Recommended Reading: The CSO Petition

The petition of the Civil Society Organizations of November 6 against the conduct of the fresh Presidential election in Kenya raises serious questions about the behaviour of the IEBC, Independent Electoral and Boundaries Commission. Reading from our download page is highly recommended; the words speak for themselves and contain many arguments that could not reported in the national media. The other parties have to submit their replies to the Supreme Court by this afternoon, Sunday, November 12 and replies to the replies until Monday, Nov. 13 They are invited to send us their files to make them available to media for first-hand scrutiny by sending them to editors (at ) roggkenya.org.

After the Election: Tranquillity through the Courts

What next after the Kenyan Presidential Election? This Interview with election law Expert Steve Ogolla was conducted after the election day, but before the declaration of results by the Election Commission IEBC.

RoGGKenya: Is it correct to postpone the election in Nyanza counties indefinitely, as of today, Saturday, Oct 28, 2017? Continue reading “After the Election: Tranquillity through the Courts”

How legal is the Kenyan “Resistance Movement?”

A scrutiny with election law expert Steve Ogolla on Roggkenya.org

 

Q: Just a day before the repeat Kenya’s Presidential Election, the opposition, the NASA coalition, has declared to transform itself into a “resistance movement.” And promptly, during election day we have seen NASA supporters set up illegal blocks on highways under that name of a legitimate resistance movement. So, is a resistance movement some kind of a warlord army that operates outside of the law?

 

A: The fact that NASA is using the phrase “national resistance movement” does not necessarily make it a military or violent movement, Continue reading “How legal is the Kenyan “Resistance Movement?””

Supreme Court of Kenya to postpone the Election? – a legal assessment by Steve Ogolla

A group of civil society organizations has filed a case in the Supreme Court on Tuesday, Oct. 24, 2017, seeking an interpretation whether the Kenyan Presidential election of Oct. 26 can be postponed or not. The interview below was conducted on the same day and reflects what the effect of the petition could have been. But the Supreme Court did not meet the minimum quorum of judges to conduct a hearing on the eve of election day. Some arguments of the petition, however, could apply to post-election petitions as well. A link to the petition text is under the interview text.

Question (RoGGKenya): There are already several other petitions seeking a postponement of the Presidential election that is scheduled for Thursday 6 a.m., which is in less then two days from now. What is new to this one?

Continue reading “Supreme Court of Kenya to postpone the Election? – a legal assessment by Steve Ogolla”

Five legal Paths to “No-Election” on October 26

Legal expert Steve Ogolla has identified with us five legal ways why the election day Oct.26 might be canceled by a court and has weighed the likeliness of such decisions. To shed light on the heated debate, we are leaving out all the political arguments for and against a postponement and just cite the legal arguments.
When reporting as a journalist, kindly ponder the original sources linked below.

Continue reading “Five legal Paths to “No-Election” on October 26″

What if the IEBC postpones the Election in one Constituency?

Interview with Steve Ogolla, Election Law Expert

RoGGKenya
Last Saturday, a new threat of the opposition to prevent the fresh Presidential election on October 26 has emerged. It is different from the boycott threat that a constituency does not vote at all, with the effect of making it an invalid election that was not conducted in all constituencies, as required by Art. 138(2) of the constitution.
The new threat is to violently prevent the voting procedure itself. According to media reports, the IEBC has replied that they can postpone the elections in a constituency out of security concerns.
So: What if the voting in parts of Kenya has to be postponed and finally does not happen? What are the legal consequences?

Ogolla Actually this would a be a clever way of the IEBC helping UHURU to be declared president due to a “suspended” election.
If the election is suspended in a constituency it means results may be declared based on what has been received in the rest of the country. But IEBC must show that there’s actual violence. The law says this is a violent disruption of the election at polling stations. Not violence in homes, villages, or marketplaces far off from polling stations. The Section of the Elections act requires sound judgment, applied judiciously, not based on personal discretion.

