By Stan Oyunga (email@example.com)
The 2007 Presidential Elections remains a watershed in Kenya’s history, which triggered its worst political crisis since independence and threatened its status as a haven of peace in Eastern Africa.
The events of Sunday, December 30TH, 2007 still remain fresh in the minds of Kenyans, especially those who lost loved ones, were injured, lost property or were displaced in the post-election violence that followed.
It resulted in the deaths of 1,333 people and the displacement of over 600,000, with loss of billions of shillings in property and to the economy, but it could have been avoided if a small paragraph in the election regulations had not been invoked.
THE KAMKUNJI ELECTIONS FIASCO
Ironically, the 2007 General Elections were held smoothly and peacefully except in Kilgoris in Trans Nzoia District where the Parliamentary election results were cancelled due to violence. The Kilgoris elections were repeated in 2008.
In Kamukunji in Nairobi Province, the results of both Parliamentary and Presidential elections were cancelled due violence at the tallying centre, leading to damage and loss of some ballot boxes.
The Election Commission of Kenya (now defunct) cancelled the results of this election due to violence at the tallying centre and ordered the Parliamentary elections repeated. A candidate, Simon Mbugua filed an application for Judicial Review against the ECK for failing to declare him the winner. In August, 2008, the High Court ordered the ECK to announce the results of the parliamentary elections, ruling ECK had no mandate to order a repeat election.
Simon Mbugua of PNU was declared elected as MP, eight months since the election was held, and making history as the longest time it had taken to declare a winner of an election in Kenya. Only the results of the leading 3 candidates were announced and total number of votes cast and valid votes were never released. The election of Simon Mbugua was later nullified by the High Court in January 2011 after a successful petition. A By-election was set for 23/5/2011 but was stopped by a court order which was later lifted. The By-election was eventually held on 18/8/2011 and was won by Yusuf Hassan Abdi of PNU.
The ECK did not order a repeat of the Kamukunji Constituency Presidential election, hence it was the first in Kenya’s history where the results of a presidential election at constituency level were never released. The ECK may have used a little known section in a regulation under the National Assembly and Presidential Elections Act, Cap 7 (now repealed) not to order a repeat as they did for the Parliamentary election (but never gazetted).
Section 41 (2) (a) of the National Assembly and Presidential Regulations, states, inter alia:-
“in the case of a presidential election, whether or not forming part of a joint election, hold the certificate until the results of that election in every constituency have been received and thereafter publish a notice in the Gazette declaring the person who has received the greatest number of votes in the election, and has complied with the provisions of section 5 of the Constitution, to have been elected President: Provided that the Electoral Commission may declare a candidate elected as the President before all the constituencies have delivered their results if in its opinion the results that have not been received will not make a difference as to the winner on the basis of section 5 of the Constitution.”
Without the results of the Kamukunji Presidential election, the ECK appeared to have used the above section to declare Mwai Kibaki of the PNU as winner of the 2007 Presidential Elections. Since the total registered voters for Kamukunji was 119,015, and Mwai Kibaki had received 4,578,034 against ODM’s Raila Odinga’s 4,352,860 from the 209 constituencies (a difference of only 255,174); the ECK concluded that repeating the Kamukunji elections would have not made a difference. This was the closest Presidential election in Kenya’s history and among the closest in Africa.
MYSTERY OF KAMUKUNJI PRESIDENTIAL RESULTS
What if the difference was less than 119,015, the number of registered voters in Kamukunji Constituency? Would the ECK have still declared Mwai Kibaki the winner? This is the million dollar question, which nobody has dared ask in nearly eight years. 106,160 more votes was what was required to prevent the ECK from declaring Mwai Kibaki President on that fateful Sunday afternoon and letting Kenya sink into unprecedented violence that lasted two months. Sould the ECK have delayed the swearing in at State House that took place at dusk on 30th, December 2007, to allow for further consultation and legal advice?
If the presidential election ballot boxes were damaged or destroyed after the chaos at the Constituency tallying centre, the ECK would have officially cancelled the election under section 25A (1), which states, inter alia:-
25A. (1) Where a date has been appointed for holding of an election, and there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Electoral Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election.
(2) Where an election is postponed under paragraph (1), the election shall be held at the earliest practicable time.
After failing to obtain results from Kamukunji Constituency, the ECK announced on 29th December, 2007 that the elections would be repeated and left blank the results of Kamukunji on the official gazette notice no 12615/07. In a strange twist of events the ECK never officially cancelled the results since in January, 2008, it ordered the Returning officer to compile results from Form 16A posted on walls of classrooms in the polling stations and also pluck them from the 135 available ballot boxes out of the 157 original ballot boxes. The Form 16A were then used to compile results of the top three candidates in both the Presidential and Parliamentary elections but never publicly released the Presidential result tally. (See attached Election Petition no 35 of 2008 from Kenya Law Reports).
Since there was no Presidential election petition filed by the loser, Raila Odinga of ODM, the fate of the ballots of the Kamukunji Presidential Election was never resolved and remains a symbol of all that went wrong in the 2007 General Elections. Had the gap between Kibaki and Raila been less than the number of registered voters for Kamukunji, Mwai Kibaki would legally not have been declared President but would have still have continued as President until repeat of the Kamukunji elections.
What if the Presidential vote tally was manipulated to ensure the gap was to be above 119,015 to allow section 42(2) (a) to be invoked and promptly declare Mwai Kibaki as President? The answer to this question may never be known and even the then Chairman of the ECK, the late Samuel Kivuitu later stated that he was “under pressure” to declare Kibaki the winner and he was not even sure who actually won the 2007 Presidential elections.
ECK should have issued a Gazette notice under Section 25A (1) of the National Assembly and Presidential Election Regulations, to cancel and set a repeat date for both the Presidential and Parliamentary elections. The post-election violence of 2007/2008 would have been prevented or would not have been so intense. Why did the ECK not act as per the law? Why were the voters of Kamukunji denied their constitutional right to elect a President of their choice? It took a record eight months for the Parliamentary results to be released (by court order) only for them to be nullified in January, 2011, over three years later!
A gazette notice would have countermanded any results then announced by the returning officer, as it was clear not all ballot boxes had been availed for counting and certified by Form 16A as required by the National Assembly and Presidential Elections Regulations. No credible election had taken place in Kumukunji in 2007, as per the landmark judgement by Lady Justice Mary Ang’awa on 27th January, 2011 in Election Petition no 35 of 2008.
The Kamukunji Constituency election of 2007 still remains the worst handled constituency election in Kenya’s history and turned-out to be a fiasco. The “instant” declaration of a candidate as President was ended by Article 141 of the new Constitution of Kenya, 2010 which allows a losing candidate to file a petition to challenge the results, hence the leading candidate cannot be sworn as President until the petition is determined. A run-off election is now required by Article 138 if the leading candidate fails to attain 50% plus 1 of the votes cast. The electoral body can no longer give an “opinion” as every vote cast must be counted.
The Election Commission of Kenya was dissolved on 29th December, 2008, following the enactment of the Constitution of Kenya (Amendment), Act, 2008 and replaced by the Interim Independent Election Commission (IIEC).
31st August, 2015
© 2015 STAN OYUNGA