Monday, August 25, 2008 - Verbatim recording 25th August 2008 (Afternoon)

RECORD OF EVIDENCE TAKEN BEFORE THE COMMISSION OF INQUIRY

INTO POST-ELECTION VIOLENCE (CIPEV) ON 25th AUGUST, 2008 AT KICC

CORAM

Hon. Justice P. N. Waki – Chairman

Mr. G. McFadyen – Commissioner
Mr. P. Kambale – Commissioner

SECRETARY
Mr. George Kegoro

COUNSEL
Mr. D. Majanja – Counsel Assisting

At Shimba Hills Hall

Time: 2:00 p.m.

Chairman: Welcome to the afternoon session. May we have the next witness, please?

David Majanja: My Lord, commission witness number 135, the Commission Chairman
Mr. Samuel Kivuitu.

Samuel Kivuitu: I swear by the Almighty God and before this Commission, that the
evidence I will give to this Commission, touching on the matters in question shall be the
truth, nothing but the whole truth, so help me God.

David Majanja: My Lords, I'm informed that the Commission would like to present a
PowerPoint, but that will be done by Commissioner Matagaro, so I'll just introduce him
then step him down so that Mr. Matagaro [indiscernible]. Just for the purpose of the
record just inform the Commission your full names?

Samuel Kivuitu: My full names are Samuel Mutua Kivuitu.

David Majanja: And you are the Chairman of the Electoral Commission?

Samuel Kivuitu: I'm the Chairman of the Electoral Commission of Kenya.

David Majanja: And you have a presentation which will be made by your brother
Commissioner, Commissioner Matagaro?

Samuel Kivuitu: That's correct.

David Majanja: Yes. You can stand down so that he can come.

Chairman: Would you swear the presenter also?

David Majanja: Yes, sir.

Jeremiah Matagaro: I swear by the Almighty God and before this Commission, that the
evidence I will give to this Commission, touching the matters in question shall be the
truth, nothing but the whole truth, so help me God.

David Majanja: Can you tell the Commissioners your full names please for the record?

Jeremiah Matagaro: My Lord, my name is Jeremiah Matagaro; I'm a Commissioner with

the Electoral Commission of Kenya.

David Majanja: You may proceed with your PowerPoint presentation.

Jeremiah Matagaro: My Lord, most of the things that we have dealt with have been
covered by the Attorney General, but I'll move very quickly. My Lord, the objective of
this presentation is to assist the Commission appreciate the context of the 2007 election
violence. We shall also explain the challenges and measures ECK took in addressing
election violence in 2007. We shall also recommend measures that could mitigate
violence in future elections. Our general of observation is that in 1992, the country
witnessed high level of violence which was unprecedented compared to the preceding
elections.

In 1997, there was a repeat of politically instigated clashes ahead of that year's elections.
In 2002 my Lord, various incidence of pre-election violence were widely reported in the
media during the campaign period. In 2007 elections, these were the most closely
contested and witnessed both pre-election violence and unprecedented level of post-
election violence not experienced in the previous elections.

Before we expound on the violence, my Lord allow me to indicate what ECK is. ECK is
made of 21 Commissioners, with the Chairman and Commission staff. The Chairman and
Commissioners are appointed by the President under the Jeremiah Matagaro:
constitution, and we are given some functions that we are supposed to execute and these
are mainly conducting presidential, parliamentary and local government elections. We
register voters, maintain and revise voters’ registers. We also promote voter education,
we promote free and fair elections and we carry delimitation of parliamentary
constituencies and determine their numbers, their boundaries and their names. We also
carry the functions prescribed by parliament, i.e. the National Referendum that we
conducted in 2005 and currently we are implementing the Political Parties Acts. My
Lord, the Commission has 11 departments which are responsible for the day to day
management of its work. The plenary of ECK commissioners meet weekly to provide
overall guidance and direction on policy issues. There are various standing and ad hoc
committees through which the Commission works.
On the role of ECK my Lord as I had said earlier, this is a body created under the
constitution to oversee and manage elections among other functions. And it enjoys
constitutional independence in the discharge of its functions and mandate. One of the
primary objectives is to promote free and fair elections and since independence, we have
held regular elections and what we held last year was the 10th election since
independence. My Lord, why do we hold regular elections? Elections give voters the first
and ultimate opportunity to make choices and influence the way they will be governed.
The conduct of free and fair elections result in the establishment of a legitimate
government which make legislate accountable to voters and contribute to the
democratisation process and a democratic system of government.

The conduct of free and fair elections is dependent on the conduct of various
stakeholders. For instance political parties and candidates must desist from election
violence. In the process - in the process the causes of election violence well, in the
process of holding regular elections, the country has witnessed violence as I indicated
earlier, in 1991 we witnessed an outbreak of politically instigated ethnic clashes ahead of
the 1992 polls. The origin of the clashes could be traced to the September 1991 Majimbo
rallies which were held in Kapsabet, Kericho, that is in Kapkatet, Narok, Machakos and
in Mombasa.

My Lord, the clashes affected all provinces except Central and Nairobi area. And the
areas which were affected were, in Rift valley, you start with Molo and Olenguruoni,
Bungoma, Trans Nzoia and West Pokot Belt; the Kakamega, Kisumu, Kericho, Nandi
and Uasin Gishu belt; the Kisii, Narok, Trans Mara, Nyamira and Uasin Gishu belt; the --
and Bomet sorry. And in Eastern Province we had Kitui, that time Mwingi was under
Kitui that's why I've put in bracket, Meru, Marsabit and Isiolo. In North Eastern we had
Mandera, Garissa and Wajir while in Coast Province Tana River and Lamu were
affected.

My Lord, we want to show you some press cuttings which are in two pages. We shall
exihibit these press cuttings documenting headlines of inflammatory Jeremiah Matagaro:
utterances by political leaders in their foresaid rallies which possibly led to violence.

Show the next one. My Lord and Commissioners, the perceived aim of the Majimbo
rallies was to displace non-indigenous communities and reduce their voting population
ahead of the 1992 elections in order to maintain the political status quo. What I want to
say here is that, as we were approaching 1992 elections, an amendment to the constitution
was effected which stated that a validly elected President must garner at least 25% of the
vote in at least 5 of Kenya's 8 provinces during the first round of voting.

The high number of non-indigenous voters particularly in the Rift Valley raised concern
that opposition candidates could make in-roads in such areas and threaten the incumbent
at the elections. My Lord, violence resulted in the killings and displacement of people
and arson attacks on property in the affected areas. Many of those displaced in the clashes
were unable to vote in the 1992 General Elections. Let's proceed.
My Lord, in the period preceding the 1997 elections, politically instigated ethnic clashes
recurred again ahead of the second multi-party elections in 1997. The clashes in 1997
resulted in the killings and displacement of many people and arson attacks on property.
The areas mostly affected by these clashes included Ole-Moran, Wajir, Molo,
Enosupukia; and in Coast Province, Likoni, Kwale and Kilifi. My Lord, we'll show you
some press cuttings on 1997 violence and the first page will have two of those and the
next one will have three captions. Okay, I think they speak for themselves.

My Lord, Kenyans did not keep quiet to the 1991 and 1992 violence, along with the 1997
violence, and their response was as follows. The politically instigated clashes ahead of
the 1992, 1997 General Elections drew attention from various quarters and calls were
made for investigations into the causes and action against the perpetrators. In 1992 a
Parliamentary Select Committee was formed chaired by Honourable Kennedy Kiliku, the
MP for Changamwe, to investigate the clashes. The Kiliku Committee Report examined
the causes and identified the instigators and perpetrators of the clashes. It also examined
the role of the various stakeholders such as the media, provincial administration, security
agents and relations with the clashes and my Lord, I wish to produce the Kiliku
Parliamentary Select Committee Report which we have.

David Majanja: Exhibit 136a. 136.

Jeremiah Matagaro: And my Lord, on Pages 82 and 83, the Kiliku Committee Report –
Parliamentary Select Committee Report made several recommendations. And the first
one was that there should be fair and equitable distribution of jobs mainly in the
provincial administration and the areas really which were supposed to be affected are
those cosmopolitan areas where Kenyans were staying from different communities. And
this really affected Trans Nzoia, Uasin Gishu and Molo. Another one is that the
government should resolve all land disputes and also do quick transfer of land and the
Land Control Act, and then there was a recommendation that a Judicial Commission
should be established to deal with disputed boundaries.

Thirdly, it was recommended that urgent measures should be put in place to deal with
adjudication and issuance of title deeds and also speedy resettlement of people who were
displaced. Lastly there was a recommendation that security should be enhanced in areas
which were affected and returnees should be given the necessary security in order to
build their homes.

My Lord, the Kiliku Commission Report was however rejected by the one party
parliamentary system which was in place, and in 1998, there was a recurrence of the
violence before the 1997 elections, sorry I made a mistake. 1997 there was a recurrence
of violence and the Akilano Akiwumi Commission was established. Religious bodies also
principally the NCCK also launched their own investigations into the clashes. My Lord I
wish to produce a document here which is Page 23 and 26 of the Akiwumi Report
indicating the areas which were affected by those clashes. And this one gave a
breakdown of the districts, the areas, the tribes, which were affected in the clashed of
1991 to 1998.

David Majanja: 136B.

Jeremiah Matagaro: I also produce the Akilano Akiwumi Report which will be covering
that.

David Majanja: It’s already been produced.