RoGGKenya Meaning in simple words: The IEBC has to go to court to decide it?

Ogolla Not necessarily. IEBC is not allowed to postpone election based on rumors and guesswork or passion and discretion.
There must be evidence publicly available, not secretly known to Intelligence agencies. The clearest evidence is an open attack at polling stations or political leaders publicly declaring that they will not allow IEBC to open polling stations. This kind of threshold is difficult to achieve.

RoGGKenya That is confusing. The constitution prescribes that elections have to be held in each constituency to be valid. And now there can be a case where I looked it up, Section 55B(3) of the Elections Act allows the IEBC to declare a president to be elected even when we have not seen any votes from one specific constituency?

Ogolla Yes, that seems to be a contradiction, and it can be challenged in court. Nobody has so far challenged this section of the Elections Act, so we do not know if it is constitutional. It actually overrides Article 138(2) of the constitution. If NASA was wise they could even now preemptively rush to the High Court to interpret the law and tell us, if Section 55B(3) can be applied in a case of a postponement in one constituency. And the IEBC as an institution could ask the Supreme Court for this clarification.

RoGGKenya And if both don’t do it?

Ogolla Then, after a situation of postponement, the IEBC could act upon Elections Act Sec. 55 B(3) and declare one of the candidates the winner if, as this paragraph says, the commission is “satisfied that the result of the elections will not be affected by voting in the area” – for example, if a constituency has 100,000 registered voters, and the winner leads by 300,000 votes in the rest of the country.

RoGGKenya And that would be the final result of the election?

Ogolla Not necessarily. That could also be challenged in court, with the same arguments. But in this case, the new President would have been declared already. In contrast to a case of a successful boycott. If there is not a single vote in one of the constituencies on election day, the IEBC chairman is not allowed to declare any winner.
But now that IEBC has disclosed the possibility of stopping the election in a constituency due to violence, then NASA might ensure people don’t vote in a certain constituency even without violence.

………………………………..

Direct links to the legal sources mentioned:
Sec 55B Elections Act
Art. 138 (2) of the Constitution

How to report on the Fresh Elections – Discussion in Nakuru

On Saturday, October 14, Journalists in Nakuru are cordially invited to discuss with top legal expert Steve Ogolla the consequences of the legal developments around the fresh elections for our reporting in the media. The discussion will take place from 9 a.m. to 2 p.m. at Hotel Cathay, Tom Mboya Street. The place is restricted. Please register here.

Peaceful Means first. Rules for Police Force and Firearm Use

Police may use force if it is necessary to protect law and order – that is a truism. But like almost everywhere in the world, Kenyan police are bound by some rather strict laws about when and how to use force. The law says, in short:
1. Non-violent means shall always be used as long as they are effective.
2. All non-violent means may only be used to an extent and have to be proportional to the objective that is to be achieved.
3. Firearms … Continue reading “Peaceful Means first. Rules for Police Force and Firearm Use”

ELOG confirms IEBC Presidential Tallying Results

The Elections Observations Group (ELOG) has released the results of its Parallel Vote Tabulation of the Kenyan Presidential Elections. They match with the official results of the Independent Electoral and Boundaries Commission (IEBC). It is now up to the opposition to specify why they think the election was manipulated. Not in the database, but through the filled-out forms 34A, B, C that were also used for the ELOG study through their observers who were present at the polling stations.

As we have written in our guide “How to check on Rigging Claims“, Parallel Vote Tallying (PVT) is based on a large sample of polling stations from all over the country that is representative enough to forecast the result from the tallying of the total number of polling stations. We have only seen publication through social media but this is what we found on the ELOG website, and we uploaded the pdf file with the ELOG information here: ELOG-PVT_Verification-statement

