KPTJ Statements & Letters

Press Statement on Civil Society Supreme Court Petition

admin — Tue, 19 Mar 2013 10:59:46 +0000

Members of Kenya’s civil society filed a case in the Supreme Court today, challenging the legitimacy of the March 4th 2013 General Election.

“Our case is not about who’s won, but how the public has lost – we lost the promise of a transparent, accurate and effective process,” said Gladwell Otieno, Executive Director of Africa Centre for Open Governance (AfriCOG) who filed the case. Otieno spearheads the Kenyans for Peace, Truth and Justice (KPTJ) coalition, which includes members and individuals from Kenya’s civil society.

Click here to download full statement

The case concentrates on the election process rather than the presidential results. Otieno said the principle concern of the action is to protect the Constitution and safeguard the future of democratic elections in Kenya.

After suffering unprecedented violence around the disputed presidential elections of 2007-8, Kenya spent millions of dollars creating a new electoral board and a new electoral system, the Independent Electoral and Boundaries Commission (IEBC). The IEBC was allocated KS 24.9 billion, approximately US$ 290 million, to introduce a system that guaranteed verification and transparency. Donors put millions into the IEBC as well. This means Kenya cannot brush aside such a massive and expensive project without taking an honest look at its effectiveness and impact. KTPJ calls on donors to support this case as a means to help future confidence in expenditure and accountability, democracy, and the development of Kenya.

The Independent Electoral and Boundaries Commission was equipped with internationally procured, tried-and-tested technology, to comply with the post-crisis recommendations, and the demands of the new Constitution. The Constitution explicitly demands that IEBC ensure that “whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent (Chapter 7 Part 1, no 86 (a)). But when the polling stations opened on March 4th, the IEBC said the Electronic Voter Identification (EVI) system had failed to function countrywide and instructed the Presiding Officers to use manual registers. On March 6th, the IEBC then declared it was also abandoning the electronic transmission system, and reverted to manual tallying. There was tension in the country as a catalogue of numerical and procedural errors delayed the results and undermined public confidence.

The group is petitioning the Supreme Court on the basis that the election process was irredeemably flawed, and should be nullified.
“We have a newly-minted election body that has failed the test. The elections were eventually conducted in the same way as the 2007 elections, even though the IEBC was constituted to do it differently,” said Maina Kiai, human rights activist and UN Special Rapporteur for Freedom of Assembly and Association.
“We are courting serious disaster. A fair election process is the only way people in this country have a peaceful right to change governments and express their choices in a fair and transparent way. Otherwise, people will stop trusting elections and resort to other means,” he said.

KPTJ said it welcomed the calm and patient participation of the Kenyan people in the election. It is calling on public support for the case as an investment in a peaceful future. The group cautioned that peace is not just the absence of conflict and violence: truth and justice are critical for real peace.
KTPJ said the actions of the IEBC threaten future elections, and yet it had offered no credible or detailed explanations on the technological failure, the numerical errors, or the chaotic scenes at the polling stations.

“Billions were spent on making a difference. Those billions have been lost. But the cost of compromising democracy in Kenya is incalculable,” said Otieno.

Click here to download full press statement

Civil Society Election Petition

admin — Tue, 19 Mar 2013 10:53:08 +0000

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

PETITION NO. 4 OF 2013

IN THE MATTER OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE ELECTIONS ACT 2011

AND

IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATIONS 2012

AND

IN THE MATTER OF THE ELECTIONS (REGISTRATION OF VOTERS) REGULATIONS 2012

AND

IN THE MATTER OF THE INDEPENDENT & ELECTORAL BOUNDARIES COMMISSION ACT 2011

AND

IN THE MATTER OF THE SUPREME COURT ACT

AND

IN THE MATTER OF THE SUPREME COURT (PRESIDENTIAL ELECTION PETITION) RULES 2013

PRESIDENTIAL ELECTION PETITION

THE PETITION OF GLADWELL WATHONI OTIENO AND ZAHID RAJAN

BETWEEN

GLADWELL WATHONI OTIENO…………………………………………………………… 1^ST PETITIONER

ZAHID RAJAN ………………………………………………………………….. 2^ND PETITIONER

AND

AHMED ISSACK HASSAN ……………………………………………………. 1^ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION … 2^ND RESPONDENT

UHURU MUIGAI KENYATTA …………………………………………………… 3^RD RESPONDENT

WILLIAM SAMOEI RUTO ………………………………………………………. 4^TH RESPONDENT

PETITION

TO THE SUPREME COURT OF KENYA

SUPREME COURT BUILDING

NAIROBI

THE HUMBLE PETITION OF GLADWELL WATHONI OTIENO AND ZAHID RAJAN in the Republic of Kenya whose address of service for the purposes of this suit is care of Kilonzo & Company Advocates, Kay Group Center, Mucai Drive, Ngong Road, of P.O. Box 59839 Nairobi Showeth as follows.

1. THAT the 1^st Petitioner is a Kenyan Citizen and the holder of Passport Number C013093. She is also a registered voter and voted in Lang’ata Constituency in Nairobi in the Republic of Kenya, in the 2013 General Elections.

2. THAT the 1^st Petitioner is the Executive Director of Africa Centre for Open Governance (hereinafter referred to as AfriCOG), a non governmental organization registered in Kenya under the Non Governmental Organizations and Coordination Act, with its offices in Nairobi.

3. THAT the 2^nd Petitioner is a Kenyan Citizen and the holder of National Identity Card Number 1239145. He is also a registered voter and voted in Embakasi Constituency in Nairobi in the Republic of Kenya, in the 2013 General Elections

4. THAT the 1^st and 2^nd Petitioners are qualified and entitled to present this Presidential Election Petition under the Constitution.

5. THAT the 1^st Respondent is the Chairman of the Independent Electoral and Boundaries Commission (hereinafter referred to as IEBC), the 2^nd Respondent.

6. THAT the 1^st Respondent was the returning officer for the presidential elections held on 4^th March 2013 and is enjoined as a party to this Petition by reason of his conduct and the conduct of his subordinates being election officers appointed under the law.

7. THAT the 2^nd Respondent is a body corporate and an independent constitutional commission established under Article 88 and 248 of the Constitution and the Independent Electoral and Boundaries Commission Act.

8. THAT the 3^rd Respondent was one of the presidential candidates at the 2013 Presidential Elections and was declared to be the President-elect by the 1^st Respondent on 9^th March 2013.

9. THAT the 4^th Respondent was nominated by the 3^rd Respondent as his Deputy Presidential Candidate and was declared to be the Deputy President-elect by the 1^st Respondent on 9^th March 2013.

10. THAT the General Elections of 2013, including the Presidential elections, were the first elections conducted under the Constitution promulgated on 27^th August 2010.

11. THAT the Presidential Election was held on the 4^th March 2013 to elect a person to the office of President and Deputy President.

12. THAT in the said Presidential election the following were the candidates who were aspiring to be President: -

a. James Legilisho Kiyiapi

b. Martha Wangari Karua

c. Mohamed Abduba Dida

d. Musalia Mudavadi

e. Paul Kibugi Muite

f. Peter Kenneth

g. Raila Odinga

h. Uhuru Kenyatta

13. THAT after counting of the votes cast and tallying at the National Center the 1^st Respondent being the returning officer of the Presidential election announced or declared that the said candidates had received votes as follows and that the number of valid votes were as follows.

No	Name of the Candidate	Votes	Percentage
1	James Legilisho Kiyiapi	40,998	0.33
2	Martha Wangari Karua	43,881	0.36
3	Mohamed Abduba Dida	52,848	0.43
4	Musalia Mudavadi	483,981	3.93
5	Paul Kibugi Muite	12,580	0.10
6	Peter Kenneth	72,786	0.59
7	Raila Odinga	5,340,546	43.31
8	Uhuru Kenyatta	6,173,433	50.07
	Rejected Votes	108,975	0.88
	Valid Votes	12,221,053	99.12
	Total Votes Cast	12,330,028	100.0

14. THAT the Presidential Election was not free, fair, free from violence, or transparent; it was not administered in an impartial, efficient, accurate or accountable manner; the electoral management system adopted was neither simple, accurate, verifiable, secure, accountable nor transparent; the counting and tallying of votes were neither open, accurately collated nor promptly announced; neither were appropriate structures or mechanisms to eliminate electoral malpractice put in place, including the safe-keeping of electoral materials, contrary to articles 81 and 86 of the Constitution.