Jeremiah Matagaro: It has been produced. My Lord, the report of the Akiwumi Judicial
Commission of Inquiry like the Kiliku Report, made various recommendations among
them, investigation and possible prosecution of the instigators and perpetrators of the
clashes. Both reports examined the role of the various stakeholders and established that
violence was a tool used by politicians to advance their goals. The experiences of 1991,
1997 shows that violence linked to elections had taken a clear ethnic orientation in many
parts of the country since the introduction of multiparty democracy. My Lord, if you look
at Page 285 to 286, there are recommendations which were made by that Commission
and indeed they are similar to what was stated by the Kiliku Commission so I don't have
to read them, you can read them on your own. My Lord, though the Akiwumi Report was
presented to the government on 31st July 1999, it was only released to the public in the
late 2002 ahead of the general election following agitation for it's release. But this
morning I heard the Attorney General saying that in 2002, he directed the police to
conduct some investigations. But you note that this was after quite some time.

Jeremiah Matagaro: My Lords, scant regard was paid to the implementation of the
recommendations and I want to emphasise that the lack of actions entrenched impunity
since there appeared to be no deterrence to politically instigated violence. Their response
to both the Kiliku and Akiwumi Report show the wavering political will in containing
politically instigated violence. My Lord, on 2002 elections, I want to indicate that the
general election marked a transition from the Moi era since the incumbent was not
contesting. The 2002 elections experienced various incidents of pre-election violence
during the campaigns but this was significantly less compared to the two preceding
general elections. ECK Chairman was actually assaulted at the Charter hall as he was
being forced to release elections expeditiously and yet we were waiting for the results. A
decisive opposition lead and unheard concession of defeat secured peace and averted
violence.

My Lord, let us now move to the 2007 elections. I would like to give you a background to
these elections. The 2005 referendum set the tone for the 2007 general elections. After
the 2005 referendum, Kenya remained deeply divided along ethnic lines and this
persisted in the run up to the 2007 general elections. The country was zoned and
balkanized in the post-referendum period. My Lord, leading politicians who opposed the
government position at the referendum and were subsequently sacked from the cabinet
coalesced under the Orange Democratic Movement, which subsequently transformed
itself into a political party.
Their movement began earnest campaigning ahead of the 2007 general elections. There
was widespread expectations that the results of the 2007 general election would mirror
the voting pattern and results of the 2005 referendum but you are aware that that political
party mutated until it had different parties; ODM Kenya, ODM itself. My Lord, ECK was
perceived by those who won in the referendum and drew cautious welcome from the
losers. There was a dramatic shift in the perception of ECK after the 2007 elections
which was distinct from that obtaining the immediate pre-referendum period.

My Lord, we want now to show you the graphic example on a number of candidates, both
civic, parliamentary, and presidential that we had in the year 2007. My Lord, I want to
say this, the tension experienced in the 2005 referendum set the stage for a very
competitive election in 2007. We now wish to invite you to see a quick comparison of the
increase in the number of civic candidates between 1997, 2002, 2007 elections. The
increase of civic candidates was double between - doubled between 2002, 2007 elections.

Let's move to the next one, Parliamentary; my Lord the figure for the number of
parliamentary candidates for 2007 elections increased by 150% compared to 2002. The
improved emolument of parliamentarians and the increased number of candidates brought
intense competition and rivalry among themselves. Let's move to presidential; there was
hardly any difference between the number of candidates we had in 1997, 2002 and 2007.
However I would like you to note this my Lord, in 2002, we had 10.4 million voters. In
2007, we had 14.2 million voters. This was an increase of about 4 million voters. Polling
stations we had 18,357 in 2002 but in 2007 we had 27,555 polling stations. This came up
with its challenges as ROs had to deal with an increase in number of voters, candidates
and polling stations.

My Lord, let us now turn to - our attention to the circumstances leading to the 2007
elections which is a subject matter of this enquiry. The 2007 elections were preceded by
an outbreak of violence and displacement of people in Molo, Kuresoi, Mt. Elgon, Sondu,
Tana River, Samburu, Laikipia and Baringo. The 2007 presidential election was a closely
contested race and key players were set on winning. Party supporters were psyched on
victory and opinion polls seemed to create an irreversible situation. The party nomination
exercise conducted by political parties were largely chaotic leading to violence in several
areas like Ugenya, Mathira, Kisumu, Kisumu Rural, Gem, Bahari, Mbita, Nyakach,
Rangwe, Ndhiwa, Bahari, Nyatike, Bobasi and most constituencies in Nairobi. Move
ahead.

My Lord, we shall show you a clip indicating violence which was visited on the people
of Ugenya, Mathira, Dagoretti, Kasarani among the sampled clips

[Presentation].

Jeremiah Matagaro: The next one will be Mathira.

[Presentation].
That is Dagoretti [Presentation].

That is Kasarani [Presentation].

Jeremiah Matagaro: My Lord, having seen these clips, let us now look at the other factors
that could have influenced violence as the country prepared for elections. Kenya went
into the elections in 2007 primed for violence as a result of 1) Majimbo debate which
interpreted as a scheme to evict people from certain areas. The Majimbo debate created
panic in these areas given the past experience when initiators of this debate had led to
violence and forced evictions. As I said earlier, pre-election violence erupted in Coast,
that is in Tana River Kisauni; Western in Mt. Elgon, Malava and Ikolomani; in Nyanza
there was violence in Ugenya, Kisumu Rural, Gem, Was, Nyatike, South Mugirango; in
Rift Valley there was - we had violence in Molo, Kuresoi and Sondu. In Mathira you
have just seen in Central you have seen Mathira. In Nairobi Lang'ata, Embakasi,
Kasarani, Kamukunji had violence. In Eastern Mwingi you remember Kalembe Ndile
being hijacked out from a meeting at Mwingi where ODM Kenya luminaries were; in
North Imenti, In Eastern we had Moyale, Marsabit and in North Eastern Jeremiah
Matagaro: we had Mandera East, Mandera West - Central where there was serious fight
between the Murule and the Gare.

My Lord, we’d like - we'll now show you a clip on the pre-election violence in which a
vehicle transporting ECK materials was set on fire a day before the elections. This was in
Eldoret and it was alleged that the vehicle was transporting ballot papers which could
have been used in rigging elections in that general area.

[Presentation]

Those are ballot papers - boxes rather. We're through. My Lord what does this indicate?
This is an indication there was mistrust, suspicion, tension and violence which was
building up upright to the Election Day.

My Lord, you recall that I had earlier indicated that violence affected the following areas
and I want to expound on them. Mt. Elgon; initially there were land disputes between the
Soi and Ndorobo sub-clans. This started in 2006 and there were killings, burnings and the
displacement of the whole population and people moved to Bungoma, Teso, Trans Nzoia,
Sabaot - Trans Nzoia and Sabaot and Endebes and Kwanza. They also moved to Uasin
Gishu and Nandi, and others moved to Uganda. In Molo, my Lord, I know you went and
you collected evidence and you were told that for every three years people have had
peace and for the next two years they've always had violence and this started in 1991, and
this time round the attacks started in 2006 people were killed, they were displaced and by
March people had moved to market centres and they were being fed by the Kenya Red
Cross.

We're told that people moved to Kamaura, Kuresoi, Kinjoget, Saliga, Muchorwe,
Mwondoko and Molo town. In Sondu you are aware that in September last year there was
-- there were several attacks and people were displaced. In Tana River there were
problems between the Orma and Weldei who were supported by the Munyanyanya, and
when there was displacement people moved to Bangale, Hola, Tarasa and other places. In
Samburu, Laikipia, Baringo, Turkana and West Pokot those problems were there. That is
a caption indicating the displacement of people who were running away from Kuresoi,
my Lord.

My Lord, the issue of hate speeches, this is within your knowledge following evidence
which has been adduced by the director general of Intelligence, Ms. Wanyeki the PS for
Information. And my Lord, hate speeches were evidence - evident in various SMS
messages, the emails and leaflets which were circulated ahead of the general elections.
There have been claims that some vernacular FM stations inflamed tension before and
after elections through their broadcasts. My Lord, the media is the basic source of
information and we recommend it for having highlighted incidence of violence before the
general elections which enabled the ECK to take measures towards mitigating further
violence.

Jeremiah Matagaro: However, there were accusations against sections of the media for
being partisan and giving imbalanced coverage to the leading parties and the presidential
candidates. Such slanted or imbalanced media reporting in a deeply polarized political
environment could inflame tension - tensions. The media announced election results
without verification from ECK until the very last moment resulting in the transmission of
different results by the various media houses as tension build up across the country.

My Lord there was intense competition among media houses as each strived to be the
first one to relay the most up-to-date results. The fact that the different media were
announcing different sets of results caused confusion and anxiety among the viewers and
listeners. Little attention was made to seek verification from ECK until the tail-end of the
process when media houses opted to suspend further announcements and await results
verified by the ECK. But you are aware that they said that their databank collapsed and if
you challenge them they will not produce those results that they were showing on through
the media.

Chair, ECK prepared for the 2007 elections although several allegations were levelled
against us. Accusation of rigging are common ahead of general elections and numerous
accusations were levelled against us. The first one which I remember is where they were
stating that officers from Harambee House belonging to the Administration Police were
tampering with registers. The 13th and 15th floors of the Anniversary Towers being were
used to rig elections and the like. Despite these accusations we adapted an open door
policy to politicians and the media and responded to all the accusations levelled against
us. The accusations were proved to be unfounded but having being widely publicized in
the media, they damaged perception towards ECK.

What measures were taken by ECK, my Lord? ECK created an ad hoc committee on
security which held joint meetings with police and the Attorney General on managing
violence during the campaigns. ECK -- members of the ECK security committee visited
areas affected by insecurity and natural disasters and made special arrangements for
voting in these areas which included Kuresoi, Mt. Elgon, Budalangi, Tana River,
Samburu, Ol Moran and Baringo. ECK security committee worked closely with the
District Security Committees in these areas to ensure peaceful elections. My Lord, ECK
convened a national conference calling for peaceful elections. The conference was
attended by representatives of political parties, Civil Society, media, universities,
government ministries and departments. Political parties and parliamentary candidates
signed the electoral code of conduct which called on them to maintain peace. Presidential
candidates also signed electoral code of conduct and peace decree for the first time which
they read in public.