Just Days before the Polls IEBC starts reading its own Regulations

Up until August 3, just five days before the elections, it seemed to be common knowledge “in the public domain”, that unstamped ballot papers are invalid. This is not true. Regulation 77 does not list a missing stamp on a ballot to be one of the reasons for the rejection of a ballot. IEBC’s Ezra Chiloba noticed this and wrote to his staff advising both the presiding and returning officers that “they may not reject a ballot paper for the reason that it is not stamped.” Continue reading “Just Days before the Polls IEBC starts reading its own Regulations”

The Candidates at your Fingertips

For your reporting needs, we have compiled the complete lists of the candidates vying for various electoral positions in the Kenyan August 8th elections. This list is a handy tool both on the road and in your newsroom. You may download the complete list as Excel-File. Or you access the lists for the different electoral positions in easily readable tables on your smartphone. Explore it here, we doubt you will get anywhere else with a faster or better overview.

Late Accreditation even without MCK Card

The IEBC Rules simply cannot apply to Media covering the elections

Media representatives who missed the deadline to apply for accreditation by the electoral commission to cover this year’s polls still have a chance to get their cards. And although IEBC states otherwise, they may try to do it even without valid Media Council of Kenya accreditation, because in the light of the laws and regulation it is uncertain if the Kenyan Independent Electoral and Boundaries Commission (IEBC) can uphold its stance, a RoGGKenya investigation has established. Continue reading “Late Accreditation even without MCK Card”

KPMG Audit has found serious Security Problems

The voter register audit has indicated serious problems in database controls and infrastructure security. But looking at what was publishedby the Kenya electoral body, Independent Electoral and Boundaries Commission (IEBC), the respective chapter and the whole annex of the report has been left out. The executive summary, however, lists serious issues that at least in April 2017, at the time of the audit, were endangering the operations and integrity of the voters register and its operations. Continue reading “KPMG Audit has found serious Security Problems”

Get your IEBC media accreditation ASAP!

Without an IEBC media accreditation, no journalist will be allowed to enter the polling stations and tallying centers during 2017 General Elections in Kenya on August 8 and thereafter. Earlier the IEBC had stated that media can apply for accredition for election reporting from June 2, 2017. But so far no accreditation has been issued. Now we find an update on the IEBC website that suggests it would be best to send them an email to info@iebc.or.ke by today!

Continue reading “Get your IEBC media accreditation ASAP!”

Exclusively online here: Elections Regulations – 2017 version

Detailed procedures that must be followed in the election process are laid down in the Elections Regulations, as required by the Elections Act. Our editorial team at RoGGKenya has been anxiously waiting for the publication of the amended general regulations which has now been published – only four weeks to the General Elections. We will now merge the two official documents: the regulations as of 2016 and the amendments of 2017. Continue reading “Exclusively online here: Elections Regulations – 2017 version”

How to find Data that has disappeared on the Web

New on RoGGKenya. On the example of the deleted website of the Constituencies Development Fund we demonstrate how you can find data that was once published on this site. You can do this via search engines like Google or – months and years later – with the engines of archive.org. Read our page in the Web search hints section of RoGGKenya.org. A website is offline. But you can still find a lot.

Demand the full KPMG report on Voter Register

On June 9 Independent Electoral and Boundaries Commission (IEBC)  published an eleven paged press release on the outcome of the KPMG audit of the voters register. At first glance, the release seemed quite comprehensive as it included figures, charts and words on many aspects of the audit. But this picture is misleading. Important aspects are missing. Media and the public should demand the original file that the audit firm submitted to IEBC. (Edit: On July 7, the full audit report still is not online. See below.) Continue reading “Demand the full KPMG report on Voter Register”

Detailed Election Technology information disappeared on IEBC website

On our elections reporting pages, we are now publishing what seems to have disappeared on the IEBC website last week. That is, a more detailed information on the election technologies that IEBC will be using in the August 2017 general elections in Kenya. As of February 23 information given on this page reflects IEBC’s plans and views of the electoral process (as per what we gathered from their website on that date). Critical views of the electoral process and technology have not been included on this page. (status: June 19, 2017). See the page on our elections reporting section. We will update it over time with more information that may be of interest for the media.

