ECK response to allegations contained in a newspaper advertisement published in the Sunday Nation and The Standard on January 19, 2008

The Electoral Commission of Kenya (ECK) has noted allegations made against it and its officers through newspaper advertisement published in the Sunday Nation and The Standard newspapers on January 19, 2008. The ECK welcomes this analysis and now seeks to correct the many factual inaccuracies and wrong impressions contained in the said advertisements to set the record straight in the public interest.

Allegation 1: The Chairman of the Eck is not sure whether Hon. Mwai Kibaki won the December 27 General Election

ECK Response:

This allegation has been widely circulated in the local and international media. The actual question posed to the Chairman of the ECK by the media was “do you believe the Hon. Mwai Kibaki FAIRLY won the election?” His response was: “I don’t know. That is until I see the original records which I can’t for now unless the court authorizes. What we have are record of results from field officers” (Daily Nation, January 3). The question on whether one has won FAIRLY is a matter of interpretation and not an issue within the competence of the ECK to determine. The media has deliberately distorted this question to remove the word FAIRLY to create the impression that the ECK is uncertain as to who won the elections.

The ECK determines the winner of the presidential election on the basis of the final vote tally. In this regard, Mwai Kibaki was pronounced the winner having garnered the highest number of votes – 4,584,721 votes against Hon Raila Odinga’s 4,352,993 votes.

Allegation 2: The Chairman of the ECK announced the results under duress from PNU and ODM-K

ECK Response:

It is public knowledge that PNU, ODM and ODM-K were all captured on television at various points pushing the ECK to expedite the process and announce final results citing anxiety in the country. On January 3, the Chairman of the ECK was asked: “Were you under duress when announcing the results? Did anyone from State House call you to say this is the winner?” The Chairman responded: “No, no, Kivuitu is beyond that”. (Daily Nation, January 3).

Allegation 3: That the Chairman of the ECK was aware that in several constituencies, the total votes cast exceeded the total number of registered voters.

ECK Response:

The law empowers the ECK to reject the results of any polling station whose votes exceed the number of registered voters. In the December 27 elections, Maragwa constituency was mentioned specifically as having reported more votes than the number of registered voters. However, these were in respect to Parliamentary not Presidential votes. Upon verification by ECK at KICC, it was established that the mistake arose from a double entry of votes from one polling station. This was corrected and the results announced. At the joint verification of constituency tallies on December 29^th at KICC both ODM and PNU confirmed that the results from Maragwa constituency was in order.

Allegation 4: That the Chairman of the ECK was not in control of his officials in the field during the tallying period. In some areas where the results are alleged to have been rigged, the ECK officials had “disappeared” or “switched off their phones”.

ECK Response:

Returning and Presiding officers, Polling Clerks and other ECK officials, are bound by the rules and regulations of the ECK. At some point, it seemed that ECK could not trace some of its officers or reach them on phone. The explanation received by the ECK confirmed that no official deliberately switched off their phones. Some were out of network reach, others switched off as they concentrated on the counting and tallying, others were unable to charge their phones during the vote counting process having been in the field for prolonged periods, while others were unable to travel due to skirmishes.

Allegation 5: That election documents have been tampered with by ECK officials since the announcement of results.

ECK Response:

Tampering with election results is a criminal offence. Anyone alleging tampering is under a legal duty to record statements with the police to facilitate investigations with a view to instituting prosecution. The ECK ensures proper custody of all documents and would not condone any breach of law. ECK has faith in it’s officials and could not expect any of them to tamper with such documents. If there is anyone who can identify such a person who has tampered with the said documents, ECK would be ready to offer any assistance for their prosecution.

Allegation 6: The ECK allowed Returning Officers to submit their returns in absence of agents which is against the law.

ECK Response:

There are instances where some agents of political parties may not have been present to sign Forms 16A when results were announced at the polling station. The absence of an agent (and therefore his/her failure to sign) does not invalidate the results; hold back their announcement of their transmission to the tallying center at the constituency level. It is the responsibility of party agents to avail themselves to sign Form 16A. Absence of agents at polling stations applied to all political parties. It is their responsibility to be there not ours.

Allegation 7: That in 42 constituencies, presiding officers at polling stations refused to make forms 16A available for signature by agents. This was meant to enable fictitious results in favour of Kibaki to be completed at KICC.

ECK Response:

ECK received these complaints and sought explanation form our officers. We have sent to ODM copies of the statement of those officers for their evaluation.

Allegation 8: In some cases, ECK officers at KICC altered Forms 16A e.g. Juja Constituency

ECK Response

Form 16A is completed and signed at each polling station confirming the results. It is signed by the presiding officer and the agents of political parties present. The returning officer then prepares form 16 which is a summary of results contained in all the forms 16A from all polling stations in a constituency.