An ad hoc committee on the electoral code of conduct was established to receive

complaints on violence, and it imposed penalties on several candidates. We can skip that
one we're running short of time. Let’s move to the next one. What follows my Lord, are
some of the posters developed by the ECK as part of the anti-violence campaign. Okay,
do it quickly they can read for themselves.

Chairman: Read for ourselves? I can, but my brothers find it a bit difficult.

Jeremiah Matagaro: Okay. Should I - my Lord, we shall give you an interpretation of

those...

Chairman: Yes its better that way, give us the interpretation and just flash through them...

Jeremiah Matagaro: Okay flash them very quickly. Move quickly. My Lord, we also put
up billboards in the whole country and those are the areas that's Kericho, Bungoma,
Mombasa, Nyeri, Embu, Kisii, Eldoret, Nanyuki, continue. My Lord, anti-violence media
campaigns we also conducted them and what follows are some audio clips recorded and
played as part of the anti-violence media campaign. We shall give you the interpretation.

[Presentation]

Speaker: Just move...

[Presentation]

Jeremiah Matagaro: My Lord, we are now coming to the tail-end of our presentation and
we want to indicate that ECK recognise the importance of peace in all the aspects of the
electoral process. Security arrangements were made for electoral staff and voters, voting
materials and at the constituency and at KICC tallying centres. Unfortunately police were
overwhelmed by outbreak of chaos in Kilgoris and Kamkunji but similar situations were
contained in other areas.

The ECK Commissioners and staff were intimidated at KICC. The intimidation of ECK
commissioners was linked to the perception that the commission was delaying the
announcement of the election results.
We shall show you a clip on that one my Lord.

On the announcement of 2007 elections and the ejection of Commissioners from KICC.

[Presentation]

Jeremiah Matagaro: I think that's all right. My Lord, one of the issues which has
constantly -- which constantly comes out in the public and has been harped as the origin
of post-election violence is the delay in the announcement of results. ECK would like it
to be known that these allegations are not only misleading but they are untrue.

Evidence gathered outside, which we have gathered indicates that from pretty early Molo
was on fire, Kuresoi was on fire, Sondu was on fire, and many other places. In Budalangi
there were problems and by the time we came to the elections the whole country was on
fire.

The 2007 general elections were held on December 27th and the final results were
released on December 30th. This took three days to release the presidential results. A
comparison of the time taken to release the presidential results in previous elections
shows that the perception that the 2007 results were delayed is incorrect and not factual.

Move to the next clip. My Lord, in 1992, elections were held on 29th December and the
announcement was done on 2nd January. This was four days. 1997, elections were held
on 30th December and the announcement was on 4th January which was five days. In
2002, elections were held on 27th December and announcement was done on 29th
December which was two days. This time round elections were held on 27th December
and results were announced on 30th December which was three days.

My Lord, ECK has got its own limitations in so far as matters of security are concerned.
The police department, as members here know availed security personnel to ECK at
various stages of the electoral process.

The ECK has no police of its own and therefore relies on the Commissioner of Police to
second police officers during elections. Police officers seconded to the ECK are in law
considered election officers and they are supposed to fall under the command of the ECK
but in practice and the Commissioner mentioned it here this rarely happens.

ECK and the police consulted on security arrangements at KICC in view of the
experience witnessed during the announcement of the 2002 election results and the
referendum. Security presence at KICC was a decision of the police based on these
security consultations and was aimed at averting a repeat of the chaos that attended the
announcement of the 2002 presidential results and the 2005 referendum.

My Lord, our concluding observations are as follows. ECK lacks sufficient powers to
address elections - election violence in the countdown to general elections. ECK lacks
sufficient capacity to enforce the Electoral Code of Conduct. An Jeremiah Matagaro:
independent tribunal to enforce the Electoral Code of Conduct is necessary to deal
decisively with the election violence.

My Lord we are saying this because election violence cases are handled by courts under
the Election Offences Act and are therefore outside the purview of the ECK. This means
that the ECK is limited on the extent to which it can address such violence and punish the
offenders.

My Lord, there is need for clearer guidance to ensure that the role of the media, civil
society, diplomats, observers is consistent with their mandate in the electoral process. We
are saying this, my Lord, the role of the media especially announcement of results calls
for better coordination between the ECK and the media without the media fearing that the
ECK is encroaching on the media freedom and operations. The ECK has a legitimate
interest to ensure that the Media's conduct safeguards the integrity of the electoral
process.

The role and conduct of election observers needs clarity to ensure that the relevant
guidelines on observation of elections are responded and adhered to strengthen electoral
democracy.

My Lord, the perception of delaying releasing the final presidential results instigated a
crisis of confidence which primed the stage for rejection of the final results. The
perceived delay in announcing the final presidential results cannot be the reason for the
violence. This is only an excuse. A political culture of intolerance and a growing culture
of impunity on election offences remains a serious obstacle in reigning in election
violence.

The underlying causes of violence are historical and deeply entrenched grievances, which
must be interrogated to stem the tide of violence at future elections. My Lord, ECK
functions and roles are stipulated in the Constitution, and the National Assemblies and
Presidential Act. Once we announce elections, election results our activities cease and
legally we become fanctus officio.

That's the end of our presentation thank you very much. And I'll now ask - there are
things that I wanted us to produce as exhibits. We have press cuttings indicating that we
have always had violence. These ones will be covering from the year 2006. There are five
files. Probably our counsel will produce them.

David Majanja: First you would like to produce your presentation as evidence?

Jeremiah Matagaro: Yes. Do you have that presentation?

David Majanja: My Lord it may be produced as exhibit 136.

Chairman: 136, yes. That is a PowerPoint presentation.

Jeremiah Matagaro: Yes. And then the 5 files? There were, the only headline one of them
is delayed results. Another one is on the referendum, another one clashes from 12th
November to 29th December, pre-election rigging claims and displaced persons. Our
counsel is giving you that.

David Majanja: Yes, we can all name them as 136 C that’s cuttings five folders.

Chairman: Five folders 136e or c.

David Majanja: c.

Chairman: Yes.

David Majanja: Thank you.

Chairman: Mr. Majanja is...

David Majanja: I only had two questions for the Chairman following the presentation.
Mr. Chairman, I just wanted you to confirm that the NSIS had written to you a letter
dated 6th December, 2007 alerting you of the possibility of violence if there was a
perception that the elections would not free and fair. Is that a correct position?

Samuel Kivuitu: That is correct.

David Majanja: Did you take; did you consider that you took adequate steps to allay
those perceptions to members of the public?

Samuel Kivuitu: Well, we did the best we could, as you have seen from the - what has
been presented we took several measures to ensure that at least people know their
responsibilities and on our part we did the best we could.

David Majanja: And you also, would you confirm that it is in fact this perception that the
result. Presidential election result was not free was not fair, was not reflective of the will
of the majority according to some parties that triggered the violence.

Samuel Kivuitu: I'm not very sure about that. I believe, my Lord and Commissioners,
wherever you have gone around the country you have been given different reasons why
violence erupted after the elections. As we say it is not just after the elections, violence
started earlier. But there are those who believe and I'm sure they have told you so that
people were hired to cause violence. You can't say they caused violence because of the
results; it is because they were hired and there may be genuine cases of people who felt
annoyed but then that does not entitle anybody to take the life of another one or to burn
others' properties and houses, it’s not reflective of the election. That’s just showing that
we don't respect the rights of others we only respect ours. Even the people who were
killed were probably killed because they were presumed to have voted the other way, the
other candidate who was opposed the other one – to their candidate. So, you can't say it is
relating to this, it is an excuse but we don't say it is the cause.

David Majanja: But the presentation that has been prepared has alluded to the fact that
there was a lot of tension and would you admit that in fact the conduct of the Electoral
Commission when the counting started and in particular some of the statements you made
contributed to heightening the tension that had existed at the time.

Samuel Kivuitu: The only statement, which is claimed to have heightened tensions is
when I raised the issue whether the delay was because people were cooking results. Now
that’s a very simple statement, we don't all speak the same way, that’s my way of
speaking and the message I was sending was very simple. I was sending the message that
that is the feeling the people were having because I know am a Kenyan, having been hit
2002 for claims that I was delaying the announcement of the results. I know of a few
when results seems to be delayed, they always believe the results are being manipulated, I
was conveying that message to our officers that is the way people will think and if they
bring results which are not acceptable, then it would be another matter.
That’s why I was saying, if it excited anybody then he misunderstood me but we can't all
speak the same way.

David Majanja: And you also agree with me that part of the way in which election or post
election violence can be avoided is by the ECK dealing with perceptions like the one you
have alluded to that results are being cooked. That if the ECK was able to deal with some
of those perceptions indeed the post-election violence would have been mitigated. Would
I be right in so stating?

Samuel Kivuitu: Am not sure but it is quite clear that in a situation like we had this time
where the competition was so sharp, it is necessary to introduce a system which transmits
the results far much faster than it was the case now. The results as they were transmitted
this time was just a method we have been using all along since 1992, we'll have to change
that system because we went out, gave out civic education to people, they know their
rights, their responsibilities and therefore they are very sensitive about their rights and so
as that gets up we must also move forward in our way of doing things so that we can
capture their expectations.

David Majanja: You've noted that in fact in your presentation that this was a problem you
had already noticed for the last two elections, why hadn't the Electoral Commission done
anything to deal with delivery of real time results to avoid that problem which had
already been noticed.