15. THAT the cumulative effect of the foregoing is a total violation of Article 38(2) and (3) of the Constitution.

16. THAT Article 3 of the Constitution placed an obligation on the 1^st and 2^nd Respondents to uphold the Constitution and outlaws the establishment of a government in contravention of the Constitution.

17.THAT by violating their obligations under Articles 38, 81 and 86 of the Constitution, the 1^st and 2^nd Respondent have in effect violated Article 3(2) which provides that: -

“Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.”

18. THAT the breaches of the constitutional and legal obligations seriously affected the validity, legality and credibility of the election and the results thereof.

19. THAT in the Conduct of the Presidential Elections of 2013 the 1^st and 2^nd Respondent did not observe or uphold the national principles of good governance, integrity, transparency and accountability provided for in Article 10 of the Constitution.

20. THAT an accurate, publicly available, verifiable and credible Voter Register is the corner-stone of achieving a free and fair election as contemplated by Articles 38, 81 and 86 of the Constitution of Kenya.

21. THAT the 1^st Respondent reiterated the above in a Press Release published on the web-site of the 2^ndRespondent, in which he said that “establishing and maintaining an accurate and credible Voter Register is a critical component of electoral integrity and the enfranchisement of the people. We cannot talk of free and fair elections if we do not have a credible Register to begin with.”

22. THAT the 1^st and 2^nd Respondents did not meet their obligation under Articles 38(3), 81(d), 83(2), 83(3), 88(4)(a) of the Constitution; sections 3 to 8 of the Elections Act, 2011; and the Elections (Registration of Voters) Regulations, 2012, in the registration of citizens as voters, and in the compilation and certification, and use of the Register of voters

PARTICULARS

a. Upon the close of voter registration, the 2^nd Respondent published a Provisional Register as at 18^th December 2012.

b. In accordance with section 6 (as amended) of the Elections Act, after inspection, the 2^nd Respondent compiled, certified and published the Principal Register of Voters; while the Notice of Certification of Compilation of the Principal Register of Voters was published in the newspapers on 18^th February 2013, the Electronic Register was published on the 2^nd Respondent’s website on 24^th February 2013.

c. There exist abnormal and unexplained patterns of additions and subtractions of entries in the Register. The overall result was a net increase in the numbers of registered voters in the overall, national Voter Register.

d. In verifying a Voter Register as provided by Sections 6 and 7 of the Elections Act, 2012, there cannot be an increase to the total numbers of registered voters. There can, at best, only be transfer of voters from one voting area to another, without a net increase of voters on the overall, national Voter Register.

e. Before the elections, the 2^nd Respondent released to the political parties CD-Roms containing the Register of Voters other than the Principal (Electronic) Register.

f. There were 15,703 less registered voters on the CD-Rom than on the Principal (Electronic) Register.

g. On March 2, 2013,the 2^nd Respondent published on its web site a List of Voters without biometrics, amounting to 36,236 new voters. This was well after publication of the Principal Voters Register. There is no plausible legal explanation for an increase of registered voters after publication of the Principal Voters Register. Any such list is unconstitutional and illegal.

h. On March 9, 2013,the 2^nd Respondent announced the results of the presidential election. In announcing these results, there were differences from the Principal (Electronic) Register.

i. Although the differences in total numbers of registered voters may appear small in some cases, this is evidence that the 2^nd Respondent used numbers that do not mirror those in the Principal Voters Register.

j. That the Presiding Officers, (Constituency-level) Returning Officers and County Returning Officers in Forms 34, 35 and 36 respectively, were using different numbers of registered voters from that contained in the Principal (Electronic) Register, and between the different elections for President, Governor, Senator, Women’s Representative and Member of the National Assembly.

k. For instance, the respective Forms 34, 35 and 36 for Makueni Constituency (Number 086), signed by the same person, Mr. Joseph Kamandi Kittony, the County Returning Officer, applied the following different figures for registered voters: -

Elective office	Total Registered Voters applied
Number of registered voters in the Principal (Electronic) Register, in the 2^nd Respondent’s web site	64,708
President	64,708
Governor	64,877
Senator	64,879
Member of National Assembly	64,976

l. The net effect of the anomalies in the Voter Register impugn the accuracy, credibility, accountability, verifiability, integrity, validity, result, outcome and declaration by the 1^st and 2^nd Respondents of the Presidential Election.

23. THAT the electronic voter registration, identification and results transmission systems were specifically intended to protect the integrity of the individual vote by preventing multiple voter registration, multiple voting or stuffing of ballots, erroneous tallying or any other irregularities. This was a specific requirement of the Report of the Independent Review Commission on the General Elections held in Kenya on 27^th December 2007 (The Kriegler Report.) It was underscored as an essential measure to protect the integrity of the vote and prevent the kind of violence that followed the disputed election result in December 2007. It was, therefore, crucial to the implementation and enforcement of Articles 38, 81 and 86 of the Constitution.

24. THAT when fully functional, a Biometric Voter Registration (BVR) kit does three things: it provides a fool-proof register of voters; it automatically subtracts from the main national register voters who have voted and thus provides a running tally of total votes cast and is centrally integrated so that multiple voting becomes physically impossible.

25. THAT none of these features worked on voting day. First, while the BVR is supposed to be a check against multiple voting, the system did not have a subtractive value, the option that deletes the name of a person who has voted and updates the central server on the total votes cast. If this option had been built into the software and consistently applied, it would have progressively updated the list of voters around the country, and at the close of the voting, it would have been possible to immediately ascertain the exact voter turnout.

26. THAT a BVR system typically has a national data-base that is also backed up virtually. The data-base should be remotely accessible from the polling stations. In this case it was not. Having failed to do the right thing, the IEBC then resorted to the completely unsatisfactory step of downloading segments of the voter-register to the laptops that were eventually sent to polling stations. But this raises even more questions: what exactly did the IEBC download to the laptops?

27. THAT, given lack of a link to the central voter database, polling stations would not have been able to subtract those who had voted from the central database. And merely crossing out the name of the voter from the physical register at the polling station guaranteed nothing if more copies of the same register existed. In effect, there was nothing to stop double voting.

28. THAT the BVR system relied heavily on a steady supply of electricity for the laptops on which the system would be run. However, in many places no attempt was made to provide backup power beyond the life of the one battery the computer started out on. In some stations, batteries had died within one hour of the opening of the polling. A majority of polling stations had no electric power and rapidly abandoned the BVR system as the laptops had died due to lack of power.

29. THAT the 1^st and 2^nd Respondent did not meet their obligation under Article 86 (a) of the Constitution to ensure that voting and tallying was conducted using a simple system.

PARTICULARS

a. During the voter registration exercise, the Biometric Voter Registration Kits were not connected to the national Servers and database of the 2^nd Respondent.

b. The Electronic Voter Identification Devices failed to function during voting.

c. The electronic transmission of results from the presiding and returning officers failed.

30. THAT the 1^st and 2^nd Respondent did not meet their obligation under Article 86 (b) of the Constitution to ensure that voting was conducted in an accurate system.

PARTICULARS

a. In many instances, the laptop computers used for the electronic voter identification had not been charged, or could not sustain battery life

b. The electronic transmission of results failed.

c. In many instances, the necessary applications (apps) that were to be uploaded on the mobile phones had not been uploaded.

d. In many instances, the mobile phones that were to be used to transmit the results had not been charged.

e. In many instances, the mobile phones were unable to communicate with the national Servers and database of the 2^nd Respondent.

f. The electronic transmission of results produced misleading and incorrect tallying of votes.

g. After the complete failure of the electronic results transmission system, and the consequent resort to manual tallying of the votes, the 1^st and 2^nd Respondent did not put in place sufficient measures to ensure the accuracy of the vote.

h. Several instances exist where aggregate totals on Forms 36 are higher than the votes cast.

i. The 1^st and 2^nd Respondent failed to put in place appropriate policies, strategies, structures and mechanisms to manage risk, put in place contingency and back-up measures, and, in the event of failure of the electronic components of the electoral system, prevent and eliminate electoral malpractice.

j. The 1^st and 2^nd Respondent failed to put in place appropriate policies, strategies, structures and mechanisms for the safekeeping of election materials, of both a physical and electronic form.

k. In the event of failure of any or all of the electronic components of the electoral system, the 1^st and 2^nd Respondent were under obligation to recover and restore them.

l. The 1^st and 2^nd Respondent had a constitutional obligation, under Article 86(d) of the Constitution to do the above.

m. The above failures constitute culpable, and indeed, willful negligence.

