NEW YEAR EVE

Its almost surreal what we are undergoing in Kenya today. Never thought it would happen here. I guess our virginity is now broken. My wireless internet was down. My supplies in the house are at a bare minimum. I did not have Telkom airtime. Non was available in the only shops open today. I did not have any money. I could not find any ATMS working. Finally, Nakumatt Mega was open. Thank God for PLASTIC! Had to wait 3 hours on the queue with other peace loving Kenyans ... reminded me of voting day ... all waiting patiently. I hate myself for thinking about such mundane things when my brothers are dying .....

I sometimes hate being a lawyer because, i am always inclined to view issues in an overly legalistic manner, devoid of the social and political milieu. I think this is the option the ECK took when it decided to certify the presidential results and as Hon. Orengo states, present a fait accompli. By following the black letter law the ECK simply abandoned its larger responsibility of ensuring that the result was free and fair. In future Kenyans will be asking whether they need to vote, if the ECK cannot guarantee a fair result. I just think the ECK should have scrutinised the tallies and we would all be the better off. In any case, I doubt a Court scrutinising the ECK decision would be prepared to say that the ECK decision was wrong where it led to the correct result being certified. After all the court duty in election petitions is to ensure that the result reflects the will of the people.

I would also like to comment on the so called Live Broadcast Ban instituted by GK. This I can clearly state has no basis whatsoever in law. No law was cited to support the ban nor legal notice issued and published in the Kenya gazette to that effect. In fact, I am surprised that the Media Owners continue to respect it and giving it credence by urging the government to lift the ban. i just think that the Media Owners are finding political cover for their own self censorship and if they were serious about their responsibilities they would continue live broadcasts as the law is clearly on their side. Happily, this issue has been decided and disposed of by the the High Court sitting as a "Constitutional Court". In the case of the Nation Media Group vs the AG (2007), the court invalidated regulations issued by the minister which required prior government approval of films, documentaries, features etc. The court had no difficulty finding that that these kind of regulations were not justified in a democratic society.

Peace, Love and Unity, 2008.

FURTHER THOUGHTS

My further thoughts after listening to the contestants;

• H E Mwai Kibaki's term expires today, a new President must under our Constitution be sworn in today.
• There is no provision in our laws for a national recount as requested by Raila. Once this door is opened we might as well tear all the laws down.
• While Raila had the right to criticise judges, he should exercise more circumspection in calling them acolytes of Kibaki.
• I would like the Attorney General to come out very clearly and state what the law requires.
  

LEGAL ASPECTS ELECTORAL PROCESS CONTINUED

Honourable Mutula Kilonzo, SC was right to observe that the legal process must be observed to the letter.

Anyway, it is now becoming clear to me that neither the ECK officials. candidates nor their agents, including some lawyers of experience, have familiarised themselves with the provisions of Presidential and Parliamentary Elections Rules which govern the conduct of elections. If they had, some of these problems would have been avoided. The rules provide, among others, the following;

• A counting agent has the right to seek a recount at the polling station before the Presiding Officer announces the results at the Polling Station

• A counting agent has the right to obtain a copy of the polling results after the poll has been announced at the station.

• The Presiding Officer must supply a copy of the result sheet to each agent and post a copy of the results on a prominent part of the building where the public has access.

• The tallying sheet must be signed by each agent, failing which, the presiding officer should record the reasons why the the agent has refused to sign.
• Each candidate is granted a right to demand a recount or challenge the result within twenty four (24) hours after counting and tallying by the Returning Officer. The candidate may petition the ECK directly which is then bound to arrange for a recount or tally but must decide the candidates petition within 48 hours after receipt of the petition.

• A Tallying Centre is not a counting centre in the sense that ballots are not re-counted but the results of all the Polling Centres in the Constituency are tallied. That us why it is more important for the agents to secure the Polling result sheets countersigned by all the agents. While there is a danger that ballots and ballot boxes may be introduced after the ballots have been counted, once the Polling officers and agents have done their work and secured the result sheets, these new material can easily be ignored if it does not conform to actual tallies.

• Once the elections have been declare by the Returning Officer, in the absence of a challenge contemplated above, the RO is functus officio and the election result cannot be re-opened except through an election petition.
• The only was to challenge an election or the result of an election is through and election petition filed in the manner provided by the National Assembly and Presidential Elections Act. The election process cannot be stopped or stayed in any manner.
  

When the rules were amended, it was contemplated that the polling station was to be the focal point of all matter concerning counting. The candidates agents would then assume an important position in ensuring that all the votes cast were valid and properly counted. Furthermore, this would reduce the inherent problems in counting a large number of ballots from the whole constituency. Notwithstanding allegations of rigging, I think the party's must take some responsibility for failure to invoke the proper process. Writing letters or press statements while the ECK is delivering the results is neither appropriate nor proper. I wonder why parties have legal advisers.

While I understand that the fact that there has been an increase in the number of voters and candidates, they has been clearly a failure of candidates agents and some ECK officials to take their work seriously. Similarly, the ECK has failed to clearly inform or educate the public on the proper legal process that is applicable to the situation such as one we face.

LEGAL ASPECTS ELECTORAL PROCESS

I am proud that Kenyans have voted. However, I wish to point out several issues I think we need to reflect on in the future.

• I think polls are important. If the ECK and everyone had taken all polls seriously, it would have been clear that this election would be very close and caution and extra arrangements would need to be made.
• Technology, technology, technology. A substantial part of the problems being faced could have been solved by using available technologies to communicate between the polling stations, counting stations and ECK in Nairobi. Even the use of a simple Excel spreadsheet would have assisted these guys tally the votes!
• I agree with mentalacobatics that these guys really need a good press team who can do rapid response. Part of the problem we are having is that there is a total breakdown on communication.
• The ECK failed to take precautions in securing the trouble spots like Kajiado North which has had problems in the past. Constituencies with potential for problems ought to have been identified and experienced returning officers identified and posted to those places.
• There is a total lack of decisive leadership. How can the Chairman of the ECK tell Kenyans that he has no idea where his returning officers are! It is his business and perhaps we should have a more rigourous way of appointing those who sit on these bodies.

I think the main responsibility of the ECK is to ensure that the law is followed to the letter. The politicians should take responsibilty of ensuring that the public is not duly alarmed and the political situtation remains calm.