Big Surprises in Jubilee Nomination Rules

Did you know that every Kenyan is entitled to vote in the Jubilee Primaries and not just party members? Did you see the party register open for corrections, which should be open in the two weeks before the exercise? The Jubilee Party Nomination Rules, which we finally received yesterday, contain major surprises for all those who observed the primaries in the last eight days. We have uploaded the rules to RoGGKenya for all media to look at. The rules are also of interest to all aspirants who want to challenge their defeat.

Continue reading “Big Surprises in Jubilee Nomination Rules”

IEBC Gazettement of Aspirants has huge Gaps

The list of aspirants for Kenyan political parties primaries as gazetted by the IEBC was grossly incomplete. IEBC has confirmed today what RoGGKenya editors had found out on Friday, April 21: Missing in the 305 pages file were the Jubilee aspirants of 390 wards* in the 17 counties that follow Nairobi in the alphabet. All aspirants that are vying on a KANU ticket were also not gazetted.

It is unclear to us what the consequences would be if somebody challenged the legality of the primaries on the basis that some aspirants were yet to be gazetted 12 days after the primaries start date of April 12. Continue reading “IEBC Gazettement of Aspirants has huge Gaps”

ODM Primaries – when Rules seem to fail

Do ODM nomination rules themselves pose a problem or is it their implementation by the ODM National Election Board and the regional bodies? When we scrutinized the party’s Election and Nomination Rules of the Orange Democratic Movement of Kenya (ODM) we found: ODM is not fully following its own nomination rules. Continue reading “ODM Primaries – when Rules seem to fail”

IEBC ends Voter Registration before consitutional Timeliness

The Independent Electoral and Boundaries Commission (IEBC) has controversially suspended the enlisting of new voters until September 6, a month after the general election. It is to be doubted if this was legal – and if it will be challenged by anybody in court.

In a Kenya Gazette notice dated February 23, the chair Mr Wafula Chebukati says: “The IEBC gives notice that the application for new registration and change in registration of voters in Kenya and for Kenyan citizens living outside the country shall be suspended from March 7, 2017, and to be reopened on September 6, 2017.” Continue reading “IEBC ends Voter Registration before consitutional Timeliness”

Can the EACC “clear” candidates? Probably not.

One thing that we at RoGGKenya do as a service to our fellow journalists is that we try to locate the rule of law for what Kenyan authorities are doing – or should do.
And now it is the action of the EACC, the main agency that fights corruption in Kenya, that is in question. Two major developments are in the news where EACC is involved.

Continue reading “Can the EACC “clear” candidates? Probably not.”

Amnesty International warning outdated?

RoGGKenya could not verify an Amnesty International allegation that Kenyan MPs were sneaking an amendment into a law which would change the IPOA Act so that the police could easily find pretexts to withhold information from the Independent Policing Oversight Authority (IPOA). The AI East Africa Researcher had raised alarm over the National Assembly’s Miscellaneous Amendments Bill, 2016, which (he wrote) contained such a provision. Continue reading “Amnesty International warning outdated?”

New Amnesty Internation Report lists serious Complaints about Kenya

The Amnesty International Report on the state of the world’s human rights has just been released. It lists several issues of serious concern about Kenya, including extrajudicial killings and disappearances, corruption, human rights violations in counter-terror actions, the intimidation and harassment of journalists, bloggers and other members of civil society as well as forced evictions from homes and repression against Somali refugees. Continue reading “New Amnesty Internation Report lists serious Complaints about Kenya”

Illegal threats during Elections – including Witchcraft

An earlier post on RoGGKenya.org has to be taken even more seriously than we have thought. We stated in the post that witchcraft is illegal in Kenya, and we thought this was just a minor issue. We could barely imagine that a politician would actually threaten citizens with witchcraft if they don’t cast their votes the way this politician likes. The Star Newspaper quoted Tigania East MP Mpuri Aburi saying, “If you don’t vote for Kiraitu (as governor in Meru) and he (the witch doctor) points at you, you are no more”. This actually means the politician is threatening all those among the voters with death who – against all reason and evidence – believe in the effectiveness of witchcraft. Continue reading “Illegal threats during Elections – including Witchcraft”