Samuel Kivuitu: You require the technology and I negotiated we got some laptops which
could be used but the laptops were only available for constituencies that is for the
returning officers and they were coming for registration of voters so that our people could
start learning how to use them starting from the registration of voters up to the elections
and then announcement of the results. Unfortunately they arrived late because by the time
they arrived, which was in June, we had already done the first batch of registration when
they arrived they found we had just finished the second batch of registration of voters so
they were not used for that so we now though we could use them for the elections but it
was impossible to have the training done to such an extent that we could rely on officers
in the field there in some places where there is no electricity because if there's no power
anything can happen and we would prefer to use a method we knew rather than to use the
method so suddenly and people don't master it and eventually give us results which defer
or would bring more problems. So we were afraid of that, trying a new technology within
a very short time and at the same time our officer at the IT department was also busy
cleaning the registers because of the elections because after finishing registration in June,
we had inspection of the registers in July and then now its from August they had to clean
the registers for the elections. It’s not that easy. We couldn't combine it.

David Majanja: Thank you. I’ll have…

Chairman: Yes thank you. Do we have any questions from FIDA, for the chairman?

Mumbi Ngugi: Yes, my Lord, just a few questions for Chairman Kivuitu. Now Mr.
Kivuitu from your presentation here today you have said that we have a history of
violence in this country at election time?

Samuel Kivuitu: In fact the presentation was not even comprehensive, it is a history
which we have, some of it deliberate violence.

Mumbi Ngugi: Now this is a history that goes back some 17 years or so, correct?

Samuel Kivuitu: No, it goes back to come to -- since independence; I started seeing
fighting during elections since independence when I came back to Kenya.

Mumbi Ngugi: But the kind we have witnessed in the 90s is of a peculiar kind, would you
say?

Samuel Kivuitu: Yes, it’s ethnic basically.

Mumbi Ngugi: The election-based violence of the – the election-based violence of the
90s is ethnic-based. Now in those 17 years Mr. Kivuitu there have been electoral laws
that govern what the Commission can do or the government can do in relation to election-
based violence?

Samuel Kivuitu: Government, yes, the Electoral Commission from 1997 but still not
effective. You can't use that law to achieve much.

Mumbi Ngugi: Could you maybe tell the Commission briefly what that law is, what it
empowers you to do?

Samuel Kivuitu: It’s Electoral Code of Conduct, it allows us to warn, we have warned. It
allows us to fine, we have fined, the fines were never paid and the third thing it also
allows us to deny somebody, a person or a political party campaigning in a particular
area, we have never done that because we have no way of going and stopping it do so, if
it does what do we do, its not even a criminal offence so you can't even report it to the
police. It’s not a criminal offence. We have also the power to stop a political party from
being covered by KBC that may be easy but they don't need KBC as you have seen
during the last election they need many others, they have got others. So the final one we
have is to stop a candidate continuing being such and for that to get that one that
candidate must be guilty persistently of the same offence so you must wait for him to
commit several offences or alternatively he must do a very nasty thing and then when you
do so you must go to court. And you don't just walk to court, you must go and make an
application, swear an affidavit – now we can't we must get the affidavit sworn by those
you saw. And then have a court sit down and decide. Now courts don't move that fast,
they are busy, it’s not because they are incompetent; they are busy. So that one is of no
use, the fine you can't enforce it because there's no default clause to say what you can do
so it’s just power without a way of enforcing it.

Mumbi Ngugi: Let us look at the one you've said you have the power to stop a candidate,
how many at attempts have you made in the past 10 or 11 years to stop a person guilty of
election violence from continuing as a candidate. Have you made any?

Samuel Kivuitu: We have fined…

Mumbi Ngugi: Application?

Samuel Kivuitu: No, no. We have fined.

Mumbi Ngugi: Have you, no, specifically have you made any application to stop a
candidate guilty or accused of election violence from continuing as a candidate in all
those years

Samuel Kivuitu: No, no, because the person who is offended must come and swear an
affidavit and there are no keen to swear an affidavit, they are in a hurry to go and do the
campaigns, we can't swear an affidavit and we were not there.

Mumbi Ngugi: So you as a Commission wait until somebody -- you are not able of your
own motion to bar somebody who is accused of violence?

Samuel Kivuitu: No.

Mumbi Ngugi: So every official in this country always waits for a complaint to be made
before taking action that they are mandated under the law to take?

Samuel Kivuitu: No, am not an official in this country I’m telling you what we do.

Mumbi Ngugi: Alright. Thank you, Mr. Kivuitu. Now last year there was a lot of
violence at the nomination stage specifically gender-based violence, you recall?
Samuel Kivuitu: Yes

Mumbi Ngugi: What measures did the Commission take to stop such violence if it took
any?

Samuel Kivuitu: We warned.

Mumbi Ngugi: You warned.

Samuel Kivuitu: It’s part of the code of conduct, we warned.

Mumbi Ngugi: So, basically you are saying that Commission -- the only power that the
Commission has and the only power that it exercises or the only option that it exercises is
to warn?

Samuel Kivuitu: Yes, in fact only one lady candidate came to our office and I remember I
even spoke to the boss of the party, this was a PNU candidate and I told him that they
were being very unfair to this lady and she must be allowed to contest for nomination.
They allowed her but they still knocked her out but at least they heeded my advice. The
others never came to our office they only went to women’s hospital -- we never saw
them.

Mumbi Ngugi: Now, Mr. Kivuitu, you talk about women going to the women’s hospital
and you realise that one of the statements that has going around a lot is that the women
during this post-election violence bore the brunt of that violence. Now, to your
knowledge how many women were themselves guilty of pre-election violence and post-
election violence?

Samuel Kivuitu: None, women are the best candidates and I’ve said so many times, they
never cause us problems, it is they who suffer. But they should learn to come to the office
and come and be ready to swear an affidavit. Like that particular case it was quite early
enough if she was interested to go on we would easily made an application. But the
others, you know the politicians are not that foolish what they do is they wait until it’s
about one week or a few days before the election that’s when they release their - they
launch their violence. And they know there's no time for a lot of these things we are
talking about which are very academic when it comes to that time. We are busy
wondering what to do here, transporting materials, transporting our officers, recruiting
the police, so they know so they do a lot of harm during the last week, you check.

Mumbi Ngugi: But Mr. Kivuitu according to your presentation, this violence started in
March 2006 or in 2006 there was violence as early as March 2007, Kuresoi and Molo
were burning in October 2007, so that is not one week exactly. Is it?

Samuel Kivuitu: No, you could not say a particular candidate was involved in those
incidents. We saw people being chased from their areas where there supposed to be
foreigners to elsewhere. You could not see the hidden hand. So behind the hidden hand,
we could not take action against a hidden hand. We could see what was happening so our
immediate reaction was to provide facilities for those people to able to vote so those who
were moved from their usual places, we moved there where they were and provided them
with polling facilities.

Mumbi Ngugi: Did you carry out any investigation for this hidden hand?

Samuel Kivuitu: We can't carry out an investigation for a hidden hand. We don't have any
capacity. Where do we get the people for investigation?

Mumbi Ngugi: Did you coordinate with the police to investigate this violence?

Samuel Kivuitu: Yes we did tell the police to do so. In fact all these things we were doing
we were doing with the police. The police have always been very supportive of us.

Mumbi Ngugi: Right. Now, Mr. Kivuitu let’s come to the announcement of the elections
and you said that there was no delay in 2007, that it is only your choice of words that
people were cooking elections. Now given the nature of the violence and the situation in
the country, was that an appropriate term?

Samuel Kivuitu: I don't know.

Mumbi Ngugi: For...

Samuel Kivuitu: That's how I was trained by my parents.

Mumbi Ngugi: May I finish, Mr. Kivuitu. Was that an appropriate term for you?

Samuel Kivuitu: I don't know. I hear it was not so I'm sorry if it was not but that is how I
was trained by my grandmother, my grandfather, that is the language I know and I'm told
to change.

Mumbi Ngugi: You do not think that you used a term that was...

Samuel Kivuitu: No.

Mumbi Ngugi: Too, too much brevity...

Samuel Kivuitu: No.

Mumbi Ngugi: In the circumstances.

Samuel Kivuitu: No. I think Kenyans have come to know my language since I went to the
Commission.
Mumbi Ngugi: You have no apologies for that, right?

Samuel Kivuitu: No.

Mumbi Ngugi: Okay. Now, Mr. Kivuitu there was a perception with regard to the
elections that the elections were rigged because some parties had more seats than others
and yet were said not to have won. Now would do you say that there is proportional
representation in this country?

Samuel Kivuitu: No there is no proportional representation.

Mumbi Ngugi: Could you elaborate.

Samuel Kivuitu: Proportional representation means that the winner should in proportion
to the population of that particular area, should truly have a majority. Here you can win
even with one vote and probably you got only one tenth of the entire population and the
rest goes to others split among them. So there is no proportional representation in Kenya.

Mumbi Ngugi: How about in relation to the constituency sizes?

Samuel Kivuitu: They're also not the same. They differ. Some constituencies have got
fewer people – fewer residents than others by far.

Mumbi Ngugi: Would that be cause any difficult or cause any problems in the tallying or
the counting of votes?

Samuel Kivuitu: How? I don't see how. If it's question of tallying, tallying is just
counting.

Mumbi Ngugi: So you do not see any problem in relation to the number of the voters in a
constituency?

Samuel Kivuitu: I've not understood that argument and I'm not ready to argue about it
because I deal with facts. If I’m given results, I read them. If they show some people got
more seats than others, it's a different story for me because I read the facts as I'm
presented.

Mumbi Ngugi: Now, Mr. Kivuitu in relation to the civic education that you carried out
during the elections, I know you said something about people were very well educated on
their rights. Were they also educated on their civic duties specifically in relation to others
rights?

Samuel Kivuitu: To. In relation to...

Mumbi Ngugi: Others rights. Other people's rights?