31. THAT the 1^st and 2^nd Respondents did not meet their obligation under Article 86 (a) of the Constitution to ensure that voting was conducted using an accountable and verifiable system.

PARTICULARS

a. The 1^st and 2^nd Respondents failed to carry out the obligation under Article 138 (3)(c) of the Constitution to tally and verify the presidential votes cast in polling stations.

b. As a result of the failure of the electronic transmission of results there were no provisional results for verification, at the Polling, Constituency, County and national levels.

c. The 1^st and 2^nd Respondents excluded party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012, thereby precluding any credible tallying or verification.

d. The 2^nd Respondent ejected party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012.

e. On failure of the electronic transmission of results the 1^st and 2^nd Respondents had a constitutional and legal obligation to verify and then tally the presidential votes cast at all polling stations from Form 34.

f. The Kriegler Report said that it was not possible to conduct any analysis of the December 2007 elections, saying:

“The first reason is that the IREC analysis of tallying etc. in nineteen sample constituencies demonstrates convincingly that there are so many more or less erroneous constituency results…that one cannot rely on any figures from the ECK. “ (Section 6.8)

g. Similarly, there are so many irregularities on Forms 34, 35 and 36, and the entire electoral process of the 4^th March 2013 Presidential Elections, and these irregularities affected the validity, credibility, outcome, results and declaration of the election.

32. THAT the 1^st and 2^nd Respondent did not meet their obligation under Article 86 (b) of the Constitution to ensure a secure system of voting.

PARTICULARS

a. The electronic transmission of results generated a vote count that maintained a consistent gap between the two leading presidential candidates. It is scientifically impossible to maintain a consistent gap in results that are being randomly relayed.

b. The 1^st and 2^nd Respondent acknowledged that the electronic transmission of results generated rejected votes that were inaccurate.

33. THAT the 1^st and 2^nd Respondent did not meet their obligation under Articles 10, 38 and 86 (a) of the Constitution to ensure that the entire election cycle was conducted in a transparent and participatory manner.

PARTICULARS

a. Prior to the actual voting day, various citizens’ agencies sought explanations and assurances from the 1^st and 2^nd Respondents regarding their readiness and preparedness to deliver a credible, free, fair and transparent election and in most cases no response or assurance was offered.

b. While the voting was underway, and upon failure of the electronic voter identification systems, there was neither explanation nor assurance to the public, either at the Polling Stations or from the 1^st or 2^nd Respondents.

c. There was undue delay in publicly acknowledging the evident failures in the electronic results transmission system. To date there has been no explanation of the reasons for the failure, the steps taken to mitigate, or rectify, the failures or a detailed and credible assurance

d. The 1^st and 2^nd Respondents excluded party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012, thereby precluding any credible tallying or verification.

e. The 1^st and 2^nd Respondent ejected party agents and accredited Observers from the National Tallying Center, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012.

34. THAT the 2^nd Respondent did not meet its obligations under Article 86 (d) and 201 of the Constitution and Sections 102 and 105 of the Public Procurement and Disposal Act, 2005 to ensure that there were appropriate structures and mechanisms to eliminate electoral malpractices.

PARTICULARS

a. The 2^nd Respondent awarded the tender for the supply, delivery, installation, configuration, training, testing and commissioning of electronic voter identification devices to an unqualified bidder.

35. THAT the 1^st and 2^nd Respondents did not meet their obligation under Article 88 (4) (e) to settle disputes that arose subsequent to the declaration of presidential election results from constituencies.

PARTICULARS

a. The 1^st and 2^nd Respondent ejected party agents and accredited Observers from the National Tallying Center when they drew the attention of the 1^st and 2^nd Respondents to the irregularities in results from Constituencies, in violation of Regulations 84 and 85 of the Elections (General) Regulations, 2012.

36. THAT in light of the fundamental irregularities in the conduct the Presidential elections it cannot be said that it was conducted substantially in accordance with the Constitution, the Elections Act and Regulations,

37. THAT in auditing an electoral process to determine its validity, this Court will not be dealing with a mathematical puzzle and its task is not just to consider who got the highest number of votes.

38. THAT in determining whether the fundamental irregularities affected the outcome and results, the Court ought to use both qualitative and quantitative tests.

39. THAT it is the Petitioners’ case that the grounds raised in the Petition sufficiently challenge the entire electoral process and lead to a conclusion that the process was not accurate, credible, transparent, free, fair or accountable.

40. THAT it is the Petitioners’ case that in a democratic election the means by which a winner is declared plays a central role. The votes must be verifiable by the paper trail left behind. And it must be demonstrated that there exist favorable circumstances for a fair election and that no person was prejudiced by an act or omission of an election official.

41. THAT following historical experiences including the post-election violence, which resulted from a failed electoral process in 2007, the people of Kenya gave themselves a new Constitution establishing, among others, this Honorable Supreme Court, which has sui generis and exclusive jurisdiction over disputes arising from Presidential elections.

42. THAT the people of Kenya do not know, and may never know, what happened to their votes in 2007. The failures of 2007 must never be repeated. The 2010 Constitution was their promise that this will never happen again. It is the solemn responsibility of this Honourable Supreme Court to deliver that promise.

43. REASONS WHEREFORE the Petitioners pray for the following reliefs:

a. A DECLARATION that the absence of a credible Principal Voters Register vitiates the validity of the Presidential elections of 4^th March 2013.

b. A DECLARATION that the failure to verify the Presidential votes cast at the Polling Stations vitiates the validity of the Presidential elections thereby rendering it null and void.

c. A DECLARATION that the proclamation, by the 1^st and 2^nd Respondents, of the 3^rd Respondent as President-elect was invalid, and therefore that the Form 38 Certificate issued to the 3^rd Respondent is invalid.

d. AN ORDER for preservation and production of all Forms 34 and 36 related to the Presidential election.

e. AN ORDER for preservation of the computer servers and mobile phones used in the Presidential elections, and of the data in them, and their production for independent audit.

f. AN ORDERfor an independent forensic process and systems investigation of the conduct of the Presidential elections by the 2^nd Respondent.

g. AN ORDERthat the costs of the Petition be borne by the 1^st and 2^nd Respondents.

h. ANY OTHER DECLARATION OR ORDERthat the Court may deem fit, in the interests of justice.

DATED AT NAIROBI THIS 16^TH DAY OF MARCH 2013

GLADWELL WATHONI OTIENO - 1^ST PETITIONER

ZAHID RAJAN - 2^ND PETITIONER

KILONZO & COMPANY

ADVOCATES FOR THE PETITIONERS

DRAWN & FILED BY

KILONZO & COMPANY

ADVOCATES

KAY GROUP CENTER

NGONG ROAD/MUCAI DRIVE

OPPOSITE NAIROBI BAPTIST CHURCH

P.O. BOX 59839 00200 GPO

NAIROBI

COPIES TO BE SERVED ON

1. AHMED ISSACK HASSAN

ahmedissack@iebc.or.ke, info@iebc.or.ke

2. INDEPENDENT ELECTORAL BOUNDARIES COMMISSION

info@iebc.or.ke

3. UHURU MUIGAI KENYATTA

info@tna.co.ke

4. WILLIAM SAMOEI RUTO

info@tna.co.ke

LODGED IN THE REGISTRY AT NAIROBI ON THE 16th DAY OF MARCH 2013

REGISTRAR

Click here to download the petition

Open Letter to IEBC - Accountability for and Transparency of Results Verification and Premature Certification and Announcement of Alleged Official Results Without Primary Documentation

admin — Mon, 11 Mar 2013 14:03:54 +0000

Under the law, when polling stations close, ballots are counted, verified by presiding officers and political party agents and the results then posted publicly on the door of the polling stream, thereafter transmitted electronically for the announcement of provisional results by the Independent Electoral and Boundaries Commission (IEBC) at the national elections tallying centre in Nairobi. Subsequently, these results are verified and made official based on the receipt of hard documentation from the constituency returning officers and its verification by the IEBC and political party agents

Results were counted at the polling stations. The presidential results were counted first. At each polling station five original copies of Form 34 were to be signed by presiding officers and political party agents. One original was to be posted on the door to the polling station counting area and thus made public for all Kenyans. This should have been done as soon as counting ended on the evening of 4^th of March 2013 and 5^th of March 2013.

