Raila pleaded with IEBC to declare a run-off in 2013
It was also evident that everyone earnestly hoped we would get a winner the first time round. Going through the exercise a second time, in case of a run-off, already felt unpalatable, a nightmare that everyone hoped and prayed would be avoided.
Before the evening wound up, the commissioners were in agreement that we should go ahead and finish announcing the results of the final constituencies. However, since it was late, it occurred to us that making such a critical announcement at night would probably not be such a good idea. It was no secret to Kenyans and the world, who was in the lead. From the results announced so far, it was clear that we would have a winner in the first round. It was highly unlikely that there would be a run-off.
The media were making their projections with the latest tallies that had been announced by that time. A celebratory mood was already picking up across the nation for majority of the people, with an equal measure of disappointment for those that could foresee the impending loss.
I remained in constant communication with most of the presidential candidates. Some called to make inquiries or clarify details of unfolding developments, depending on what was going on at the time.
I kept seeing incessant calls from a number I did not recognise, but I was not keen on receiving or returning the call. I had made this a habit as some of the anonymous callers ended up being annoying, with some insulting and abusing me.
After a while, I saw King’ori Mwangi walking towards me. He was the Head of Security at the Bomas of Kenya throughout the election week.
“Chairman, Uhuru Kenyatta has been trying to reach you, but he is unable to get through to you. Here, he would like to talk to you,” he said as he handed me his phone.
I realised that the missed calls I saw on my phone were from him. I may not have been duly updated by Lucy Ndung’u, the Registrar of Political Parties, on the most recent contact numbers of the presidential candidates.
“I’m sorry I missed your calls, as I do not pick up any numbers that I do not recognise,” I said as I answered his call. “It seems I was given a different phone number. I will have to save this one now.”
“That’s okay, Chairman, I understand,” he said. “I don’t want to steal anyone’s vote, but I also don’t want my votes to be stolen. Just do your work that is all I want. You have to do the right thing. I want to win fair and square. I know that we have won, we know that. But just do your job.”
“Of course, that’s why we are here as a commission. Our responsibility is to declare and announce the results of the election which reflect the will of the people,” I said.
Commissioners (Thomas) Letangule, (Yusuf) Nzibo, (Albert) Bwire, and (Abdullahi) Sharawe had left after we agreed that we would not be announcing the final results that evening. Those that remained, however, expressed concerns about delaying the announcement of the results, as Kenyans already knew who was in the lead.
We weighed the matter again. The discussion now leaned towards declaring the pending constituency results, and leaving the presidential declaration for the following day.
“It is not a good idea to keep the country in abeyance,” (Mohammed) Alawi stated. “We should declare all the remaining constituencies tonight and allow the country to prepare for the final announcement tomorrow.”
By this time, we had made the calculations for the two leading presidential candidates. Kenyatta had crossed the 50 per cent plus one threshold as required by the Constitution. Both he and Raila had met the second condition required for victory in the election, as they had garnered at least 25 per cent of the total votes in more than half of the 47 counties.
My earlier gaffe in stating that the calculation of total votes would include both valid and rejected votes seemed to have still produced a winner in the first round, in spite of the stakes that had been raised. The decision to proceed and announce the results of the remaining constituencies was unanimous among the commissioners who were present. We had agreed that at all times, there would always be a quorum of four commissioners and myself at the Bomas of Kenya to ensure that no urgent decision would be stalled.
The remaining results were announced, effectively completing the list of all constituencies. It was a great relief to have gotten that far. The thought that it would all be over in a matter of hours after I delivered the final verdict helped us all breathe much easier. The only thing that the entire nation now hang on, and which according to the law was next in line, was my declaration of the winner of the presidential election. I decided to call each of the presidential candidates to let them know what would be happening the following day to manage their expectations. The first call was to Kenyatta.
“I will be making the formal announcement on the final presidential results tomorrow, 10th March, as the commissioners have announced the final tally from all the constituencies. And congratulations, you have won the election. You are the President-elect.”
“Thank you very much, Mr. Chairman, for the good job,” he responded, delighted with the good news.
I called the Prime Minister, Raila, next and gave him the same brief.
“Prime Minister, we are going to make the official announcement of the results tomorrow. The results from the total tallies show that Uhuru Kenyatta has won and you are the runner-up. It would be a good thing, and helpful for the country if you would concede early to allow the country to...”
He cut in as I was speaking.
“No, no, no…are you sure about that? You know my team was not happy that you chased them from the tallying centre…You have not done the proper audit of the 100 constituencies we listed for the commission…”
I chimed in to give clarity on his concern.
“Prime Minister, we actually did, and we sent you the letter after the audit was done. That is the reason we have taken all the time to give you a hearing on all your pleas so far. We know that you have fought for democracy and liberation for many years, and your efforts towards delivering the new Constitution have also not gone unnoticed. Please do not spoil your legacy by rejecting what the people have decided. I know that in spite of the technical failure on the commission’s part, we have taken all the time to count the votes manually, and it is a credible job – as you have witnessed with the election of all the governors, senators and the rest of the leaders who have won fairly in CORD.”
Our conversation took quite some time, and he seemed convinced at the end to accept my proposal to concede. A comment that he made before we concluded the call, however, piqued my interest.
“The entire country expected that we would go for a second round, and now you are saying that Uhuru has won in the first round. It will be good for you and the commission if we went for a second round,” he said.
I sensed there was much more to that statement, though I did not give it much attention then. I went on to call each of the remaining presidential candidates—Musalia Mudavadi, Peter Kenneth of Eagle Alliance, Mohammed Abduba Dida of Alliance for Real Change, Martha Karua of National Rainbow Coalition – Kenya, James ole Kiyapi of Restore and Build Kenya, and Paul Muite of Safina party.
I did not reach all of them, as it was understandably late in the night. I followed up with calls the next day for those I couldn’t reach. My message to each of them was the same – that we were going to announce the President-elect and that it would be advisable if they could concede early before the declaration was made.
A short while later, I received a breaking news text message indicating that Raila had called for a press briefing, and the media were headed to his home in Karen. I believed that it would only be a matter of time before he gave his concession speech. About half an hour later, I received another text message indicating that the press briefing had been cancelled. I learnt much later that CORD political leaders disagreed on the matter, insisting that he should not concede. They wanted to exhaust every avenue available to them.
There was little we could do about it, as it was their constitutional right to raise any dispute they had with the courts. The Elections Act, 2011, guided the commission in the ‘Determination and declaration of results’ under Section 39(2): Before determining and declaring the final results of an election under subsection (1), the Commission may announce the provisional results of an election.
Further, under Section 82, which gave guidelines on ‘Provisional results to be transmitted electronically’, the commission was duly guided as follows: (1) The presiding officer shall, before ferrying the actual results of the election to the returning officer at the tallying venue, submit to the returning officer the results in electronic form, in such a manner as the commission may direct, and (2) The results submitted under sub-regulation (1) shall be provisional and subject to confirmation after the procedure described in regulation 73.
The guidelines were clear that the results being transmitted through the ERTS were provisional, as the system had been integrated into our processes mainly to improve transparency.
Whether the ERTS had worked at 100 per cent, or not, as was the case for us, I would not have declared the winner of the presidential election based on the provisional results. I would still have waited, as we did, for all the returning officers to bring their hard copy results to the tallying centre for verification before the final announcement. While I cannot downplay the dismal performance of the ERTS, which was regrettable and disappointing, the furore CORD and their followers raised blew things out of proportion.
The commission was vilified when we announced that our returning officers were on their way to Bomas with the hard copy results for verification. The uproar led to an outcry across the country, disparaging the commission, which was simply following the law.