Systematic “Crack Down on NGOs”, and a non-gazetted Act

United Natioins human rights experts have warned Kenya that “it appears that there is a systematic and deliberate pattern to crack down on civil society groups which challenge governmental policies, educate voters, investigate human rights abuses and uncover corruption. These issues are extremely important in a democracy, and attempting to shut down the debate taking place in the civic space threatens to irreparably taint the legitimacy of the upcoming elections,” (Original source of the press release, external link). Journalists may follow up on that warning with useful reports: Continue reading “Systematic “Crack Down on NGOs”, and a non-gazetted Act”

Voter Registration cannot end before May

No state agency, no independent commission can change the law. The IEBC is no exemption. Their mass voter registration drive may end today, Feb. 14, 2017. Which is legitimate. But voter registration itself cannot end on that day. Every adult Kenyan citizen has the right to register to vote until 90 days before the election date. This is what the Elections Act states in Section 5 (1) (a). This means that the state agencies have to make sure that they can accept these late registrations until that date AND comply with the other law provisions like for example the opening of the register for check by the general public (Sec. 9, Elections Act) Continue reading “Voter Registration cannot end before May”

IEBC Information Policy – better, but not perfect

We have seen an upsurge in information policy after the new commissioners of the Kenyan IEBC took office. Since January 2017, the Independent Electoral and Boundaries Commission has published 11 press releases and a number of other news – along with data that was  useful and worth analyzing. To see what this data is good for, read our last post on the concentration of faulty voter data in certain wards and constituencies that is based on the data from one of the press releases. Continue reading “IEBC Information Policy – better, but not perfect”

Wards in Nyanza Hotspots of wrong Voter Data

Cases of faulty voter registration to the 2017 Kenya general elections are concentrated in certain wards in Kisumu East, Siaya, and Homa Bay. This is apparent in the IEBC data released last Saturday, Feb. 4, 2016. These wards are all located in the region of Nyanza – followed by some wards in Nairobi. The cases IEBC published constitute either mismatch of the given IDs with the ones in the National Registration Bureau or double (and more) registrations. Continue reading “Wards in Nyanza Hotspots of wrong Voter Data”

NEW: Billions Unaccounted For in CDF Audit

Members of the national assembly cannot account for billions of money allocated to the constituency development fund (CDF) kitty in the latest report by the auditor general.

The latest revelation is likely to shift focus to the Members of parliament who have been blaming and castigating Governors for presiding over massive looting in counties.

The audit report which covers the FY2013/2014 shows massive irregularities in the use of funds under CDF with at least 270 out of the 290 constituencies being unable to provide documents to support the expenditure of over sh3.85 billion under CDF – the multibillion-shilling kitty that MPs get to implement community projects within their constituencies. http://www.kenao.go.ke/-cdf

In some constituencies, the auditor indicted the CDF committees for failing to keep books of accounts, and issued a “disclaimer opinion” meaning, there was no way he could tell how much money had actually been spent, and how much could not be accounted for. The PFM Act clearly spells out how a public entity is supposed to spend money and how the expenditure is supposed to be accounted for. Continue reading “NEW: Billions Unaccounted For in CDF Audit”

Safeguarding against Fires – Update

Dear colleagues in Bungoma County. We have an update to our earlier post.