The case of Juja:

The total number of registered voters in Juja constituency is 163,657. There are 231 polling stations. There was no evidence for anybody to conclude that alterations to any documents were made by ECK officials at KICC. The Chairman noted alterations on form 16 with no explanation. He did seek explanation from ECK officials at KICC and the returning officer. Both groups confirmed the provisional results announced were the unaltered ones. He then ordered the files to be secured. Later on when the Chairman found the final tallied results included the altered results for Juaj, he directed the returning officer to write a statement explaining how the errors arose and what eventually were the final results.

The returning officer explained that as at 1.000 pm on December 28^th, he had tallied votes from 111 polling stations. By then, President Kibaki had 48,293 votes as clearly indicated in the Sunday Nation advertisement. After results from the remaining 120 polling stations were tallied, Mwai Kibaki’s votes totaled 100,390. By that time the commission had no way of verifying this further since there were no other channels available. The voter-turnout in Juja was 73.3%. The total votes cast in the presidential poll was 119,964, while the total for the parliamentary elections was 114,808.

Allegation 9: Agents of ODM were forcefully thrown out of some polling stations

ECK Response:

The ECK has not received any written complaint from ODM regarding any of its agents being thrown out of any polling station(s). Any such complaint should be formally made to the ECK.

Allegation 10: The ECK failed to establish a national tallying mechanism as obliged by the law

ECK Response:

The law mandates the ECK to announce the results of the presidential poll upon receipt and verifications of forms 16 from the 210 constituencies. This is the legal requirement and procedure used in all past elections starting in 1992, 1997 and 2002. It is, therefore, misleading to say that the ECK failed to establish a national tallying mechanism as obliged by the law.

Allegation 11: 5 Eck commissioners have come forward to confirm rigging

ECK Response:

This is news to us! ECK Commissioners were present to confirm final results of the presidential poll as announced by the Chairman of the ECK on December 30. The ECK is not aware of any commissioner(s) who has confirmed this allegation of rigging.

Allegation 12: The ECK received “results” away from public scrutiny from candidates or their agents, and then announced these “results” which is against the law.

ECK Response:

Under the Kenya’s electoral law, results are announced at each polling station in the presence of party agents before transmission to the constituency tallying center, In fact ECK had offered to train the agents at its cost and very few came forward. So if some did not sign the forms it was either out of arrogance or ignorance for which ECK cannot be blamed. The law does not provide for the presence of agents when the ECK is receiving election returns from returning officers.

Allegation 13: ODM agents were barred by armed police and paramilitary officers from accessing the tallying room at KICC

ECK Response:

This is misleading. Ordinarily, the tallying room at KICC is limited to the ECK and not to party agents since the facility was to merely receive and verify results from returning officers. These results would already have been witnessed by party agents at the polling stations and constituency tallying center. If they had asked to access the facility, ECK could have considered it. As a matter of fact on December 29, the ECK allowed each of the three main political parties – ODM, ODM-K and PNU – to send their representatives in the tallying room to verify the presidential tally from all constituencies.

These representatives were: ODM (James Orengo, Dickson Ogolla), ODM-K (Mr Muteti) and PNU (Martha Karua, George Nyamwea). The following observers were also present: KEDOF (Hassan Shanman, Nassir Ahmed, Koki Muli); Association of Professional Societies in East Africa (Julius Melli, Ben Sihanya). It is therefore misleading to say that agents of political parties were not allowed into the KICC tally room.

Allegation 14: In 48 constituencies, results had no Forms 16A which made them unacceptable under the law as true and accurate results.

ECK Response:

For the record, Forms 16A are completed by presiding officers in the presence of party agents and observers at each polling station. The returning officers then prepare form 16 which is a summary of the results contained in all the forms 16A from all polling stations in a constituency.

The claim on the 48 constituencies was first made by the Hon William Ruto on December 30^th when ODM addressed an international news press conference at KICC. Hon Ruto knew or ought to have known that his claim was misleading and misdirected. At the conclusion of the tallying exercise on December 30^th, only results from 11 constituencies did not have Forms 16 received at KICC. The returning officers from all these 11 constituencies had already phoned in the results (as required), but by law, the ECK could not announce the final results until it had verified the returns from each of these constituencies. The chairman of ECK announced that a helicopter had been dispatched to collect these returns from the pending constituencies and these were received and verified before announcement of the final results.

Allegation 15: That the law gives the presiding officer a legal duty to ensure every voter marks the three ballot papers and places them in the proper ballot boxes.

ECK Response:

On the Election Day, there were three distinct elections – civic, parliamentary and presidential. While each voter is expected to fill in three ballot papers, it is not mandatory that one must vote in all the 3 elections – civic, parliamentary and presidential.

All along ECK has said it publicly that it is ready to go with all the parties concerned and look at all Forms 16s and verify what they state and tally them. But instead of ODM taking advantage of this offer it has preferred to aggravate the dispute by involving the public in the streets which has lead to injuries and deaths of innocent Kenyans, and also by making it an international agenda.