Samuel Kivuitu: Yes they were educated on that. Let me say one thing which I have
found about Kenya which is really sad. You can spend all your time educating people on
their rights and they feel very -- you feel very happy; they know their rights, they also
know their responsibilities, you tell them also your neighbour allow them to vote the way
they want, vote the way you want. But as soon as you take the corner, a politician comes
and says, “You know you're our people, these others are not ours, so what do you -- we
must move them, we must do this, we must vote them out”. And that is the end of your
civic education. It dries up that minute. They become tribes people and that is the saddest
thing in this country which I have noticed since I've been in the Commission and I feel
very sad about it. It is something which we must all do something about and it is not
something for only for Commission it is something for every one of us.

Chairman: Two minutes, please.

Mumbi Ngugi: Yes. So basically Mr. Kivuitu you are saying that the Commission has no
capacity to enforce the Code of Conduct and that civic education in this country is totally
ineffective if not useless, would that be...

Samuel Kivuitu: It is ineffective because if you remember, when we, when we were,
when the Constitution of Commission -- Kenya Constitution of Commission Review
Commission was preparing us for the referendum or for the adoption of a new
constitution, they went a long way you know including FIDA you people did a good job,
but did it change the perception of the people? They still remained tribal. Even very
educated people and I know even professional societies here where elections are now
tribal. So it is very unfortunate. It is something which we need prayers for.

Mumbi Ngugi: Thank you Mr. Kivuitu, no further questions.

Chairman: Okay. Any questions from Civil Society - from Women and Children?

Peter Maundu: Yes Mr. Chairman. It's a difficult job you have got to do. Now, with
regard to financing, particularly within the election year which was 2007, I have been in a
place where funding for you sometimes was a problem and it would be delayed to the
extent that you'll not be able to plan your calendar concretely and, you know, come out
with the results you want. What was your experience within 2007? Was there any
problem with your funding for your organization to make sure that you plan appropriately
for the challenges ahead of you?

Samuel Kivuitu: Funding was okay, but the only thing for example it is the question of
transmission of results and the rest by using computers. It is something which we have
been floating for more than eight years and all the computers we have most of them are
actually given by donors, most of them by the Americans, which we have. We have been
unable to get enough support from our own country, our own parliament to have enough
computers to be able to do some of these things and even these laptops I'm talking about
they were also bought through foreign -- foreign funding. So there is that problem but in
terms of just running the election and forgetting about those computers, I think we were
properly funded.

Peter Maundu: Funded.

Samuel Kivuitu: In fact for example for the first time, we were well funded for voter
education. For the first time because previously we used to be given Sh.7 million and that
would be swallowed by KBC in just three broadcasts.

Peter Maundu: Yes. Now you have said that you have found difficulties in, with the Code
of Conduct. Most of the candidates say civic, parliamentary, even presidential they sign a
Code of Conduct and is sworn, as a sworn document. What are the difficulties in getting
somebody who has sworn a document and take him to Court, and is prosecuted. What
difficulties do you face in that area?

Samuel Kivuitu: What offence.

Peter Maundu: For the offences...

Samuel Kivuitu: You know the law is very clear in this country, that the law must say this
is a criminal offence or it is an offence. Unless the law says so, that's why you find that at
the end of every Act there will say, general something offence. They say, “Where
provision say this and this; that will be an offence”.

Peter Maundu: Very well.

Samuel Kivuitu: That what they always say. There is nothing like that in the Code of
Conduct. It’s just silent. So you can't call it a crime. The only thing which I, I do not
know I didn't hear anybody ask that question is why the Election Offences Act is never
enforced because that is the most powerful weapon. It's an offence. You get imprisoned
for three years for doing the same things which we are fining people, and we can't get the
fine we have to run around with them. You get arrested and that is the end of the matter.
In fact if you arrest a politician they become very apologetic, which we can't. I know that,
we'll arrest him, very apologetic; he'll not touch it again.

Peter Maundu: Yes.

Samuel Kivuitu: But it is never used.

Peter Maundu: Yes now realizing you that you have a weak law to make sure that you
manage the election more particularly within the last, say three months, when violence
tends to crop up and more perpetuated by politicians, have you made any concrete
proposals to parliament to say this is the way I want the law changed so that I can be in
charge of this process and very firmly?

Samuel Kivuitu: We have made those proposals to the Attorney General not to
parliament because we don't have a direct route to parliament. The only relation we have
with them is during elections after that we are nothing.

Peter Maundu: Perhaps, tell the Commission what sort of thoughts have you generated
through the Attorney General for purposes of legislation?

Samuel Kivuitu: For example, we have suggested that we could have the same kind of
arrangement as they have in India where the Commission can cancel an election without
going to Court and you go to Court yourself. Cancel an election and organize another one
but you are free to go to Court and challenge that. And for your information in India you
don't just take the Electoral Commission to the Districts Magistrates Court. You must go
to the Supreme Court. Here even the Electoral Commission you can take it to the chief
because it is not respected. So if we have an arrangement like that where we can be able
to do that and I said I know it is very effective to tell a politician, “You are going to
cancel your election”. It’s very effective. They will stop. So that's one of the proposals
we have made and we think it can work.

Peter Maundu: Yes and with your experience, that you have security of tenure, you have
been at the helm of ECK for now about 10 years, don't you think that you have been
dilatory in coming with legislation that of course would stop violence as an integral part
of our campaign system?

Samuel Kivuitu: Yes. What are you saying? I have been what?

Peter Maundu: You have delayed. You have...

Samuel Kivuitu: No, no, not delayed. I didn't write only the other day. We have been
writing for years since our experience in 1997 when we found that those provisions were
not working and you remember they were introduced in 1997 and when we found there's
a limitation, we have been writing and we have said so. We have addressed many, many
gatherings in this country, professional gatherings. I have addressed and they said so, we
must be given those powers, the Commission not me. The Commission should be given
some more powers so that it can be able to handle that. We should also be able to play a
part in the Election Offences Act. At the moment we are just spectators.

Peter Maundu: Yes. Now it is that sort of situation that perhaps you need to overcome
having, of course, having the experience what engagement have you engaged parliament
powerful enough to make sure that the legislation that you require comes through?

Samuel Kivuitu: We have written to the Attorney General, I think we have no other route
to Parliament.

Chairman: Two minutes.

Peter Maundu: Now, just the last one. There has been the perception that the election
would not be free and fair. At what level because we had civic, we had parliamentary and
we had presidential. Did you...
Samuel Kivuitu: No what was being stated was, what was our presentation is saying that
reading the speeches, you heard, I heard two ministers saying that in Africa, the
government in power cannot be removed during a General Election. What is that minister
saying? They can't be defeated, so if they are defeated they were not defeated. I've also
heard the other side say the same thing so even if they lose, they have not lost. That is
what we are saying. That there was that – both sides were – each one was actually telling
people if we lose, we have not lost.

Peter Maundu: Yes and though finally in your own assessment, would you be kind
enough to give the Commission the persons or the institutions or who might have caused
the violence.

Samuel Kivuitu: Who?

Peter Maundu: Yes.

Samuel Kivuitu: No. As I said I am sure now this Commission knows more about the
violence problem than we even ourselves know because most, some most of us are
biased, we have concluded it is the Electoral Commission, then there are others who look
to find other excuses and as a result everybody in Kenya likes blaming the other. If you'll
have noticed when the children went on strike in schools, parents blames children,
children, parents and then everybody blames the other. There's nobody here in Kenya
who accepts responsibility including the Electoral Commission. And so as a result, only a
group like this one which is independent having gone round the country, they can sample
out and say these are the reasons which we have received. I cannot myself.

Peter Maundu: Much obliged, my Lord.

Chairman: Is there any questions from Civil Society.

Harun Ndubi: Yes indeed. Bwana Kivuitu, about the Electoral Code of Conduct, you
seem to suggest that it is giving you power that has no capacity for execution. You can't
enforce it. Who is the author of that document? The code of conduct?

Samuel Kivuitu: The Code of conduct?

Harun Ndubi: Yes.

Samuel Kivuitu: My Lord and Commissioners, Mr. Ndubi had promised me not to ask
me questions anyway.

Harun Ndubi: But then I promised you that I wasn't obliged to keep promises made
during lunch.

Chairman: Mr. Ndubi has nothing to do with this Commission; he has been given
permission to assist this Commission in a certain way, not to assist anybody else.

Harun Ndubi: Indeed. Thank you, my Lord.

Samuel Kivuitu: What was the question then?

Harun Ndubi: Yes, the question was, who is the author of the Electoral Code of conduct?

Samuel Kivuitu: Parliament.

Harun Ndubi: It's made by parliament?

Samuel Kivuitu: Yes, it's a schedule - schedule three. Third schedule.

Harun Ndubi: But as it is in terms of reality, did you as a Commissioner have input to the
Code of Conduct as it is or was it dropped as this is legislation?

Samuel Kivuitu: It was dropped as a legislation. Remember in 1997, the electoral

Commission was still too weak to be able to participate in some of these things.

Harun Ndubi: Right. Now, the Director of NSIS was here and I think my colleague
Majanja has asked you about this, that they kept writing letters to you among other
agencies regarding their various forms of intelligence. Did you receive more than one
correspondence from the Commission - from the NSIS?

Samuel Kivuitu: Yes I did.

Harun Ndubi: What was the general trend of their correspondence to you in regard to the
2007 election?

Samuel Kivuitu: One, they were pointing out areas where we would expect problems
during preparation for elections so that we can make arrangements for voting in those
areas, and the other one was to make arrangements for the transmission of the election
results so that there won't be dissatisfaction by any group, you know, honest
dissatisfaction by anybody. That was the thrust of their letters. Otherwise they were also
mentioning that there is likely to be violence, one, irrespective of who is announced to
win and two, even if no announcement is made. So to them there was going to be
violence. That's the indication we got.

Harun Ndubi: Right. And in the context of asking you to make appropriate arrangements
for transmission of results, what did you understand that to mean?