According to unnamed sources within the Bungoma County Administration the County’s fire squad does possess foam for fighting petrol accidents – but the fire truck could not move to the accident. The reason being that one driver had “the key” with him when he stayed at Eldoret during the time of the explosion. Continue reading “Safeguarding against Fires – Update”

New Auditor General Reports – and how to interpret them

There are even more Auditor  General Reports on the Counties online by now. After the reports on the county governments those on the county assemblies have been added to the Kenao.go.ke-Website (see link below). For their interpretation: the reports of the Kenyan Auditor General mostly contain quite technical language that should be known by those who report on the content. Continue reading “New Auditor General Reports – and how to interpret them”

Asking Questions About Police Malpractice

How easy is it in Kenya for a criminal to fetch weapons from the state? Seven police rifles and other ammunition were robbed last week from a police post in Mumias. Radio, TV stations, and newspapers reported widely on the robbery as well as on the brutal police raids that followed and – as reported – have badly damaged people’s lives and property.

But why don’t we see the follow-up questions being asked? Continue reading “Asking Questions About Police Malpractice”

Auditor General Reports for 2014/15 finally online

The Auditor General reports for the national government and counties for FY2014/2015 are out giving reporters an opportunity to follow key leads to develop exclusive stories.

Reporters can easily access the audit reports which point to glaring misuse of public funds and at times diversion of funds to non core areas. The reports are already online and can be downloaded from the auditor General’s website direct link: http://www.kenao.go.ke Continue reading “Auditor General Reports for 2014/15 finally online”

Budgets for Next Year may be illegal in Kenya

Budget making in the Kenyan nation and counties is far behind schedule, raising fears that these most important documents for the financial year 2017/2018 may finally be illegal. Parliament and County Assemblies have been already waiting as long as 13 weeks for pivotal papers needed for a responsible decision making process. This makes it more and more unlikely that the budgets and the necessary appropriation bills will be duly passed by March 31 as a National Treasury circular provides.

Continue reading “Budgets for Next Year may be illegal in Kenya”

Suggested Story: How well are Kenyans protected against petrol accidents?

This is a story for you: How well prepared, equipped and trained are Kenya’s firefighters and police to handle road accidents involving petrol trucks? (updated Dec. 12 – see bottom)

A major accident that occurred last Saturday along the Eldoret-Malaba-Uganda highway raises serious questions. A petroleum truck overturned and exploded thereby releasing tones of petrol that began burning because it was probably not properly contained. That put hundreds of local residents in serious danger because they had flocked to siphon the fuel leaking out of the truck.

Soil and water resources were also severely affected. The police and firefighters had an agonizing task of trying to get things in order. And while the truck was still burning other petrol trucks were allowed to pass near the site just ten meters away. Read your investigative research questions as a journalist at the end of the article. Continue reading “Suggested Story: How well are Kenyans protected against petrol accidents?”

“Curses” are illegal according to a 91 Year old Kenyan Law

Well, this might not be the most important story about good governance, but anyway: It seems to be fashionable especially for elders to threaten to “curse” someone who misbehaves according to them. If you have time and would like to do a fairly unsusual story about those who threaten: Look at the Kenyan Witchcraft Act of 1925 which is still in place and ask if these people have violated that act. They could probably be fined and incarcerated for a while.

Here are cases of the recent past…

Maasai elders threaten to curse Raila.
Pokot Council of Elders threatens to curse leaders who incite youth
Gusii elders threaten to curse those who expose nude pictures of their politicians

Don’t all these elders hold themselves out as a
“witchdoctor able to cause fear, annoyance or injury to another in mind, person or property”?
Don’t they pretend to
“exercise any kind of supernatural power … to cause such fear…”?

(Quotes are from Sec. 2 of the Witchcraft Act)

Here’s the link to the Witchcraft Act

If Amber Rudd was a Kenyan the Minister would step down

British minister of interior Amber Rudd would face investigation and possibly prosecution by the EACC – if she was a Kenyan minister.

If the Kenyan laws were enforced and to be followed worldwide, corruption would have little room. Because the laws are very good, even compared to other countries.
Just a few examples of September 2016:
EU commissioner Neelie Kroos seems to have violated EU rules by being a director of “Mint Holders Ltd.” on the Bahamas and not revealing it to the EU offices. But in Kenya this would be a serious offence.

Continue reading “If Amber Rudd was a Kenyan the Minister would step down”