News 2008


Probe on polls fiasco begins this week

March 12, 2008


By David Ohito

Kenyans may finally know what happened at the hotly disputed and discredited December 27 presidential election.

An Independent Review Committee begins inquiry into the election this week. The team is mandated to investigate all aspects of last year’s presidential election and make findings and recommendations to improve the electoral process.

Focus shifts to the doors of the embattled Electoral Commission of Kenya (ECK) Chairman, Mr Samuel Kivuitu, and his commissioners as they are expected to shed light on the election saga.

In the elections, President Kibaki of Party of National Unity was declared winner with a slim margin over Orange Democratic Movement candidate’s Mr Raila Odinga after garnering 4,584,721 and 4,352,993.

ODM-Kenya’s Mr Kalonzo Musyoka tailed in third position, garnering 879,903 votes. Kibaki later named him Vice-President.

The committee will be a non-judicial body made up of Kenyan and non-Kenyan electoral experts of the professional standing and integrity.

On Tuesday, details emerged how respected South African Judge, Justice Johan Christiaan Kriegler — expected in the country by the weekend — was settled on as chair.

Kriegler is also a former head of South Africa’s Independent Electoral Commission who delivered the country’s first democratic election, which was won by Nobel laureate, Mr Nelson Mandela.

The committee is expected to be credible, independent and impartial and not controlled by any party.

Its scope and terms of reference are to be gazetted on Friday to give it legal muscle.

"We want the team to have its territory clearly spelt out and its rules of procedures tabled, like in past inquiries of the Goldenberg and Ouko commissions," a source privy to the details said.

The issues to be determined include inquiry into the conduct of the ECK and the role of observers in the presidential elections, including declaration results.

It will, among other issues, address the composition of the ECK and remedial action to be undertaken to ensure it is independent, impartial and has the capacity to effectively discharge its constitutional and statutory mandate.

ODM has proposed the names of Ms Catherine Muma and Mr Francis Angila, both said to be experienced in matters electoral investigation.

The committee is expected to identify measures to help restore and sustain voter confidence in the electoral process.

Its findings would be included into the envisaged comprehensive electoral reforms.

Sources close to the Panel of Eminent African personalities, which is mediating the talks, said it was keen to ensure that the Independent Review Committee beats the March 15 deadline when it should begin work.

By Tuesday, the mediation team had recommended that the Government be tasked with finding a suitable office to house the committee.

The disputed presidential poll sucked Kenya into a political crisis characterised by widespread violence that left at least 1,000 people dead and more than 350,000 displaced.

Before he left, lead mediator, Dr Kofi Annan, said: "The truth has to be told and Kenyans have to know what happened. We agreed that the system must be reformed so that such a crisis never happens again."

The former United Nations secretary-general explained that the Independent Review Committee would help heal and reconcile the country.

The committee was settled on after it became apparent that there was no viable way to get the truth of the election saga and outcome through a recount, re-tallying or other measure.

Kriegler was born in Pretoria in 1932 and studied at King Edward Vll School in Johannesburg. He attended the South African Military Academy for two years, and then acted as a judge’s clerk while studying law at the University of Pretoria and the University of South Africa.

After obtaining his law degree in 1958, he was called to the Johannesburg Bar in 1959. Kriegler headed the Independent Electoral Commission, and was instrumental in establishing the permanent electoral commission, which he chaired until 1999.

He participated in a National Democratic Institute mission in Angola (1999), International Commission of Jurists / International Bar Association (IBA) judicial independence missions in Palestine (2000), Malawi (2002) and Uganda (2007), United Nations Development Programme (UNDP) judicial training in Namibia (2001), advocacy training in Lesotho (2001), the United Kingdom (2002), Hong Kong (2006) and South Africa (1983 to date), IBA judicial training for Iraq (2005) and Swaziland (2005) and IBA-South Africa Bar observer missions in Zimbabwe (2004), and been briefed by the United Nations Electoral Assistance Division on a number of election-related assignments in Afghanistan, East Timor, Iraq, Liberia, Pakistan and Sierra Leone.

Kriegler is the author of a textbook on criminal procedure and co-drafter of a judicial code of conduct. He has lectured on judicial and electoral matters in Angola, Belgium, Botswana, Canada, the Democratic Republic of the Congo, Mexico, Namibia, the Netherlands, Palestine, South Africa, Spain, Sudan, Switzerland, the United Arab Emirates, UK, US, West Indies, Zambia and Zimbabwe.

Under the previous South African government, Kriegler was involved in establishing human rights and public interest advocacy bodies. He took part in advocacy/transformation training with the Black Lawyers’ Association (BLA) from the early 1980s and was a founding chair of Lawyers for Human Rights (1981) and founding trustee of the Legal Resources Centre (1978).

Today, he is an extraordinary professor at the University of Pretoria Law Faculty and a trustee of the Nelson Mandela Children’s Fund, Project Literacy (adult education), the University of Pretoria Centre for Human Rights and the Aids Law Project, patron of Advocacy Training for the General Council of the Bar and chairperson of the Constitutional Court Trust.

Kriegler is an honorary life member of the Johannesburg Bar, an authority on criminal procedure and an author. He is a board member of the University of South Africa Law Faculty, board member of the University of Pretoria Institute of Human Rights Studies, and a trustee of a number of charitable trusts.

He is married and has six children and five grandchildren.