Story by DAVID OKWEMBAH
Publication Date: 6 January 2008
The Electoral Commission of Kenya may go to court this week to have an independent audit of the December 27 presidential ballots set up, the Sunday Nation has learnt.
An official of the beleaguered elections body confirmed that some of the 22 commissioners had agreed to seek the intervention of the High Court in setting up a team to carry out an audit of the presidential elections whose results has triggered violence, resulting into death and destruction of property. 
Samuel Kivuitu, the chairman of the Electoral Commission of Kenya, addresses a press conference in his office in Nairobi. Photo/STEPHEN MUDIARI.
Last Monday, four of the ECK commissioners called a press conference at which they suggested that a way be found to set up an independent audit of the presidential votes to determine who between President Kibaki and ODM leader Raila Odinga won the election.
Disputed polls
However, none of the parties in the disputed poll has taken up the matter, leaving ECK to try and salvage whatever good it can from a general elections judged by a majority of the observers as flawed.
The move comes amid fears that some of the commissioners had contemplated quitting following pressure from members of their various communities.
At least two of the commissioners had their houses in their rural areas razed after last Sunday’s release of the presidential election results and the swearing-in of President Kibaki.
The decision to go to court, if implemented, would open another front to the already raging dispute between Mr Odinga’s ODM and President Kibaki’s Party of National Unity.
But an assistant minister for foreign affairs and MP-elect for Sirisia Mr Moses Wetangula wondered how the ECK could originate such a motion on its own yet it is not one of the aggrieved parties.
“Once the ECK named the winner and losers in the poll they became functus officio(no longer seized of the matter). Their business was done”, the assistant minister who is also a lawyer added.
The Commission can only be enjoined in a suit filed by one of the aggrieved parties or appear as a witness, he said.
ODM is on record as having said that it was no longer interested in the re-tallying of the presidential votes claiming that key documents may have already been “doctored”.
The Law Society of Kenya last week said it would go to court this week to have the presidential poll probed by an independent body.
One of the 22 commissioners who spoke to the Sunday Nation on condition of anonymity said their petition will hinge on sections 84 and 123(8) of the Constitution.
According to Section 84 of the constitution, any Kenyan who feels that their fundamental rights have been violated can go to the High Court to seek redress.
The fundamental rights include liberty and security of persons, freedom of association, expression and the right to live and work anywhere in the country.
And section 123(8) empowers the courts to hear any matter brought before it as long as it does not contravene the country’s supreme law.
While the ECK may not have jurisdiction to originate a motion to have its own conduct examined, the elections body has found itself in an awkward situation where neither the loser nor the winner wants to go to court.
It also risks becoming irrelevant following a disastrous performance and conflicting information from its chairman, Mr Samuel Mutua Kivuitu.
The move by the ECK commissioners follows the rejection of the presidential elections polls results announced by the Mr Kivuitu last Sunday in which he named the incumbent President Mwai Kibaki as the winner.
Serious challenger
Mr Odinga, the President’s most serious challenger, has however contested the results saying he was robbed of victory. But he has refused to go to court maintaining that they are not independent.
Already the ECK is consulting South African and Ugandan poll officials on how to get out of the fix.
South African elections officials were expected in the country last Thursday on the same flight as the Nobel Peace Prize laureate Archbishop Desmond Tutu.
Also to be consulted by the ECK are judges from South Africa and Uganda who were expected to arrive in Nairobi this weekend. The judges failed to get flight connections to Nairobi due to the heavy travel during the Christmas and New year festivities.
A long-serving ECK commissioner Mr Jack Tumwa said none of the delegations from South Africa and Uganda had arrived in the country by Friday evening.
Mr Tumwa was one of the four commissioners who held a Press conference last week suggesting that a way be found to set up an independent audit team for the presidential ballots.
Sources at ECK headquarters informed the Sunday Nation that an observer mission from South Africa-The Election Institute of South Africa-had offered their proposal on the way out of the rigmarole that has become of the Kenyan election.
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