should take full responsibility. But as he tries to run away from this responsibility to blame the chaos on pressure from PNU and ODM Kenya, I wish to offer the correct legal position over the whole saga and how the country can wriggle out of it.

The Electoral Commission of Kenya (ECK) was created pursuant to Section 41 of the Constitution and thus has security of tenure and independence. Section 42A sets out its mandate to be mainly two-fold — the registration of voters and the maintenance of the voter register, as well as directing and supervising civic, parliamentary and presidential elections.

The National Assembly and Presidential Elections Act, Cap 7, and its subsidiary, the Presidential and Parliamentary Elections Regulations sets out the legal framework that enables the ECK to effectively and fully conduct elections. The election of political leaders is a key component of any nation state that claims to be a democracy. To be legitimate, the electoral process must not only be free and fair, but also be seen to be so.

The regulations clearly set out the road-map for conducting elections, voting, votes counting and tallying, announcing results and challenging the process.

Presidential, parliamentary and civic elections are conducted at the polling stations, which are so located that voters have access to them with the least inconvenience and such that the ECK and the Government provide the logistics, the materials and security. At the moment, there are nearly 27,000 polling stations.

Each station is headed by a presiding officer, assisted by poll clerks. On the polling day, voters are given specific times within which they may cast their votes in person and not by proxy. All through the entire voting process, candidates’ agents, the media and accredited observers have free and unlimited access to the polling centre to witness the voting.
At the close of voting, the presiding officer and his clerks, in the presence of the agents, the media and observers, proceed to count the votes. Once the counting begins, the law stipulates that it shall not stop until it is completed. The results are then announced at the polling stations. The presiding officer then makes three packets each separately holding valid, disputed and spoilt ballot papers.

The officer makes another three packets holding spoilt papers, marked copy register and counterfoils of used ballot papers. He also prepares a statement that summarises the voting at the polling station, which he signs. It is countersigned by all the agents present. The packets are sealed and the agents are free to affix their own seal. The two sets of packets, the statement and the ballot boxes are transmitted to the returning officer at the constituency level.

The returning officer, once he receives the packets and boxes from the polling stations, proceeds to tally the votes. This is done in the presence of the candidates’ agents and the media. Vote recounting is not gone into, except for those disputed, and the returning officer has discretion to confirm or vary the disputed ones only. He shall never change the valid or spoilt votes. He then proceeds to announce to all present the results of both the presidential and parliamentary votes.

The returning officer is obliged in law to then fill Forms 16, 16A and 17A, which set out the results and the votes cast for each presidential and parliamentary candidates. The statutory forms are signed by the officer and the candidates’ agents. The agents, the media and observers are allowed to make and keep copies of the three forms, which are then physically delivered to the ECK headquarters in Nairobi.

On receiving them the ECK gives all parliamentary and presidential candidates 24 hours to lodge complaints, if any, including demanding a recount or retallying. The ECK is obliged to, within 48 hours, allow the recount or retallying. All candidates and the ECK therefore have 72 hours to resolve any disputes. It is only after the period that the ECK can announce the winners of each of the 210 parliamentary seats and issue a certificate known as Form 17 to each elected MP and Form 18 to the elected president. The results are then gazetted.

With due respect to Mr Kivuitu, it was irregular, unlawful and void in law to announce the results on December 30 and swear in the President on the same day. The ECK boss announced the results when he did not have the original Forms 16, 16A and 17A from each constituency, refused to allow the 24-hour period for candidates to lodge complaints and declined to allow retallying.

He told the world that his returning officers had gone underground, and that he did not have powers to order retallying. On the day the results were being announced, Special Gazette Notice No. 12612 was issued declaring Mr Kibaki the president. Mr Kivuitu deliberately misled the world and subverted the law.
Section 5 of the Constitution states that the president shall be elected in accordance with the Constitution and the National Assembly and Presidential Elections Act, Cap 7. Non-compliance with the mandatory provisions vitiates the process.