The presidential results should have been counted and posted publicly at each polling stream on Form 34 before the counting of the votes for National Assembly, Governor, Senator, County Representative and Women’s Representative—thus there should have been no controversy about the Form 34 being openly available to the public before results were announced.

The results were then meant to be transmitted electronically to Nairobi for the announcement and posting of provisional results but the IEBC electronic transmission system failed. The causes and nature of this failure have not been disclosed to the public—despite this transmission being required by law and being the first measure to guarantee securing of the integrity of the vote.

With the failure of the legally mandated system for the electronic transmission of preliminary results, the vote count from each of the polling stations must be made publicly available immediately.

Similarly, the derivative Form 36 from each constituency tallying centre must be publicly available. However, because it is a derivative document totaling the numbers from the constituency polling stations, it cannot be considered a substitute for these original forms.

Further, given systemic anomalies in Form 36 across the country noted by political party agents and observers it is imperative that these anomalies be addressed by reference to the original forms.

Because of this failure, the IEBC should follow all other required procedures for verification of the hard documentation—including allowing full and transparent access to the verification process by political party agents. This is the import and value of public participation which is a cardinal principle in the Constitution.

Yet, political party agents were expelled from the IEBC audit and verification centre, creating an unlawful climate of non-participation and lack of transparency as per the Constitution of Kenya, 2010.The IEBC has continued to then unlawfully announce final results based on Form 36 signed by agents of only one political party.

Based on this, the IEBC has failed, under Article 81(e) to administer the elections in an accurate, accountable and impartial manner—in line with its guiding constitutional principles.

We therefore demand:

That the IEBC stop announcing results until the concerns raised above can be addressed and a credible, transparent and fair process be instituted;
That the IEBC publicly explain the causes and nature of the failure of the electronic transmission system. Related to this, the IEBC should secure from the service providers the preservation of all transmissions and the servers as they were at the time of the failure;
That Form 34 containing the vote count from each polling station be made publicly available;
That the Form 36 from each constituency tallying centre be made publicly available;
Given anomalies in Form 36, that these discrepancies be addressed by reference to the original forms, which are Form 34.

Signed

Kenyans for Peace with Truth and Justice (KPTJ)

c/o Africa Centre for Open Governance

P.O. Box 18157 – 00100

Nairobi

Kenya

Download full letter here

Open Letter to IEBC on Issues of Concern Related to the March 4th Election

admin — Sun, 03 Mar 2013 15:23:59 +0000

Dear Sir,
The forthcoming elections will be a key milestone in the implementation of the new constitution, which was voted in by a majority of the Kenyan population. All institutions concerned have a constitutional duty to ensure the transparency and accountability of the electoral process. At the same time, these are the most complex and logistically challenging elections in our history.

Click here to download full press release

Response to the Recent Threats Against the Chief Justice of Kenya

admin — Sat, 23 Feb 2013 20:03:07 +0000

We, members of Kenyans for Peace with Truth and Justice (KPTJ) strongly condemn recent acts of intimidation and harassment against the person and office of the Chief Justice of the Republic of Kenya. We consider the harassment of the Chief Justice while departing the country on official duty by an immigration official as a completely unacceptable and ominous breach of the principle of the separation of powers and of the respect due to the person and the office of the Chief Justice, head of an independent arm of government.

It is ominous because of its timing, its blatancy and arrogance and the involvement of a section of the political establishment led by the Head of Public Service Francis Kimemia and the head of the National Intelligence and Security Service, Major General Gichangi. This appears to be part of a choreographed attempt by sections of the political establishment to coerce the judiciary and, by implication, other independent institutions from discharging their constitutional mandate ahead of the general elections.

The citing of a circular from the Head of Civil Service by immigration officials as the reason to bar Dr. Mutunga’s travel underscores the role of Mr. Francis Kimemia as central to the intimidation tactics. Mr. Kimemia’s role and recent statements suggest that he is in effective command and control of the state apparatus. This includes part of the security apparatus favoring that section of the political elite which is in a collision course with the judiciary and other independent institutions. We condemn the veiled intimidation of the Chief Justice by the head of the NSIS when he, curiously, called the CJ to “apologise” for the “minor hiccup” at the airport.” Maj. Gen Gichangi should explain his involvement in this egregious breach of the constitution.

We also condemn in the strongest possible terms the death threats to the Chief Justice in a letter titled ‘JUDICIARY SHOULD NOT RISK TO RULE OUT UHURU’ dated 13th February 2013, as well as the threats and criminal attacks against judges reported on by the Chief Justice in his statement yesterday. We consider this threat as well as the CJ’s harassment by immigration officials to be directly linked to a section of the political establishment which views independent institutions as an impediment to their political ambitions.

The true provenance of the letter must be established through a thorough investigation. Whatever its origin, it cannot be taken lightly. Given the recent history of the 2007-2008 Post Election Violence, it is disconcerting that shadowy and outlawed groups may be continuing to operate openly and in tandem with state apparatus to harass constitutional office holders.

The judiciary, under the guidance of the Chief Justice enjoys high rates of public confidence given the reforms undertaken in the course of his administration. This is in the wake of the new constitutional dispensation, following the 2007-2008 post- election violence which was triggered partly by low public confidence in the judiciary.
We are concerned that this may be the beginning of attempts to destabilize the country in the event that one party to the elections fails to secure power through legitimate means. It seems that there is a section of the political establishment which has not learnt the lessons of 2008, and would not hesitate to drag Kenya back into the abyss for their own selfish and cynical goals.

Taken together with other developments, such as the circulation of questionable statistical analyses purporting to assign an automatic victory to one party in the coming elections, indicators are beginning to solidify of a concerted campaign with sinister ends. Dismissing those who raise concerns as “crying wolf” is not enough. Kenyans need to be credibly reassured that the stability of the country is not at risk.

Kenyans also need to be reassured that elements of the political establishment which are under scrutiny from judicial processes and perceive independent institutions as an impediment to their political ambitions are not responsible for the death threats and harassment of the Chief Justice with the support of the state apparatus.
The history of political assassinations in Kenya leads us to take the threat seriously. We call upon the government to ensure the safety of the Chief Justice and other constitutional office holders.

Finally, it is clear that the cabal that is currently running the government is too narrowly constituted , particularly in ethnic terms, and that there is very little balance in the thinking which informs public decision making. Mr. Kimemia owes Kenyans a public accounting. He must give us his assurance that he will abide by the constitution . He should publicly explain the role of the outdated circular which gave junior officials the courage to confront the Chief Justice in the context of the new constitution. On what basis and for what reason does he purport to limit the freedom of movement of civil servants? He should publicly and unconditionally apologise to the Chief Justice and to Kenyans for this affront to the constitutional order.

It is time to reflect on how more transparency is to be injected into the oversight of the transitional process, clearly we cannot leave it to the narrow, conspiratorial cabal around the Head of the Public Service to protect the interests of Kenyans in a smooth transition which upholds the spirit of the constitution.
We demand that there be thorough and effective investigation of the issues raised by the Chief Justice. We call upon the relevant government authorities to institute disciplinary action against the immigration officials who attempted to humiliate the Chief Justice.

