Fraud probe delayed

The independent review committee (IRC) constituted to investigate alleged fraud during Kenya’s December presidential polls has had to delay its investigations until Kenyan President Mwai Kibaki and prime minister designate Raila Odinga agree on the composition of a coalition government.

IRC chairperson Justice Johann Kriegler returned to South Africa on Wednesday. In a statement, the IRC secretariat said the judge would be away for three weeks, pending the outcome of negotiations on key positions in a new government.

Since it was mooted two months ago during peace talks as part of a deal to restore political stability and democracy in Kenya, the IRC has elicited varied reactions.

Lawyers on the government side have consistently argued that the Kenyan constitution does not allow for an international probe into a national crisis.

However, Hassan Omar Hassan, the head of the election division of the Kenyan National Commission on Human Rights, believes that legal loopholes can be plugged through the composition of a functioning coalition government.

“This holds the key to unravelling the electoral fraud that brought Kenya to the brink of a civil war,” Omar said.

At present, the two sides are locked in a bitter dispute over the distribution of key ministerial and government positions.

Constitutional lawyer Amolo Otiende told the Mail & Guardian that, even before the IRC commenced its work, there were already serious doubts about whether Kriegler would be accorded the necessary cooperation “given the political potency of the dispute”.

“The international probe into Kenya’s electoral fraud starts work at a time when the culpable parties are still in office.

“The Electoral Commission of Kenya [ECK] is the subject of investigation and for there to be a credible and acceptable outcome, the chairperson of the Electoral Commission of Kenya, Samuel Kivuitu, should have stepped aside to allow for an unbiased investigation,” Otiende added.

He believes that the retention of the ECK chair and his team is an attempt to deliberately frustrate the investigators.

Omar agrees that ECK officials could be the biggest hurdle. “It is going to be difficult for the international probe to come up with irrefutable evidence of the fraud unless the ECK officials step aside,” he said.

He added: “As things stand now, it is unlikely that the ECK commissioners would allow Kriegler’s team [access] to files with incriminating information.”

Besides investigating the conduct of the polls, the team will also probe vote counting, tallying of results and organisation and structure of the 2007 elections. It will submit its findings and recommendations to the president.

Since his swearing-in two weeks ago, Kriegler has been economical with details of his mandate. Pressed to comment on Tuesday on whether the probe would complete its work within six months, the judge replied: “My grandfather used to advise me that time only runs out at the beginning, not at the end.”

The other members of the IRC are Justice Imani Daudi Aboud from Tanzania, Horacio Boneo from Argentina and Marangu M’Marete, Lucy Kambuni, Francis Ang’ila Aywa and Catherine Muyeka Mumma, all from Kenya.

The IRC is supported by the United Nations, African Union, European Union, United States and United Kingdom.

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