Samuel Kivuitu: I didn't understand it to mean anything because as I said, we wished we

could have introduced - we could have used the computers but it was too late. And even
that communication actually came around October. That was coming almost every week
around October.
Harun Ndubi: Yes, but the letter that we saw that I'm referring to, my Lord I forget the
exhibit number, but it's one of those letters produced by the Director NSIS, it was about a
week before the election.

Samuel Kivuitu: Yes, but a week before the election what can you do?

Harun Ndubi: That is what I'm actually saying that the...

Samuel Kivuitu: Yes.

Harun Ndubi: That they were writing telling you to put in place a proper mechanism for
transmission of results when you had done all the work...

Samuel Kivuitu: It's already - yes it's already impossible to do anything else.

Harun Ndubi: And I'm concerned or rather I would like to understand from your end why
this was an issue since you had previously handled about three competitive elections
prior to this one?

Samuel Kivuitu: No, in fact they used to be called Special Branch, now they are called
Intelligence, in fact every time we have elections, they always supply - they supply us
with their own intelligence regarding security and such other problems, it's not the first
time. Of course this is the first time I have seen a letter talking of taking care about
transmission of the results but otherwise they always tell us the situation which we are
likely to meet in terms of security because we rely on police.

Harun Ndubi: Now, that's okay. About security is fine but I'm wondering about this - the
transmission of results is your constitutional mandate as ECK, that's my point really. So
why would the intelligence want to say or to advise you on how to transmit the results
when in any event it is your primary responsibility?

Samuel Kivuitu: Me I took it as an honest observation. I didn't have any hard feelings
about it. I took it as an honest observation from a professional.

Harun Ndubi: Did you, with hindsight now, when you were mentioning about the
possibility of cooking results in the normal way you understood it, but you also suggested
that your officers had switched off their phones?

Samuel Kivuitu: In fact that is not untrue. It is true they had switched off their telephones
- quite a number of them had switched off their telephones and when the - after the
elections we asked all of them to write reports to explain what happened and how they
transmitted the results. And quite a number of them admit they had switched off their
telephones because they say they were getting too many calls from up here - I think it's
down, down there from our officers asking them to tell them the results, how far have you
gone? And they didn't want that because their training had told them that "don't release
any results until you finish counting". And so because they didn't want that persistent -
those persistent telephone calls, they switched off some of them. Others say, because of
the air-time they'd been given, they were given limited air-time by the Electoral
Commission; the air time had got finished so the telephones were not working. So they
had good excuses what else can I do?

Harun Ndubi: Yes, and do you recall that when you threatened or rather do you recall
threatening that if they delayed any further you would announce the presidential tally
without those results having come in?

Samuel Kivuitu: No, I don't remember that. I can't do that because the law is very clear.
We can only announce results either when we have received all the results, or when the
results remaining to come in are so insignificant that they can't make a difference.

Harun Ndubi: Would your act have been...

Samuel Kivuitu: That is what actually we did in 2002.

Harun Ndubi: Yes, would that have been the situation because it is alleged that you
publicly said, "I will declare the results with what I have"?

Samuel Kivuitu: No, I don't remember saying so.

Harun Ndubi: Alright. Do you recall that these officers of yours from the ground
suddenly after some significant delay arrived as if in a group?

Samuel Kivuitu: No, you know I didn’t see the returning officers when they arrived. I
was seating in an office which is on almost next floor and they were arriving at that room
called Tsavo Hall, is it Tsavo hall or something...

Harun Ndubi: Right.

Samuel Kivuitu: That was the tallying room so...

Harun Ndubi: So you wouldn't...

Samuel Kivuitu: I didn't see them I didn't see how they came...

Harun Ndubi: So you wouldn't deny or admit it?

Samuel Kivuitu: No, I don't know.

Harun Ndubi: Do you recall whether in terms of the election results from different
political party strongholds, that it was apparent that elections from one particular side, the
results had all come and only the presidential results from another side were being
delayed when the presidential ones - I mean the parliamentary ones were being
announced?

Samuel Kivuitu: This I learnt later, not very early because I was not announcing results
myself. If you look at the schedule which was prepared, I was not one of those who were
announcing results...

Harun Ndubi: Yes?

Samuel Kivuitu: As a result I didn't know exactly which areas had come but at the time
when there was congress on 29th when we said okay, let's go down and do - go upstairs
and go through all the files. At that time it's when I learnt that certain areas - results had
come from certain areas but there was also another general area where they hadn't come.

Harun Ndubi: Of one particular candidacy, the presidency and the parliamentary had
come?

Samuel Kivuitu: No, no, no, parliamentary had not come. All the results from that area
had not come.

Harun Ndubi: I see. Now, I'm asking that to reflect back on the question of NSIS. Did
they also ask you in any of those correspondences to allow their officers either to disguise
or to receive badges as officers or observers of the ECK?

Samuel Kivuitu: They applied - now this did not come from the headquarters. This came
from the Nairobi office. They applied to become observers, election observers and I
wrote back and I said they are not qualified. They cannot be election observers and if
they were to be taken it would be one of the biggest blows to the administration of
elections.

Harun Ndubi: I see. You've got the correspondence because that...

Samuel Kivuitu: I can bring you that correspondence. I can bring it...

Harun Ndubi: At least that is where you stood to protect the integrity of the elections...

Samuel Kivuitu: Yes, yes that one I can bring.

Harun Ndubi: You would be able to give it to the Commission?

Samuel Kivuitu: I'll give it to the Commission.

Harun Ndubi: Now, in terms of the administration of the election itself, you assigned - as
a Commissioner you assigned yourselves work to different individual Commissioners to
different regions in the country, correct?

Samuel Kivuitu: That's correct.

Harun Ndubi: And it's been subject to public comment that Commissioners were assigned
to their areas of origin. What do you say?

Samuel Kivuitu: Most of them were.

Harun Ndubi: Why was that so?

Samuel Kivuitu: I can't see anything wrong if they are honest.

Harun Ndubi: Yes, but you have been...

Samuel Kivuitu: Judge Nyarangi when he was appointed a magistrate, he was taken to
Kisii and he dealt with Kisiis properly. So I cannot see what's wrong with people working
in their own area so long as they are not partisan.

Harun Ndubi: No, you've been saying here that there are questions about perception
about integrity of the electoral process, and about ethnicity around the electoral process,
both in competition and the voting itself. That's why it's important that the ECK is not
perceived as an organisation that is also moving along the trends manipulated by
politicians.

Samuel Kivuitu: I agree entirely.

Harun Ndubi: But unfortunately that is what you seemed to propel or to promote by
sending commissioners to their areas of ethnic origin?

Samuel Kivuitu: If you take the Mombasa one, the Coast one, one comes from a very
small tribe called Nduruma; I can't see what his effect is in Tana River which are not in
the Mijikenda. I'm just giving an example because even though the Commissioners
maybe coming from that area, they are not necessarily of the same ethnic composition as
the area except probably one or two places.

Harun Ndubi: Maybe I put it the other way, is there something that arrangement was
supposed to promote in terms of promoting the integrity of the election or did we risk the
perception that they had gone to manipulate - to assist their people to vote in a particular
way?

Samuel Kivuitu: They were not meant to do so and if they did so, that was wrong. As far
as we were concerned, as far as I was concerned, we should be honest. If we are not
honest and independent then we should not be in the Commission. So it doesn't matter
where I work. I myself was given Nairobi.

Harun Ndubi: Okay, I understand you, I can see - I will respect your age. About
appointment of commissioners it is true that prior to 1997, Commissioners were
appointed by the President upon recommendation or nomination by political parties?
Samuel Kivuitu: In 1997, yes.

Harun Ndubi: And in 2007, a few months prior to the election the President appointed
some commissioners?

Samuel Kivuitu: Correct.

Harun Ndubi: He did not consult the political parties?

Samuel Kivuitu: I don't know...

Harun Ndubi: Well it's not...

Samuel Kivuitu: How can I know which people the president consults?

Harun Ndubi: No, no. formally. That's what I mean really. There was no formal
knowledge that there would have been formal consultation. There are two questions I'm
asking so that we look ahead at what we could do to enhance the integrity of our election.
What would you say the impact of political party representation in the commission would
be in advancing or undermining ECK independence?

Samuel Kivuitu: It can be bad. Political parties if they feel that they are not part of the
administration of the elections it could be detrimental to the commission the way the
perception - the way the commission will be looked at by everybody.

Harun Ndubi: Much the same way the integrity of the commission will be dented if we
see commissioners as representing political parties and not Kenyans generally?

Samuel Kivuitu: Yes if that perception is there. If the perception is there. But you are
talking about those who were appointed. I don't know whether they belong to any
political party. I know they were just appointed like Mr. Ndubi would be appointed.

Harun Ndubi: Or maybe belonging to one because they were appointed without
consultation?

Samuel Kivuitu: That is possible for someone to perceive that way. This is a political
game elections, and that kind of perception is easily to make. But the point is that the
commissioners who were appointed, if you see their CVs, they are very qualified people.
Now if anything else there is, I don't know I think it's a question of perception.

Harun Ndubi: And...

Chairman: Two minutes, please.

Harun Ndubi: Yes, my Lord. About the -- still on the integrity of the election we continue
using the same black and opaque ballot boxes that the supervisor of election used?

Samuel Kivuitu: No ours are even more black. The supervisor of election used to use
steels and lock. We use felt-made bags, yes boxes but use seals.

Harun Ndubi: I wonder if you think that that is one area you need to -- of reform so that
we can have transparent ballot boxes because they again contribute to the integrity and
trust in the electoral process?

Samuel Kivuitu: If they are going to help to improve the integrity and trust in the process
I'll accept but if I were to speak the reality I see nothing in those boxes because of the
procedures you follow before you start the elections, before you start polling and when
you close the polling, and the fact that you are counting those ballot papers there and
there. So you start by checking whether there is anything in the box. Agents check and
find there's nothing. You then seal that box. You get the agents to seal also the box. Then
the voting takes place when it is finished it is unsealed in the presence of everybody and
the papers are poured down there in the presence of anybody. Unless they go through the
skin of the nini I can't see how...