The government should guarantee the safety of the Chief Justice, other constitutional officers and the diplomatic community at this critical time. The vilification of the diplomatic community by senior government officials is unacceptable and exposes our partners to risk by those who may feel emboldened by such reckless rhetoric. We remind all political actors that the principle of separation of powers is clear in the constitution and that no member of the executive can interfere with the functions of an independent judiciary.
(ends 21/02/13kptj)

Click here to download the full response

Critical Concerns over the Recent Nomination Exercise: Irregularities and Failure of Institutions to Exercise their Respective Mandates to Govern Nomination and the Electoral Process

admin — Fri, 01 Feb 2013 09:38:28 +0000

We, the members of Kenyans for Peace with Truth and Justice (KPTJ), having observed and monitored the recent nomination exercise by political parties ahead of the March 4th general elections, are concerned by the extent of malpractice and lack of enforcement of election related laws by the institutions charged with enforcing political party discipline and managing the conduct of elections, i.e. the Independent Electoral and Boundaries Commission and the Registrar of Political Parties.

Click here to download the full statement

Submission to the Kenya National Dialogue and Reconciliation Team

admin — Wed, 10 Oct 2012 11:09:26 +0000

In the following we, the members of Kenyans for Peace with Truth and Justice (KPTJ), and colleagues in civil society, highlight issues which we believe should be of concern to the members of the African Union Panel of Eminent African Persons and indeed to Kenyans as we enter the decisive stretch before the elections of March 4 2013.

Download full submission here

Civil Society Says NO! to Further Extension of TJRC Mandate

admin — Thu, 13 Sep 2012 09:27:09 +0000

Kenyans for Peace, Truth and Justice (KPTJ) together with the Kenya Transitional Justice Network wish to express our serious concern with the failure of Truth, Justice and Reconciliation Commission to release its report on August 3^rd 2012 as mandated by the Law.

The Truth, Justice and Reconciliation Commission (TJRC) was established as part of the Agenda Four of the National Reconciliation and Dialogue Accord, with the objective of promoting peace, justice, national unity, healing, reconciliation and dignity among the people of Kenya, a mandate derived from the TJRC Act of 2008.

The Commission was initially established to operate for a period of two years, expiring in November 3rd, 2011. However, the Commission then sought two further extensions to May 3rd 2012 and to August 3rd 2012 acting in breach of its constituting Act. The move was not only unlawful but also procedurally flawed as it was not channeled through the National Assembly as stipulated in the TJRC Act but rather by a letter to the Ministry of Justice, National Cohesion and Constitutional Affairs. An extension was nonetheless granted, in clear contravention of the law and amid protests from the civil society.

The Law requires that on 3^rd August 2012 the TJRC hand over a report in line with Article 48 of the TJRC Act which states that;

the Report shall:

(a) summarize the findings of the Commission and make recommendations concerning the reforms and other measures, whether legal, political, or administrative as may be needed to achieve the object of the Commission;

(b) make recommendations for prosecution; reparations for the victims;

(c) recommend specific actions to be taken in furtherance of the Commission’s finding;

(d) recommend legal and administrative measures to address specific concerns identified by the Commission;

(e) make recommendations on the mechanism and framework for the implementation of its recommendations and an institutional arrangement in that connection.

We are appalled by the failure of the TJRC to fulfill its mandate by not delivering a report on the 3^rd of August 2012 and find that their actions are illegal, inexcusable, reprehensible, unacceptable and tantamount to a betrayal of the people’s trust.

We as civil society have followed keenly the work and undertakings of the TJRC in an effort to ensure that the accountability sought by Kenyans for historical injustices comes to fruition. It must not be forgotten that the victims of historical injustices, many, who testified before the commission eagerly awaited the report as they believed that this would lend credence and acknowledgement to terrible injustices they have suffered. Further, Kenyans at large believed that the commission’s report and recommendations would eliminate any future injustices and abuse of varied human rights.

We at the very least expected that the commission who has been plagued with credibility issues from the onset, would aspire to restore the people’s faith through delivery of a timely, substantial report that would ultimately serve to give closure to the victims of historical injustices.

We are taken aback that just 7 days before the deadline of 3^rd August 2012, during a meeting convened by the Constitution and Reform Education Consortium (CRECO) on Friday 27^th July 2012, the Director of Legal affairs of the TJRC, one Tom Chavangi now Acting CEO informed the stakeholders present that

“The TJRC are in Mombasa Serena finalizing the report……….we expect to deliver the report come August 3^rd 2012……… the report writing process ongoing and a report is what we should expect on the 3^rd of August should everything remain constant….

We are stunned by sudden turn of events and dismayed at the fact that not only has TJRC failed to release its report and recommendations but remains silent. We, on behalf of the people of Kenya, demand the immediate release of the findings of the TJRC and its recommendations as the mandated by the law.

We are outraged at the perpetrators of impunity in cabinet who, out of personal interest and self preservation purportedly approved the extension of the moribund TJRC. This was reported in the dailies on August 4^th August 2012. We urge the National Assembly to reject their immoral and illegal extension which is meant to deny victims and Kenyans to right to truth, justice and eventual peace.

We note that over and above the commission is technically and administratively incapacitated to purport to continue with its mandate beyond the submission of its final report. This is because the CEO and two commissioners have since left. We have it on good authority that the departure of the officials from the commission was because they believed the work of the commission was done.

We believe the delay to release the report reeks of political mischief. The calculation here is that is that the extension seeks to release the report after the next general election. Surely this is to protect possibly named perpetrators from complying with Chapter 6 of the constitution.

It is in light of the above and behalf of Kenyans that we demand:

The commission to release and submit its report its report and recommendations immediately.
The TJRC wind up immediately & hand over to the Ministry of Justice and Parliament as required by law.
The National Assembly to reject the TJRC Bill seeking to extend the life of the TJRC commission.
We call upon the ethics and anti corruption commission to investigate the gross expenditure that the TJRC has incurred due to these never ending extensions.

Finally, we are determined to use all means within the law, including moving the courts, to protect the public interest and compel the TJRC to release its report as mandated. We remind Kenyans that the failure to address historical injustices over the years plunged Kenya into chaos in 2007. A recurrence of that chaos is a risk we cannot afford to take as a nation.

(ends)

Nairobi, August 5, 2012.

Statement on the killing of Sheikh Aboud Rogo and the subsequent violence

admin — Thu, 06 Sep 2012 12:12:51 +0000

September 6, 2012: We, the Kenyans for Peace with Truth and Justice (KPTJ), a coalition of citizens and organizations working in human rights, governance and rule of law, have come together to express our concern over the killing of the Muslim cleric, Sheikh Aboud Rogo in Mombasa on Monday August 27, 2012 and the violence that ensued resulting in the burning down of churches, the injuries and loss of lives of members of our police service and loss of property of innocent by-standers. We condemn the violence and wish to deliver our condolences to the families of those affected.

The killing of Aboud Rogo is an unacceptable act that has violated the right to life, a fundamental human right protected by the Constitution. While we acknowledge that the Director of Public Prosecutions, Mr. Keriako Tobiko, has constituted a Task Force to investigate the killing of Sheikh Aboud Rogo we demand that the mandate of the task force be extended to investigate the disappearances of other Kenyans too. We also demand that due process be followed and investigations into the crimes that occurred during the protests be investigated with equal measure.

We express solidarity with the congregations of the church institutions that were mistakenly targeted by misdirected anger and empathise with them over their loss during the violence that followed Aboud Rogo’s killing: which left three people dead, three churches burned down and two others destroyed as well as the general destruction of private property in Mombasa.

Additionally, we note with concern the increase of forced disappearances and extra-judicial killings of Kenyans.

In February this year, as documented by Muslim for Human Rights and the Muslim Human Rights Forum, the disappearances of Ngoy Kayembe and Shani Lydia, both were last seen in the company of men who identified themselves as police officers.

In March this year, the removal from a bus of Samir Khan (also charged in relation to Al Shabaab) and Mohammed Kassim; by men who identified themselves as police officers. Khan's mutilated body was found in Tsavo National Park a few days later. Kassim's whereabouts remain unknown.

In May this year, the disappearances of Musa Osodo and Jacob Matheka from Molo.

Finally, in June this year: the disappearances of Steven Osaka and Jeremiah Okumu.

