During the hearing of the petition that will be filed on Monday next week, it is my contention that besides the determination of the disputed elections, the other component of the trial will be the IEBC being tried at the Supreme Court given it is being tried in the court of public opinion. We need the trial of the Supreme Court to know how to deal with the IEBC.

It is not lost on Kenyans that this commission gobbled a whole 9 billion procuring electronic equipment which only worked for a couple of hours on election day then collapsed. This is besides the money they have continued to rake in as recurrent expenditures, logistics, voter education etc.

It is not lost on Kenyans that the same commissioners through its Chair reassured Kenyans that they had tested through mock elections these equipment before the elections. It is not lost on Kenyans that on election tallying and relaying results, the commissioners called a press conference, played the National Anthem, told Kenyans the system had collapsed and that they had resorted to manual systems. They acknowledged errors here and there and that whenever such errors were pointed out, they corrected the same (never mind whose job it was to ensure no such errors occur or the fact that some errors may not have been detected by the so called agents of political parties). They then absolved Safaricom of any culpability.To date, they have not told Kenyans who was responsible for these failures. Was it the suppliers of the equipment? What recourse do Kenyans whose taxes were spent on these fakes have? This in itself is a tacit admission that we were operating on a flawed and erroneous system. The IEBC is yet to tell Kenyans what "failures" it is that rendered the biometric systems to fail, from the voter identification device to the phones for relaying the results electronically.

It is not lost on Kenyans the way the commissioners contradicted themselves when one announced the results relaying would stop at one point and begin the following day after verification, and after they had rested only for other commissioners to continue with the same exercise. Media houses are now reporting that some commissioners were opposed to the way the verification and relaying of results was being conducted. These are key issues the Supreme Court will need to delve into.

With all this in mind, it will not only be within the Supreme Court’s jurisdiction to establish the credibility of the results but also to find those culpable for commission or omissions. We cannot as a country continue having officers who make "mistakes" with serious exercises and only get away with slaps on their wrists like the defunct ECK did when Kenyans lost their lives as a result of their sloppiness and tardiness while they draw millions in salaries every year.

It will be important for the Supreme Court to establish culpability and recommend, as per the elections Act, appropriate punishments for election offenders. We must stop this culture of 'errors and mistakes" every election year which erodes the democracy that we have fought for hard. We must ensure that our constitution is respected at all times.

This presidential petition will serve two things, it will either vindicate Right Hon Prime Minister and his CORD team that these elections were deliberately and irredeemably flawed by certain individuals within the commission and government systems or it will allay such fears in which case it will fortify legitimacy for Hon Uhuru Kenyatta as duly elected president of Kenya as per the constitution. Either way, we need to go through this process because it is part of the electoral process of resolving disputes arising in a civilized way.

This is why I have maintained that we cannot begin talking about "moving on" and the cost of a rerun because we cannot keep moving on with malpractices and electoral bungling baggage that destroy the very credibility of the institution mandated to manage the elections. If democracy was cheap, we would simply be doing acclamation instead of secret ballot.

This is why besides the determination of the legitimacy of the process, folks at IEBC must be made to carry individual responsibility for whatever went wrong and appropriate laws invoked to deal with them and ensure no such sloppiness happen in the future. It already cost lives in 2007/08.

This is the only way to cure our electoral process.

By Otieno Sungu.
[email protected]
Vugu Vugu Mashinani (VVM).