[wanabidii] WHY THE IEBC WILL PREVAIL AGAINST PM ODINGA/CORD PETITION

All else being equal, Prime Minister Odinga has conducted himself honorably since the March 4 elections that declared Uhuru Kenyatta the winner,  relatively speaking that is,  compared to 2007/2008. He has taken his grievances to court and had he followed the same path 5 years ago, Mr. Odinga would be the epitome of statesmanship and perhaps win this round by a landslide. The fact is he didn't and I hope I haven't spoken too soon and that there won't be another bloodletting showdown in the offing around the corner. I think that the Prime Minister often speaks carelessly without thinking and he forgets that words matter, they can build or destroy.  Even before the ink was dry on the certificate issued to Kenyatta, he publicly called the President-elect and his Deputy criminals who belong to prison and not Statehouse and has also claimed that he won the elections by a whopping 1.5 Million votes (don't ask me who counted). To drive the point home, he filed a petition before the Supreme Court and immediately declared that the SC will rule in his favor and that his opponents should be ready to accept the SC ruling. Just as they all (including the PM) had agreed to accept the people's verdict on March 4, Kenyatta and Ruto once again agreed to abide by the SC decision.

 

As far I am concerned, the IEBC failed Kenyans in a lot of respects over the last year in major ways not the least of which was its failure to register as many eligible voters as possible and also failing to announce results immediately they concluded the tallying at the polling centers.  However, none of these infractions are actionable before the Supreme Court. Contrary to the PM's petition, there is no known remedy that would result in a different outcome than the one on March 4.

Win or lose-to his credit PM Odinga has provided the country  a great opportunity to test the apparatus of government. Losing is hard for anyone but nobody can contest the PM's fighting spirit, it may be misplaced but he has great determination and I greatly applaud him for that. However, what's germane in this matter is whether Prime Minister Odinga has raised sufficient legal challenge against IEBC and president elect Kenyatta to warrant the overturn of the elections and the answer is no. The court has to be convinced that the outcome would be different but for what CORD contends IEBC did wrong and that is practically impossible, the margins are too wide and the nation is too fatigued to endure another grueling political season just to give the Prime Minister a do-over chance. The nation's economy depends on a stable political environment, investors are waiting to see what the court does and I don't think the justices would ransom the whole country's future on the basis of CORD's unproven claims, I just don't see how.

For those of you who had a chance to review the PM's petition, it speaks for itself. To those of you haven't, the PM is asking the court to nullify the March 4 elections of President elect Kenyatta primarily because a) IEBC failed to carry out proper and valid voter registration in accordance with Article 83 of the Constitution. b) In some constituencies, the number of votes cast exceeded the number of registered voters. c) IEBC allowed a mobile phone service provider to co-host both its server and that of the TNA. d) IEBC electronic results transmission systems adopted were poorly selected and designed and e)IEBC failed to conduct transparent, verifiable and accountable elections.

I don't' know who advises the PM but methinks that our PM has very bad advisors who have badly misled and misadvised him. They ran a roughshod job from the messy nominations that for the first time saw Kenyans around the country raucously rebel against the PM and his ODM party, to a badly run general campaign and now this poorly crafted petition. The petition does not even state a claim upon which the Supreme Court can grant remedy. Let's just review the PM's broad premises one by one:

a) IEBC failed to carry out proper and valid voter registration in accordance with Article 83 of the Constitution.

I cannot make what this assertion by the PM is all about because there is absolutely nothing in this that even remotely warrants a constitutional reference.  The constitution doesn't define or specify how voter registration should be conducted. Moreover, even for argument sake, the court granted the PM's assertion, it still falls flat on its face because it is barred by laches and estoppel; the PM failed to assert this claim in a timely manner and frustrated his claim through his own actions as well. Specifically, the PM's coalition parties used the IEBC voter register for their nominations countrywide and in so doing they affirmed and validated the IEBC voter register, so are we now to believe that the same voter register that was valid during CORD's primaries is invalid now? Which is which? How does he reconcile the two?  Is CORD also willing concede that its primaries were equally a sham? I mean outside of what we saw happen during the CORD primaries where losers were declared winners, who prevails, IEBC or CORD. CORD accepted and affirmed the IEBC voter register as valid back in December and proceeded to use it to conduct its primaries and there are no demonstrably material changes in that register to even warrant any additional review by the SC. This is a puny poorly crafted and misplaced claim that when viewed in tandem with the rest of the assertions renders the entire petition frivolous. CORD simply wants a second bite at the apple and unfortunately that's not how this works.