Harun Ndubi: But - No Mr. Kivuitu...

Samuel Kivuitu: So what I'm saying is if it can improve the perception well, but in truth it
will do nothing. We were in fact contemplating buying transparent boxes because this has
been agitated for by certain groups and we had said okay for purposes of improving
perception let us do it. But then we found we had about 51,000 boxes still intact because
we had bought more boxes expecting there to be a run off last time. They were there and
the rules of disposing off those boxes which are there with the financial regulations are so
stringent that if we were to follow them in - to destroy them we would not have held
elections, and we can't buy others until those are destroyed.

Harun Ndubi: That's alright but what I mean is this, without going...

Chairman: Two more questions.

Harun Ndubi: Without going into the details of petitions that are going on, you are
obviously aware that there have been situations where there are discrepancies about the
ballots.

Samuel Kivuitu: They are.

Harun Ndubi: So you can't say that those ballot boxes are - they are foolproof processes
above them?

Samuel Kivuitu: Yes even the transparent one will have discrepancies. Elections are
always full of discrepancies.
Harun Ndubi: There were two allegations about the ECK that I want to put to you
together as one question. One was related - prior to the election, allegations by
candidates, some candidates that there were ballot papers parallel printing ballot papers
going on somewhere in Europe and another was that there were NSIS officers in the 13th
floor of your - of that building, Anniversary, what do you say of that and what did you
say at the time?

Samuel Kivuitu: For the NSIS officers I did write to the party which complained and
asked them to come over and show us the place, because the intelligence people do not
go about wearing badges so that you can know what they are and they can be with you
even here they are here, I can assure you. So we wanted them to come and show us the
room and then we can find out who they are and they didn't come. As regards the parallel
ballot papers if any ballot papers had been printed we would have known. If there was an
attempt I won't know. Maybe there was an attempt but if there were any we would easily
have know coz we get our ballot papers and then there's a way of trailing their source up
to the polling station and back.

Harun Ndubi: My last question, did you encounter problems related with the printing of
your own ballot papers and related to delays and perhaps rescheduling of perhaps who
was printing them where?

Samuel Kivuitu: Yes, a South African company which had won a tender to print the local
government election ballot papers came about two weeks before the nomination of the
candidates and they said it cannot deliver within the time and that was a big shock
because it meant now we had to look for another company to do so and so we took the
next one according to the procurement rules the next company which was a British
company. So we had to call the boss of that company to Kenya and talk with him and
find out whether they were going to do the - they are going to be able to satisfy the order
and they came and he satisfied us because id he didn't then we would have postponed the
local government elections but that alone also causes its own problems when you have a
situation like that.

Harun Ndubi: Yes, is it because you had not done due diligence on the South African or
another?

Samuel Kivuitu: No in fact, we had sent people there to go and inspect their firm their
capacity and they came back with a very good report.

Harun Ndubi: As the Attorney General...

Chairman: Is it anything to do with national and international athletes Mr. Katwa...

Harun Ndubi: My Lord, I was just...

Chairman: Do you have any question?

Harun Ndubi: I was going on the final.

Chairman: Mr. Ndubi, please. Mr. Ndubi.

Harun Ndubi: I shall sit down, thank you very much.

Chairman: Pass on the microphone.

Katwa Kigen: Mr. Kivuitu, you in the presentations you've made by your own self and
through the other commissioner, you've made the contention that part of the explanation
for the violence is the perception that indeed the results were delayed?

Samuel Kivuitu: Yes.

Katwa Kigen: You've...

Samuel Kivuitu: That’s part of it.

Katwa Kigen: Yes. you've also said that the situation in this - in the year 2007 is not
distinct from other situations because violence have visited other elections and that in fact
you have incidences where violence preceded these particular elections, isn't it?

Samuel Kivuitu: The only difference is that this time there was the intensity of the
contest. That's got a bearing to also the violence is likely to be more intense.

Katwa Kigen: Okay before I ask you the question I wanted to ask you, does ECK take
any responsibility at all for the violence?

Samuel Kivuitu: No.

Katwa Kigen: Absolutely none?

Samuel Kivuitu: No.

Katwa Kigen: May I ask you as a Kenyan, which indeed you are, it is true that the height
of the violence took off on 30th of December when you yourself announced the
presidential results?

Samuel Kivuitu: It started earlier. It started when - even by the time we were thrown out
of that hall, people were already fighting and in fact Nairobi had already been deserted by
that time.

Katwa Kigen: May I ask you the question again? I'm saying the height of the violence
was sparked off by your announcement of the presidential results...

Samuel Kivuitu: That I don't know...

Katwa Kigen: On that...

Samuel Kivuitu: That I don't know because I wasn't anywhere else other than...

Katwa Kigen: I thought at a certain point you said you are a Kenyan?

Samuel Kivuitu: No I wasn't there.

Katwa Kigen: You were not in Kenya?

Samuel Kivuitu: I was not in that place where the violence was.

Katwa Kigen: You and you're telling this co...

Samuel Kivuitu: So I don't know what it starts - when it - that which you say was sparked
was sparked.

Katwa Kigen: Mr. Chairman, you are telling this commission looking at them in the face
that you were not aware that your announcement of the presidential results triggered off
the height of violence in this country?

Samuel Kivuitu: I don't know that.

Katwa Kigen: You don't know? Now you say that from time to time you have expressed
your concerns to the police and that you have worked very closely with the police in
regard to instances where there are acts which bother on criminal actions, isn't it?

Samuel Kivuitu: We do.

Katwa Kigen: Can you tell this commission if you have any schedule of any OB entries
where the commission has made reports of?

Samuel Kivuitu: No we never got to report we write letters to them.

Katwa Kigen: You only write letters?

Samuel Kivuitu: We write letters to them.

Katwa Kigen: Do you make any follows-ups?

Samuel Kivuitu: We expect them to do their jobs. If we tell them like when Kuresoi and
Molo we had discussions and as you heard from the presentation we also had an ad hoc
committee which had the Attorney General's representation and the police. Police were
permanently in our office that is from the headquarters for that purpose.
Katwa Kigen: So after you...

Samuel Kivuitu: So those consultations are the ones which then follow.

Katwa Kigen: So after you write the letter you don't do anything else you wait for them to
take action?

Samuel Kivuitu: Of course.

Katwa Kigen: You don't take any stock, Okay. This issue of the delay is it true that you
were asked for a re-tally and audit of Form 16As?

Samuel Kivuitu: No that was asked on 29th and it was done.

Katwa Kigen: Are you saying all the Form 16As were audited and formed the total votes
that you announced?

Samuel Kivuitu: By 30th I was told all the forms were there.

Katwa Kigen: But you can't say of yourself that you got that confirmation?

Samuel Kivuitu: No I never went and confirmed from the files because I got to trust the
people that I'm working with officers.

Katwa Kigen: Okay. May I ask you that confirmation came from your own staff or from
the people or you got a counter confirmation from the people who had raised concerns
with regard to those forms?

Samuel Kivuitu: It came from my officers...

Katwa Kigen: You didn't...

Samuel Kivuitu: From our officers.

Katwa Kigen: You didn't counter-check with the people who had raised the concern?

Samuel Kivuitu: They were no longer near. Immediately we were thrown out everything
went haywire and there was no one - nobody we could consult unless you go and start
running around the town looking for people.

Katwa Kigen: It is possible that you could call, isn't it?

Samuel Kivuitu: With what? I've no telephone calls for anybody else. I didn't know their
contacts.

Katwa Kigen: Now apart from the usual 16As you were also asked for a re-tally - did you
- weren't you?

Samuel Kivuitu: Not 16As it's 16.

Katwa Kigen: Yes, were you also asked for re-tally?

Samuel Kivuitu: No, nobody asked for re-tally.

Katwa Kigen: Nobody asked for re-tally?

Samuel Kivuitu: Yes. The cause of most of this commotion was Molo and once we
established that the fellow who was shown there as the returning officer for Molo was not
true he was not the one and that fellow who was the returning officer confirmed those are
his results. Then what else can I do?

Katwa Kigen: Mr. Chairman in retrospect now, we are about 6 months after the elections,
as you sit in your office are you satisfied that all the 16As which constituted the total tally
that you announced were genuine?

Samuel Kivuitu: Until I check them I can't say.

Katwa Kigen: You...

Samuel Kivuitu: We could not touch them immediately I finish that you remember the
law is very clear we should not touch those documents.

Katwa Kigen: So you are telling this commission you haven't gone into that direction
thereafter?

Samuel Kivuitu: I have only seen photocopies.

Katwa Kigen: And do they look authentic even in their nature as photocopies?

Samuel Kivuitu: I'm not...

Katwa Kigen: Okay.

Samuel Kivuitu: Writing expert, I just see handwritings there, I don't know whose they
are.

Samuel Kivuitu: Mr...

Chairman: Two minutes, Mr. Katwa.

Katwa Kigen: Mr. Commissioner, you were asked why you were announcing the results
for the parliamentary results in contradistinction from the results of the presidential
results that question was asked to you directly, isn't it?

Samuel Kivuitu: Why I was doing what?

Katwa Kigen: Why you were selectively announcing only parliamentary results and not
the corresponding presidential results?

Samuel Kivuitu: We never announced parliamentary results. It's not our work.

Katwa Kigen: You didn't declare the results for respective constituencies?

Samuel Kivuitu: That is - even in the law it is the work of the returning officer under the
law.

Katwa Kigen: You didn't do anything like that at KICC?

Samuel Kivuitu: No.

Katwa Kigen: That's surprising. Anyway, isn't it true that the question that you've just
been asked and which you kindly volunteered being that the results were being cooked
was in response to a specific question you said that issue of cooking in a direct answer to
a question you were asked, isn't it?