These are just a few of the many people recorded as missing. What they have in common is criminal charges specified to their alleged association with Al Shabaab. Similarly, they also have in common the fact that they were all last been seen in the presence of men who identified themselves as police officers-except in the cases of Osaka and Okumu who were picked up by men in civilian clothes.

Either the Kenya Police Service (or officers therein) are demonstrating grave contempt for their own investigative process, the prosecution process and the courts, or another organized criminal group is out there impersonating the Kenya Police Service and are abducting and murdering suspected Al Shabaab members at will.

We urge all to note that the youth did not cause havoc and mayhem when Rogo (or any of the above) were charged before the courts. They did not protest the judicial process.

That said; we believe that the destruction of property and Christian places of worship is a manifestation of a failed governance system because ultimately, the Government has a responsibility to ensure the security of all the members of the public. Consequently we demand that the Government undertake full investigations as to who is responsible for the destruction of property and for the violence meted out on members of the Christian community and police officers who were intervening to end the violence.

We would like the government to take note that, while we condemn the violent protests:

1. The violent reaction in Mombasa is the direct result of the pressure that has been building due to failure by the State apparatus to uphold the rule of law.

2. Kenyan youth are disenchanted and frustrated by a failed system of governance, the abuse of judicial process-through disappearances and murders and rather than follow the legal justice mechanisms, have chosen to take matters into their own hands by attacking easy targets and those they perceive to be part of the failed system.

3. The failure and delay by the government to undertake security sector reforms, which is exemplified by the absence of the appointments of an Inspector General (IG), a Deputy Inspector General (DIG) and a Police Commission - is undermining key changes that could help make the security sector more professional and more prepared to ensure sustainable security in the country.

We therefore call upon the Government:

a. To take up its responsibility of enforcing the rule of law so that such acts of lawlessness as displayed in Mombasa, Tana River and Northern Kenya are neither repeated, nor go unpunished.

b. To inform the public on what measures it is undertaking to investigate the root causes of the tension and violence witnessed in various parts of Kenya in the last month.

c. Toembark on investigations to unearth the whereabouts of the missing persons and bring the perpetrators responsible to justice.

In conclusionwe reiterate that the mayhem witnessed in Mombasa is not and should not be misconstrued as a Christian and Muslim conflict, but rather a manifestation of decayed governance and justice system; all of which require urgent fixing. The responsibility lies squarely with the state apparatus. Let Kenyans not be exploited to rebel against one another or withdraw their commitment to nurturing a truly peaceful and harmonious nation.

Finally, we appeal for calm and peaceful co-existence between the Christians and Muslims and urge Kenyans not to allow themselves to be divided along religious or ethnic lines.

Signed by:

Atsango Chesoni

Kenya Human Rights Commission (KHRC)

Sarah Muthiga

Kenyan Section of the International Commission of Jurists (ICJ-Kenya)

Joseph Muthuri

Independent Medico-Legal Unit (IMLU)

Waikwa Wanyoike

Katiba Intsitute

Carole Theuri

Africa Center for Open Governance (AfriCOG)

Download statement here

Civil Society Statement on the Controversy Surrounding the Procurement of Biometric Voter Registration System

admin — Tue, 31 Jul 2012 10:08:50 +0000

JULY 29 2012: Kenyans for Peace with Truth and Justice (KPTJ), an independent umbrella body of Kenyan civil society organizations and our colleagues in civil society including Transparency International (TI) Kenya, Constitution & Reform Education Consortium (CRE-CO), Muslim Human Rights Forum, Center for Governance and Democracy (CDG), Institute for Social Accountability (TISA) wish to express our concern over the procurement process for the Biometric Voter Registration System (BVR).

We believe that procurement of goods and services as well as the recruitment of personnel present two of the most important risk areas for the confidence of the electoral management body.

We note that the successful conclusion of free and fair elections also depends on the level of confidence that the Kenyan public has in the systems and processes of the Independent Electoral and Boundaries Commission (IEBC). As such the IEBC should conduct itself in a manner that enhances or maintains the public confidence that the IEBC currently enjoys.

We are therefore concerned that the procurement process for the Biometric Voter Registration (BVR) System as conducted so far poses the risk of diminishing the confidence levels of members of the public in the IEBC. This in turn has the potential to undermine the possibility of peaceful, free and fair elections.

While details are still unclear on what has so far transpired in the procurement process, it is apparent based on information made available by the IEBC that due diligence has been carried out on a company where it is public knowledge that it was blacklisted by competent government agencies almost a decade ago. In the absence of any information as to whether the company was cleared of any wrong doing and/or removed from the black list, it is imperative that the tender process is cancelled and a new process initiated and carried out in a manner that inspires public confidence.

We therefore wish to reiterate and demand as follows:-

1) Whether Kenya will hold peaceful, free and fair elections largely depends on the confidence that Kenyans have in the electoral management body. All processes of the IEBC should therefore inspire confidence in the electoral management body.

2) The current tender process for BVR does not inspire confidence that the process was above board and in the public interest. We therefore call for the cancellation of the tender and a re-commencement and management in a transparent and accountable manner. This was also the advice of the Public Procurement Oversight Authority.

3) Considering that only two of the shortlisted companies quoted within the budget, IEBC should re-examine the tender to determine whether it was reasonably priced to attract competent, experienced and stable BVR solution providers.

4) We further urge that an expedited way of procurement be pursued preferably by way of a restricted tender bringing together only companies that truly have a track record in providing this kind of IT solution and within very strict deadlines.

5) In the event that an expedited restricted tender is not possible within the set timelines, we strongly urge the IEBC to configure and immediately deploy the electronic registration kits used for the referendum in some constituencies in the manner outlined by the Chairman at the IEBC press conference on 24^th July 2012. It is better to take slightly longer in registration than delaying the entire exercise altogether and defaulting onthe constitutional timelines.

6) We demand that the former IEBC tender committee that resigned give Kenyans the reasons for their resignation. At such a critical stage of the process, silence on this, by the former committee members and by the IEBC does not give rise to confidence about the integrity of the process. This is information that the public has a right to.

7) We further demand that politicians stop using the issues around the procurement of the BVR kits to deliberately mislead the public and undermine the IEBC.

8) The IEBC should immediately adopt a system of maximum disclosure in all its processes as a way of keeping the public informed and engaged. For a start, we demand that the IEBC publishes for public consumption all the details, including the Evaluation Committee Report, the Tender Committee Report and correspondence relating to this procurement process.

9) We condemn strongly careless remarks associated with political operatives who would rather see the general elections delayed as much as possible. Elections must be held by 4^th of March 2013 as determined by the courts and no later than that.

Finally, we are determined to use all means within the law, including moving the courts, to protect the public interest in free and fair elections. We remind Kenyans that it was lack of confidence in the integrity of institutions such as the defunct Electoral Commission of Kenya and the old Judiciarythat plunged Kenya into chaos in 2008. A recurrence of that chaos is a risk we cannot afford to take as a nation.

In closing, we once again pledge our support of and solidarity with the IEBC and urge it to take immediate and decisive steps to strengthen public confidence in its integrity and competence; we firmly believe that it is not too late to do so

(ends)

Nairobi, July 29, 2012.

Petition to Parliament opposing a number of controversial amendment introduced and passed on June 20th and 21st, 2012

admin — Tue, 26 Jun 2012 14:12:58 +0000

On 25th June 2012 KPTJ delivered a Public Petition to Parliament opposing a number of controversial amendment introduced and passed on June 20th and 21st, 2012 through the Statute (Miscellaneous) Amendment Bill 2012.These amendments included the amendment the of the Political Parties Act 2011 to allow that current Members of Parliament (MP) and local authorities are exempt from the prohibition to declare support of another political party separate from the one which they were elected in; an amendment of the Elections Act to require that persons nominated to run for MP must be a holder of a degree from a recognized university; and an amendment of Vetting of Judges and Magistrates Act 2011 that seeks to transfer the vetting of Magistrates to the Judicial Service Commission

Download full petition here

Memo to the President: REQUEST TO DECLINE ASSENT ON MISCELLANEOUS AMENDMENT BILL 2012

admin — Tue, 26 Jun 2012 10:14:02 +0000

H.E. Hon. Mwai Kibaki, EGH, MP

President, Republic of Kenya

Harambee House,

Harambee Avenue

Nairobi, Kenya

June 25, 2012

Dear Hon. Kibaki:

RE: REQUEST TO DECLINE ASSENT ON MISCELLANEOUS AMENDMENT BILL 2012

Purpose

We, members of a number of Civil Society Organizations (CSO’s) under the umbrella of the Kenyans for Peace Truth and Justice (KPTJ) submit this memorandum to request that you do not assent to the Miscellaneous Amendment Bill 2012 (The Bill) as passed by Parliament on June 21, 2012. We are making this request as it is our strong opinion that that Bill in its current form contains a number of unconstitutional provisions. In view we would request that you decline assent and instead refer the Bill back to parliament with an advisory that parliament makes the necessary amendments to ensure that the Bill is compliant with the Constitution.