Even granting as valid the PM's assertion that the voter register is compromised and inaccurate the Supreme Court must still be convinced that nullifying the elections will in fact result in a different more accurate and complete voter register than what the IEBC has now. Invariably such an order by the court means an entirely new voter registration exercise otherwise it will be an exercise of futility and I cannot fathom the Supreme Court mandating such an impractical solution that is certain to render our democracy in limbo or going to that extreme. Additionally, if the SC were to grant CORD's petition they would have also implicitly invalidated the entire elections of March 4 because our presidential elections are inexplicably intertwined with the rest of the elective offices i.e. the Governors, Senators, MPs, Councilors, etc. In other words, there is no severability in our election laws that would invalidate one outcome and not the other given the fact that all else being equal, the voting was conducted uniformly across the board.  What is good for the goose is also good for the gender.  If this scenario were to materialize, it would open a floodgate of election petitions that will overwhelm the court system, majority of them frivolous just because the SC overturned the March 4 elections.

b) In some constituencies, the number of votes cast exceeded the number of registered voters.

I am not even sure where to begin with this one, clearly this is fiction on the PM's part, it is one of those where one throws so much mud against the wall and hope some of it stick but nowhere in the tally from the IEBC is there an incident of votes exceeding registered voters, not one (1) incident. I mean it is one thing to actually cite actual evidence but in this case the PM's assertion falls flat on its face. Nobody is entitled to his/her own facts and the PM is no exception. I think this will be a very easy one for the SC to dispose of.

c) IEBC allowed a mobile phone service provider to co-host both its server and that of the TNA.
And? What does that prove? It is like saying that yahoo or google shouldn't host millions of email accounts for its customers because there might be an inherent conflict of interest, I mean teh absurdity of it all! Of course the PM is contending that the IEBC colluded with President-elect Uhuru Kenyatta by way of the mobile phone service provider and therefore the results are compromised but this is all speculative. From what I am told what Unless the PM expected the IEBC to own the platform in question Suspicion alone is not prove of any wrong doing, the PM must prove to the court that a) there is a clear nexus between the service provider and TNA and b) such nexus in fact compromised the voting and tallying of votes. That is a tall order

d) IEBC electronic results transmission systems adopted were poorly selected and designed
The PM's assertion is factually true on this but he still has to show a clear nexus between the poor selection of the transmission system and stealing of the votes. In this instance, the PM will prevail insofar as the system failure per se because it is true that the electronic results transmission system failed but the IEBC fully mitigated this failure by resorting to manual tallying. Manual tallying should have been the PM's focus in the petition and not the electronic results transmission system, the IEBC has already acknowledged the system failed. IEBC's structural deficiencies do not necessarily mean the elections were botched. The mode results transmission does not necessarily change the actual results, the PM has to prove the actual results transmitted were different on account of the electronic transmission system, I don't think he or anyone else can.

e) IEBC failed to conduct transparent, verifiable and accountable elections.
This is hyperbole. It is a broad paintbrush laden with platitudes and speculation.  I mean the difference between CORD's own primary nominations and IEBC's conduct of elections is night and day. The IEBC conducted 10 times cleaner elections than CORD did; CORD has unclean hands on this and I don't think the court will entertain this argument, it has already rejected the burdensome 900 plus pages affidavit that CORD contends proves IEBC's malfeasances. 900 pages is material amount of evidence and the fact that the court disallowed it indicates that CORD has found itself in an uphill battle- the cannot expect a ruling in their favor when such a huge chunk of evidence is inadmissible, I just don't see how.

Truth be told, the PM  knows that he lost this elections when major demographics, especially the Kalenjins left him in protest for Uhuru Kenyatta. His advisors, instead of working to win the hearts and minds of voters and registering more voters, squandered the opportunity by cooking opinion polls and lying to him instead. They didn't do a good enough job to replace those crucial voters, not enough Kambas and Kisiis could make up for the loss. It didn't help matters that Mudavadi also peeled off a lot of votes from the Prime Minister.  Call it abhorrent but tribal politics is the mainstay of Kenyan politics, he who has the large tribes wins this thing. Uhuruto team simply had the numbers, simple as that. Even the voting patterns clearly demonstrate that, CORD's percentage winnings in all other elective posts countrywide mirror the PM's at the presidential level. A repeat of the elections wouldn't magically create new voters, in fact the wrath of voters would be turned against the PM, perhaps it is time to be pragmatic and simply see this for what it is, CORD lost the presidential elections fair and square.