I find it interesting, indeed ironic that the Supreme Court of Kenya (SCOK) has ruled against a forensic audit of the Information Technology system used by the Independent Electoral and Boundaries Commission (IEBC) in the March 4 presidential elections claiming that to do so would “jeopardize the petition.”
Justice Mohammed Ibrahim, speaking for the SCOK argued that the legal team representing the Coalition for Reform & Democracy (CORD) was “time barred” in filing the motion asking the court to compel the IEBC to allow an audit of the information technology (IT) system; adding rather curiously that the commission “cannot produce a complete IT infrastructure…before the hearings of the petitions begin on Wednesday.”
It is this uniquely Kenyan tendency of short-circuiting institutional processes, be it procurement tenders or as is the case here, comprehensive judicial review of evidence at the very root of an election petition that sours most Kenyans on these very institutions that are meant to represent their interests, impartially and comprehensively. That the Supreme Court is not willing to allow an audit, complete or partial, of the very system at the heart of the current dispute is strange to say the least and begs several questions including the following:
• While providing the “complete IT infrastructure” within a compressed time is indeed laborious, isn’t the quest for justice THE over-arching issue?
• Is the laborious nature of the request (for the complete IT infrastructure) the only reason the request was denied? Why didn’t the court allow an audit of randomly selected infrastructure components, especially those containing suspect data i.e. from constituencies that were under suspicion?
• Isn’t there the risk of missing evidence that may bolster CORD’s case or validate IEBC’s ruling?
• Doesn’t this ruling, at a minimum, give the impression of an incomplete, partial or selective hearing of the evidence thus de-legitimizing the petition process and its end result – determining who won the presidential elections of 2013?
Like all Kenyans, I want the petition resolved expeditiously and peacefully. I then want the country to move forward, regardless of the outcome but to paraphrase a saying, “partial justice is not impartial justice.” The Supreme Court is doing the country a disservice by refusing to review ALL the evidence.