Supreme Court highlights dysfunction in IEBC, makes 7 key recommendations

The Supreme Court said that it was clear that there were legal, policy and institutional reforms that were urgently required to address the glaring shortcomings within IEBC.

IEBC Chairmani Wafula Chebukati with Vice Chairperson Juliana Cherera during a public function on July 31, 2022

The Supreme Court on Monday released the full detailed judgement on the presidential petition filed by Azimio la Umoja leader Raila Odinga explaining the reasons the election of President William Ruto was upheld.

In the judgement, the Supreme Court said it did not have the power to order the removal of IEBC chair Wafula Chebukati but made recommendations that the commission should implement.

The Supreme Court said that it was clear that there are legal, policy and institutional reforms that are urgently required to address the glaring shortcomings within IEBC.

The following are recommendations to the IEBC

Corporate governance issues

Parliament should consider enhancing the statutory and regulatory framework on the separate policy and administrative remit of IEBC.

IEBC ought to effect formal internal guidelines that delineate the policy, strategy, and oversight responsibility of the Chairperson and the Commissioners; and develop institutionalized guidelines on how to manage the separation of administrative and policy domains.

The roles of the Chairperson, Commissioners, the Chief Executive Officer, other staff and third parties should be set out in both the legislative and administrative edicts as stipulated above.

On election technology

To avoid suspicion from stakeholders, unless where and when it is necessary, access to the servers supporting the transmission and storage of Forms 34A, 34B and 34C should be restricted to IEBC staff during the election period.

IEBC should ensure that the servers supporting the elections and those serving their internal administrative work are distinct and separate.

This would then allow the Court, should the need arise, to carry out forensic imaging of the same without compromising and/or infringing any third-party agreements.

Statutory Forms

IEBC may consider simplifying and restructuring Form 34A and include a column that accounts for stray ballots.

In addition, it may consider having only one section for total valid votes. The independent body may also find it prudent to thoroughly train its Returning Officers as to what constitutes valid votes per this Court’s decision.

IEBC ought to put in place specific mechanisms to allow for special voting as contemplated under Regulation 90 of the Elections (General) Regulations 2012.

The Supreme Court also underscored the need to extend the fourteen-day limit, for purposes of efficient case management by the Court, and also, to afford the parties sufficient time to prosecute their cases.

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