Overview

On May 10, 2012, the Attorney General, Hon. Githu Muigai (Hon. Muigai) introduced the Bill into the House. The long title of the Bill provides that it is “An Act of Parliament to make minor amendments to Statute Law.” On the same day, the Bill was referred to the relevant department committee. The Second Reading of the Bill was done in varying days starting on May 15, 2012 and ending June 6, 2012. Subsequently the Bill was committed to the Committee of the whole house. During the Committee of the whole house, held on June 20^th and 21^st, 2012, a number of very controversial amendments were introduced. These amendments included the amendment of Section 14 of the Political Parties Act 2011 to allow that current Members of Parliament (MP) and local authorities are exempt from the prohibition to declare support of another political party separate from the one which they were elected in; and an amendment to Section 22 of the Elections Act to require that persons nominated to run for MP must be a holder of a degree from a recognized university.

We believe that the enumerated amendments are all unconstitutional. Our position is that these were substantive amendments not of the nature to be considered through a miscellaneous amendment bill. Importantly, we believe because of their substantive nature, proper public participation processes should have been followed before their passage. This was not done, not even at parliament level as they were only introduced at the stage of the Committee of the whole house where public participation was not possible. Moreover, it is our contention that the requirement that a person be a holder of a degree in order to qualify as a candidate for the stated positions directly and in effect contradicts provisions of the Constitution.

The Nature and Purpose of a Miscellaneous Amendment Bill

Since the offending changes have been made through a miscellaneous amendment bill, it is important for us to briefly discuss the nature and purpose of miscellaneous amendments. In parliamentary procedure, miscellaneous amendments are used to correct errors, omissions and inconsistencies that have no policy implications in a speedy way.

The Constitution requirement for public participation in Kenya makes it extremely important that miscellaneous amendment are not used to effect amendments with major policy implications. Article 10 of the Constitution now requires that lawmaking be subjected to public participation process. Public participation is the tool that the Constitution puts in place to ensure that the public has a structured opportunity to inform the legislature of the policies it wishes to be put in place. If the legislature adopts a process that denies the public the opportunity to participate in enacting laws that have policy implication, such a process violates the Constitutional provisions on public participation and any provisions enacted through it are in effect unconstitutional. This, in our view, is the reasons why provisions passed under Miscellaneous Amendment Bill 2012, which had policy implications are unconstitutional.

The Provision Allowing Party Hopping

Section 14 of the Political Parties Act regulates resignation from political parties. It prohibits any person from belonging to more than one political party at the same time. Moreover, it provides that a person is deemed as having resigned from a political party if he/she forms or promotes the formation of another political party, or promotes the ideology, interests or policies of another political party.

On June 20, 2012, during the Committee of the whole House, parliament agreed to the amendment to Section 14 of the Political Parties Act. The amendment exempts the operation of that section in regard to the sitting MPs and members of local authorities until after the first general election held after the commencement of the Political Parties Act.

The Political Parties Act was enacted after a rigorous process of public participation. That participation included the participation of the political parties in the drafting of the initial law, participation by members of the public in providing comments on the draft bill, referral of the Political Parties Bill to the Commission on the Implementation of the Constitution (CIC) - which facilitated further public participation. Moreover, the Political Parties Bill was also considered by the relevant departmental committee of parliament

where more public participation was had. Records show that the provisions of Section 14 of the Political Parties Act were part of the content of the Act that were subjected to this rigorous public participation process. The specific provision was enacted in order to heighten party discipline which has been extremely elusive in the past.

It is our submission that party discipline is a significant policy issue. Parliament therefore erred significantly in amending Section 14 through a miscellaneous bill. Significantly, the amendment is unconstitutional because it was enacted without recourse to public participation, despite having significant policy implication.

Degree Requirement for MP’s

Parliament also amended Section 22 of the Elections Act. The amendment requires that a candidate for a MP position must be a holder of a degree from a recognized university.

This change is unconstitutional on two grounds. The first is because it was not subject to public participation process despite being a major policy shift in law.

It is also unconstitutional because it directly or in effect violates the equality sections of the Constitution. Article 27 of the Constitution prohibits discrimination on the basis of age. Article 99 provides that a person is qualified for election as MP, among other requirements that he/she is registered as a voter. Article 83 provides that every adult citizen is qualified to be registered as a voter. Article 260 defines an adult as a person who has attained the age of 18 years.

It is a fact that hardly anyone of 18 years has attained a degree qualification. In fact, given the structure of our education system, most people complete their secondary education at age 17 or 18. To obtain an undergraduate degree requires three to four calendar years. It is obvious that while the Constitution allows 18 year old to contest for an MP position, the amendment to Section 22 of the Elections Act requiring a degree effectively takes away that right. Established legal principles do not allow a statute to annul a constitutional right. The amendment is therefore in violation and cannot stand.

Additionally, Article 27 disallows discrimination on the basis of social origin. Some Kenyans continue to suffer disproportionate hardships on the basis of their social origin. Such hardships have included inability to access higher education. We therefore believe that there is strong persuasive evidence that the amendment, in effect, discriminates on the basis of social origin since a significant number of Kenyans are unable to access higher education because of their social origin.

Conclusion

In view of the foregoing we request that you exercise your powers under Article 115(1)(b) and refer the Bill back to parliament for reconsideration on the basis that it contains various unconstitutional provisions which parliament must correct before it is allowed to become law.

We thank you for your kind consideration.

Yours sincerely,

for

Kenyans for Peace with Truth and Justice

MEMBER ORGANIZATIONS OF KPTJ

Africa Centre for Open Governance (AfriCOG)
Awaaz
Bunge la Mwananchi
Centre for the Development of Marginalised Communities (CEDMAC)
Centre for Law and Research International (CLARION)
Centre for Multiparty Democracy (CMD)
Centre for Rights, Education and Awareness for Women (CREAW)
Coalition on Violence Against Women
The Cradle-the Childrens Foundation
Constitution and Reform Education Consortium (CRECO)
East African Law Society (EALS)
Fahamu
Foster National Cohesion (FONACON)
Gay And Lesbian Coalition of Kenya (GALCK)
Haki Focus
Hema la Katiba
Independent Medico-Legal Unit (IMLU)
Innovative Lawyering
Institute for Education in Democracy (IED)
International Commission of Jurists (ICJ-Kenya)
International Centre for Policy and Conflict
Kenya Human Rights Commission (KHRC)
Kenya Leadership Institute (KLI)
Kenya National Commission on Human Rights (KNCHR)
Kituo cha Sheria
Mazingira Institute
Muslim Human Rights Forum
The National Civil Society Congress
National Convention Executive Council (NCEC)
RECESSPA
Release Political Prisoners Trust
Sankara Centre
Society for International Development (SID)
The 4 CsUrgent Action Fund (UAF)-Africa

Download memo here

KPTJ Press Statement on the Amendments to the Political Parties’ and Elections Acts

admin — Fri, 22 Jun 2012 11:32:55 +0000

Kenyans for Peace with Truth and Justice (KPTJ), an independent umbrella body of Kenyan civil society organizations wish to express its opposition to the amendment of our electoral laws through the proposed Miscellaneous Amendment Bill No. 14 of 2012. This is an attempt to defraud the Kenyans who overwhelmingly voted for the supreme law, the Constitution of Kenya (2010), which enshrines the views and aspiration of the people of Kenya.

