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Why Kenya is set for a constitutional crisis

I think IEBC should have allowed full access to its servers; maybe the script would be different!

The worrying thing, however, is that if the Raila led Nasa fails to have its highly touted ‘irreducible minimums’ addressed by the IEBC, then we could say the Supreme Court has put Kenya on a constitutional crisis route – a bad precedent.

With these demands – some calling for the axing of IEBC staff - who have been shelved in the ruling as innocent, anyway - revives the question of whether the ordered fresh elections would be done within the 60-day window allowed by the Constitution of Kenya.

The court's full judgement that the election should be null and void, profiled an IEBC that failed to run a legal or constitutional poll.


That notwithstanding, the management of the commission has not been implicated in anyway whatsoever. According to President Uhuru Kenyatta’s lawyer Ahmednasir Abdullahi, the Court lost its shine. He argues that the judgment brought to “an end the CJ Maraga Court’s priestly pretentions to holiness and constitutional fidelity.”

With the second ballot due by the end of October, it opens up the question of how the IEBC can be trusted to organise another national vote in the time available. Forget the bungled polls.

The latest announcement by the Opposition-battered company which provided the electronic system for the first election says time is already tight to have everything ready by the 31 October constitutional deadline.

The contested ICT system, therefore, remains hanging, and is not clear whether we will instead have a ‘mlolongo’ system for election, maybe it will serve better.


If Kenya has to stick to the use of ICT-aided voting system, it will, be at the will of the Opposition, yet the IEBC should be at no point coerced to accept any direction from the outside party, other than consulting.

With the pledge to boycott the elections by Raila Odinga team, on the other hand, puts the IEBC at crossroads, as Raila’s participation in the polls is equally critical as he actually contested the matter in court, so he should be a candidate, going forward.

The demand by the Supreme Court to have IEBC “go back to the drawing board” will no doubt bolster the Wafula Chebukati led team into more delays. Everything sticks as no one has been pinpointed in the ruling, anyway.

The IEBC chairman Wafula Chebukati was earlier directly criticised for declaring Uhuru Kenyatta the winner of the presidential poll before all the results were verified. The opposition will now argue that Mr Chebukati cannot possibly continue in his role, but the process to replace him can be long and complicated, and could go beyond the 60-days mark!

The potholes of Kenya's constitution raise more questions than answers over what happens if the vote doesn't go ahead by 31 October.


Hacked servers

In the detailed ruling, the Supreme Court judges questioned the verifiability of the poll results. It argued that not only was the IEBC process "neither transparent nor verifiable," but it "contemptuously ignored the court order" to allow scrutiny of its computer servers, in the words of the Supreme Court judgement.

The failure to allow court-appointed experts to analyse the system prompted the court to make an extraordinary judgement. A buoy for Raila Odinga!

"[It] leaves us with no option but to accept the petitioners' claims that the IEBC's IT system was infiltrated and compromised and the data therein interfered with," read Deputy Chief Justice Philomena Mwilu.

I think IEBC should have allowed full access; maybe the script would be different!


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