In law, the fundamental principle is that a void process does not confer legitimacy. A public officer acting in compliance with the law must comply with the substantive, formal and procedural conditions laid down and at all times act in good faith and for the public good. As a repository of these constitutional and statutory powers and duties, Mr Kivuitu was obliged to be faithful to the process and not be influenced by external forces, as he has admitted.

By his infidelity to the law, he has failed the country and must undo the mistakes. Section 5 of the Constitution states that a president duly elected is the one who has the highest votes cast.

The ECK can invoke its powers under the Constitution to retally all valid Forms 16 and 16A and retract the results and announce the valid ones. The announcement of results on December 30 was a ministerial act that does not invalidate the ECK’s constitutional powers.

The Constitution states that any other law that is inconsistent with the provisions of the Constitution is void to the extent of inconsistency. Thus, Mr Kivuitu must take the high road, invoke the ECK’s constitutional mandate and review the forms and give Kenyans the president they elected, be it Mr Kibaki or ODM candidate Raila Odinga.

The tough stands taken by ODM and President Kibaki’s PNU are theatrics which will not help the country. Neither party has any constitutional mandate that is the ECK’s monopoly. If he allows the status quo to stay, Mr Kivuitu will one day be held to account for the bloodshed and property destroyed.

The country’s unity and future rest on his shoulders, and he cannot pass the buck.

Mr Kipkorir is an advocate of the High Court.

Below are my (Andrew Mwavua's) comments:

This is a great article. Certainly it is the most authoritatively factual one that I have read. However, the conclusion that the election results announced by the ECK should be retracted, the votes retallied and the winner by virtue of majority vote announced is inappropriate and inaccurate. This would have been the appropriate solution if and only if the rest of the process governing elections was followed as per the laws of Kenya. A review of all the facts as pertains to the 2007 election proves that this was not the case. Merely to conclude that the retallying of votes is the appropriate action is categorically inappropriate because:

1) Reasonable minds agree that there were serious anomalies in the tallying process itself. We have no lesser an authority that the chief European Union election observer corroborating the same. The U.S. Ambassador, Mr. Rannenberger is also on record stating this. The author of this article, Donald Kipkorir, an advocate of the High Court, calls for the retallying of all "valid" form 16A's. How will the authentication and verification of the stated validity be arrived at? And what of the hundreds of thousands of Kenyans whose votes and consequently constitutional rights shall be invalidated through no fault of their own in the constituencies whose votes shall be thrown out? Mr. Kivuitu himself has admitted that the files (and consequently form 16A's) that he is now seeing from some of the disputed constituencies could not possibly be the original files because they are void of the comments and other markings that were part of the ECK's work product while tallying the votes on election day and soon after. The retallying of altered, incomplete, or inappropriately received election results will still result in an inaccurate result, and rob all Kenyans of democracy.

2) Both camps, PNU and ODM have accused each other of rigging. While being impartial to both sides, one could safely arrive at the conclusion that not only is it possible, but it is also highly probable that there was election malpractice on both sides, without assigning proportions to the improprieties, as unconscionable as they were. Even while moving forward in a blundering and illegal fashion, evidence of rigging was so prevalent that Mr. Kivuitu was forced to invalidate the votes in no less than two constituencies - in one, the votes cast were 115% of the number of voters registered! Therefore, by virtue of these facts, and supported by the opposing parties own admissions via their accusations, we can only arrive at one conclusion: we did not have a free and fair election in Kenya. We do have empirical evidence that in a number of constituencies in the country, observers were thrown out or barred from entering. As Kenyans, we all ascribe to the virtue "Justice be our Shield and Defender." It is immortalized in our national anthem. In honor of the Kenyans whose innocent blood has been shed during the post-election violence, in honor of the many more that died to give us freedom and democracy, in the true spirit of the birth pains of what is our fledgling democracy, let us all unite and demand one thing: We must have peace, and immediately thereafter another presidential election. This time, we must insist that the letter and spirit of the law is followed.