The Constitution provides that Parliament shall not confer advantages to itself and any law that grants such an advantage should only come at a later date. Section 34 of the Elections Act which reads thus: “the nomination party lists to be submitted to IEBC before the elections may not contain the name of any presidential or deputy presidential candidate nominated under the Act”. The original bill worked on by Commission for the Implementation of the Constitution (CIC) had used the stronger term “shall not” but that was watered down by MPs to “may not”. Party lists were meant to be affirmative action for the persons with disabilities, women, youth and marginalised communities in the National and County Assemblies as well as the Senate. The above proposal gravely undermines the principles of affirmative action which the Constitution aims to promote

As the Kenyan public, we read mischief in the manner and speed with which this amendment is being executed. Further, the drive to amend the Political Parties Act to give party leaders rejected by the people at the ballot a chance is a manifestation of narrow self-interests of politicians and at best perpetuation of impunity. Kenyans must rise up against these schemes by Members of Parliament to erode reform as established by the Constitution of Kenya 2010.

KPTJ would also like to remind His Excellency President Mwai Kibaki and the Right Honourable Prime Minister Raila Odinga of thecommitments they made on the 27^th August 2010 to uphold the Constitution and promote adherence to and respect for the rule of law.

KPTJ wishes to remind the Members of Parliament that the proposed amendment negates the principle of constitutionalism requiring that all governance matters and actions be limited by the Constitution as opposed to rule by the arbitrary judgment and whims of public officials. We call on the Members of the August House who are reform-oriented to reject this latest scheme to rob Kenyans of the gains made through the Constitution.

We take note that the CIC already termed these amendments as unconstitutional and we hereby support that view. Should the Bill be enacted into law we shall, together with other like-minded organizations and individuals, take legal action in courts of law, so as to uphold, defend and protect the letter and spirit of the Constitution.

In conclusion, these amendments are a manifestation of the absurdity and the lengths to which its proponents are willing to impose bad laws on Kenyans. To this end, we pledge ourselves and call upon all other Kenyans to take responsibility for the new Constitution, resist all attempts at undermining the new Constitution, and speak up and organise against the impunity, injustice and corruption that is perpetrated across this great land.

Signed this Thursday, June 21, 2012, on behalf of Kenyans for Peace with Truth and Justice,

_____________________________

Atsango Chesoni – Executive Director,

Kenya Human Rights Commission

Press statement by KPTJ regarding the ongoing debates, declarations and the ethnic mobilization aimed at the International Criminal Court and the elections process

admin — Wed, 23 May 2012 12:15:13 +0000

We, Kenyans for Peace with Truth and Justice, are concerned about the ongoing debates, declarations and the ethnic mobilization aimed at the International Criminal Court and the elections process generally. While we do recognize the right of all people to assemble and congregate in any part of the country, we are concerned and appalled by the apparent driving force and purposes of these congregations.

In the recently concluded GEMA Limuru II and the KAMATUSA meetings in Eldoret, the groups’ religious and cultural “leaders” made a raft of declarations and demands around the ICC process and the elections whose effect is to mobilize a total of 5 million signatures to lobby parliament into petitioning the UN Security Council to seek a deferral of the Kenyan cases at the ICC in order to facilitate “fair elections”.

Let us be clear. The UN Security Council only acts to defer cases at the ICC where it is convinced that there is a threat to peace. We hope the latest attempt is not meant to be a veiled warning of violence. Let it also be clear that a postponement of the trials means postponement of justice both to the accused and victims. Why are we seeking to defer justice?

Kenya has already made a highly publicised but unsuccessful attempt to influence the UN Security Council to defer the ICC cases against the original six suspects. The attempt to revive this petition by collecting signatures is an indication that the groupings, by dint of their declarations are bent on ensuring that the elections shall not be perceived to be free and fair if the Kenyan cases before the ICC are not deferred. The ICC process is a legal process and as has been noted by representatives of the Court is not premised on the electoral calendar.

Further, the declarations and the meetings are exclusive to seven (7) of the more than 40 ethnic communities in Kenya. This goes against the spirit and letter of the Constitution; the very Constitution that the two parliamentarians who are accused and several of their sympathizers swore to protect and uphold. In particular, actions that result in ethnic polarization contravene Article 10 of the Constitution, which enshrines the national values of national unity, inclusiveness and social justice.

We therefore:

· Note that the so-called “prayer meetings” are contrary to the spirit of Article 10 of the Constitution, which calls for patriotism, rule of law, national unity, social justice and inclusiveness. We commend the religious leaders who have spoken against these prayer meetings and pledged not to offer their pulpits as platforms for sowing seeds of ethnic discord.

· In unequivocal terms, condemn the ongoing ethnic mobilization and polarization, which, we note, was one of the factors that led to the 2007/8 post-election violence. In the same breath, we call upon the police and the National Cohesion and Integration Commission to monitor, investigate and prosecute any activities that may lead to ethnic polarization even if held under the auspices of “prayer” or “cultural meetings”.

· Wish to set the record straight by reminding Kenyans that the ICC is a court of law and not a political court; and that Kenyans should, therefore, not be hoodwinked into believing that a public petition can interfere with or stall the ongoing ICC cases. We urge the citizens of this country not to be drawn into any processes of building exclusive ethnic blocs for the political expediency of one or two individuals and that may cause more Kenyans to lose their lives or suffer further injustices.

· Take exception to the recent comments by the Minister for Justice, Hon. Eugene Wamalwa, to the effect that his Ministry has nothing to do with the ICC process. By virtue of its functions and mandate the Ministry of Justice, National Cohesion and Constitutional Affairs is charged with making policy on administration of justice, social justice, elections and national cohesion, which then makes it integral in the ICC process.

· Call upon the Ministry of Internal Security and Provincial Administration to play its rightful role in the implementation of the International Crimes Act, 2008.

· Call on all responsible agencies to be vigilant about the safety of the ICC witnesses in light of the recent attempts to expose presumed ICC witnesses. This should be viewed as a broader scheme aimed at defeating the ICC process through intimidation. Further, we note that this is a violation of the conditions for release set by the ICC Pre-Trial Chamber II to the accused not to directly or indirectly interfere with witnesses.

Signed:

Atsango Chesoni,

Executive Director, Kenya Human Rights Commission

KPTJ Press Statement On The Confirmation Of Charges Decision

admin — Fri, 20 Jan 2012 15:46:02 +0000

Kenyans for Peace with Truth and Justice (KPTJ), an independent umbrella body of Kenyan civil society organizations wish to express our strong support for the International Criminal Court (ICC) process on Kenya as we await the decision of the ICC Pre –Trial Chamber following the confirmation of charges hearings.

Download Press Release Here

In the wake of the disputed 2007 elections, Kenya was rocked by widespread violence involving inconceivable atrocities. Over one thousand Kenyans were killed and many more injured. Over two thousand women were raped and subjected to sexual violence, in many cases by members of the very police force that should have protected them. Kenyans in the hundreds of thousands, were displaced from their homes and lost their property. Four years on, many remain displaced, condemned to living in deplorable conditions. Further, throughout the various stages of the ICC process, victims, survivors and witnesses of post election violence have died, disappeared and/or live in constant fear due to threats against their lives and those of their loved ones as perpetrators and orchestrators of the violence have sought to suppress evidence incriminating them. We wish to urge Kenyans, the media and politicians alike to remember that this process is about the victims, both living and dead, and the survivors of brutal crimes such as rape. Unfortunately, public debate continues to focus on the fates of the main suspects, rather than the victims. This must change.

The State, in a clear dereliction of its duty, has failed to hold to account the perpetrators of the post?election violence. This triggered the intervention of the ICC and the leveling of charges against six suspects who have since undergone confirmation of charges hearings whose outcome we now await.

We note that the Court’s decision, whatever the outcome, will be an important step forward in ensuring justice for victims of the monstrous crimes that occurred during the 2007 and 2008 post?election period. We as KPTJ will accept the ruling of the ICC whether the charges are confirmed or not. We point out that all parties will be free to appeal the decision if they so wish, and that is their right, which we support. In addition the Chamber is free to call for additional evidence on any issue...

Download Press Release Here