Samuel Kivuitu: No I -- there was complaint why some results from some areas were not
coming in...

Katwa Kigen: I have two minutes may I ask again?

Samuel Kivuitu: And that is why...

Katwa Kigen: When you say the results were cooked it was in response to a question
directly asked to you, isn't it?

Samuel Kivuitu: What do you imply?

Katwa Kigen: You didn’t...

Samuel Kivuitu: What's the question? You know if you’ve had put the question to me and
said...

Katwa Kigen: I didn't want to...

Samuel Kivuitu: You were asked this and the you replied…

Katwa Kigen: I didn't want to anticipate that but let me remind you, the question was,
“why are you delaying the results?” and you answered with an explanation and the
explanation was that because in your view results were being cooked.

Samuel Kivuitu: No.

Katwa Kigen: It wasn't?

Samuel Kivuitu: That was not the question. There was a complain general...

Katwa Kigen: Okay what was the question?

Samuel Kivuitu: There was a general complaint there was no question.

Katwa Kigen: Okay what was the general complaint?

Samuel Kivuitu: Complaint that the results are being delayed from certain area and I said
why they should be delayed I gave - I said for example Limuru here which is just next
door they had not arrived...

Katwa Kigen: You also said Kajiado…

Samuel Kivuitu: And I could not understand...

Katwa Kigen: You also...

Samuel Kivuitu: But in 2002 results in Nairobi were among the last to come here, in
Nairobi. In one case we actually had to go and get results from a lady returning officer in
the - from the church from her handbag. In - so I was saying this the more you delay the
more people think evil of the electoral commission.

Katwa Kigen: Now Mr. Commissioner...

Chairman: Last question please. We still have a long way to go with the rest of the
counsel and we only have 40 minutes to do that.

Katwa Kigen: Okay one question.

Chairman: Yes.

Katwa Kigen: Mr. Kivuitu, you seem to take the view that as far as you are concerned
nothing so bad went on at KICC, and don't you think do you sleep with easy conscience
don't you think you should really step aside considering how horribly you managed the
elections both yourself and all the commissioners?

Samuel Kivuitu: I don't know if that is part of this inquiry.

Katwa Kigen: That should be all, my Lords.

Chairman: I suspect sir you are saying they were the cause of the violence and therefore
they should step aside. So, were you the cause of the violence and if so why can't you
step aside?

Samuel Kivuitu: Never, never.

Chairman: With all the Commission.

Samuel Kivuitu: The cause if we go as I say you know the reasons now – the
Commission knows the reasons. If we were to go because of that even everybody in
parliament should go home and others.

Chairman: Any questions from Law Society of Kenya Rift Valley and West Kenya if
they are represented? They are not. Question from IDPs and Crimes Against Humanity?
There's one – only one of you can now proceed.

Njenga Mwangi: Yes my Lord.

Chairman: Take your time as initially.

Njenga Mwangi: Yes. Bwana Chairman let me maybe be the only person so far to
commend you for carrying out very good elections last year. The civic education and the
peace meetings by ECK were appreciated and I think the problem came later and we the
Commission is investigating that but having said that, would you confirm to this
Commission that the worst violence actually did not take place on the 30th after the
announcement but the worst violence took place afterwards that means on the 31st and
1st but not on that 30th?

Samuel Kivuitu: Sir, my Lord and fellow Commissioners that the question of when
violence started when it intensified I do not know. Immediately I announced the results
and I went home I did not leave my house for about four days because I was unwell even
throughout that time when we were towards the election I wasn’t feeling well I had a
heart problem and I had to go and take a rest. So I didn't exactly see or notice when the
violence peaked or did not peak what I know is that violence continued.

Njenga Mwangi: After the 2005 referendum according to your presentation is that the
commission was - the Electoral Commission was commended by all parties for well...

Samuel Kivuitu: Not all parties.

Njenga Mwangi: Work well done.

Samuel Kivuitu: Not all parties.

Njenga Mwangi: Okay, the winning party.

Samuel Kivuitu: Yes, the winning group.

Njenga Mwangi: The winning group commended you.

Samuel Kivuitu: Yes.

Njenga Mwangi: And this is the group that came to condemn you in 2007?

Samuel Kivuitu: I did not check whether they are the same faces. Maybe they are the
same.

Njenga Mwangi: After you say...

Samuel Kivuitu: But at least I don't think those who condemned me or condemned us but
I think particularly me after the referendum I don't think they are the same as they
condemned me this time.

Njenga Mwangi: Okay after the referendum – the 2005 campaign for the referendum the
country was polarised because the debate was not mostly about issues but about what
divisions, what would you say if I put it to you that the issues concerning the
constitutions were not the ones that were amplified but I would say tribal sentiments and
groupings were emphasized?

Samuel Kivuitu: That is – that generally true during the campaign that was generally
what the theme which you could see.

Njenga Mwangi: And you would say confirm too that the referendum – the period after
the referendum their campaigns started almost throughout that camp – campaigns started
almost immediately after the referendum throughout 2007 December there were
unofficial campaigns pitting the two sides the ones who had lost in the referendum and
the ones that had lost?

Samuel Kivuitu: I don't know whether I would call the campaigns but at least they went
on with their recriminations.

Njenga Mwangi: And I've seen also that you've identified or the commission has
identified the debate on Majimbo as one that has caused a lot of problems in this country.

Samuel Kivuitu: Yes, Majimbo means regionalism and when we got our independence
the constitution we had provided for regions and each region had some federal factors –
elements and as a result people felt like they got their own independence for their own
areas and when this was done away with in 1965 now when – by that time it had been
vilified and made look like very bad system and so when it now was being activated –
reactivated the usual early debate started all over again and it is a very divisive debate.
Njenga Mwangi: But I will -- will you confirm Majimbo debate at independence or the
regional governments we had at independence did not envisage a situation where people
who had migrated to other areas would be ejected?

Samuel Kivuitu: No.

Njenga Mwangi: But the Majimbo debate that was brought in during the referendum or
let me say since 1992 especially in Kapsabet, Kaptet and Narok people were promised –
the indigenous people were promised that the migrant communities in those regions will
be kicked out if Majimbo – Majimboism came in?

Samuel Kivuitu: What I know – I don't know about that whether Majimboism was
mentioned, what I know is that the violence just prior to the elections in 92 and 97 had
ethnic foundation. There was clearly the idea was to cleanse an area of certain tribes and
leave those who were supposed to be indigenous in those areas.

Njenga Mwangi: So, the idea was basically to disenfranchise a section...

Samuel Kivuitu: Yes, a section.

Njenga Mwangi: Of the voting in that community?

Samuel Kivuitu: That is true.

Njenga Mwangi: Again I would like you to confirm to this Commission that the
allegations of rigging were made in preparation of the rejection of the results if the results
did not go the way the people who made the allegations thought.

Samuel Kivuitu: I won't – I won't know but what we our observation is that both sides
were very rigid about who will win. So, if we don't win, we actually have won. So, if you
don't announce us then the elections must have been rigged.

Njenga Mwangi: Who was making allegations about rigging? Especially let me take you
to two instances. Let me take you to Mumias.

Chairman: Remember you have two minutes.

Njenga Mwangi: Yes, Mumias on 27th of December, in Mumias town 27th of December,
there was allegations that there were ballot boxes, ballot papers being marked in the
business premises of one Mr. Thiru.

Samuel Kivuitu: Mr?

Njenga Mwangi: Thiru, in Mumias, if you do remember?

Samuel Kivuitu: I don't remember.

Njenga Mwangi: You don't remember? But when the police investigated they found there
were no ballot papers.

Samuel Kivuitu: Yes, politicians are fond of making allegations.

Njenga Mwangi: The same thing happened in Kericho. In Kericho there was allegation
that papers were being marked in a specific church and again when the police went with
the politicians they did not find the ballot papers. What I'm trying to put to you is in those
two places the people who were alleging that there is rigging or ballot papers were being
marked were supporters of one party.

Samuel Kivuitu: If they were yes?

Njenga Mwangi: Is that a fact, they were supporters of one party?

Samuel Kivuitu: I can't remember those allegations about boxes being filled with --
stuffed with ballot papers I can't remember that one.

Njenga Mwangi: Even the pick-up being burnt in Eldoret town? It was supposed to be
ferrying…

Samuel Kivuitu: That one yes, yes.

Njenga Mwangi: And the people, people had been – the expectations of certain members
of this country had been raised to such an extent that they could not accept any other
results other than a win.

Samuel Kivuitu: Maybe, I don't know.

Njenga Mwangi: Do you think the people who went down to kill, maim and burn
properties. Do you think they were paid by politicians to do that?

Samuel Kivuitu: I don't know but what I am saying...

Njenga Mwangi: What do you think that they were?

Samuel Kivuitu: I can only suspect, I cannot say I know. I can only suspect because I
cannot understand how somebody because of the election results would go to a church
and burn the people in that church. I cannot understand what else could motivate a person
to go and do that, burn the church and burn the people inside there or even kill a child. I
can't understand. And you say it is Electoral Commission.

Njenga Mwangi: Thank you, Mr. Chairman neither would we.

Samuel Kivuitu: You know the next thing you are going to do is to say that Al-Qaeda is
entitled to burn our people here like they have done. That is exactly what we are saying
when you say what I've heard some people say.

Njenga Mwangi: Lastly Mr. Chairman the electoral – the constituencies in this country.
Would it be correct to say that throughout especially since multi-partyism came in, that
there have been a lot of gerrymandering with our constituencies?

Samuel Kivuitu: No, I think there is always a misunderstanding – something which a lot
of us do not know and I can tell you this. The present disproportionality in constituencies
was brought about by parliament itself in 1965 when they were abolishing Senate and
senators were senators – a senator for a district. What they did instead of going home and
seeking elections. They amended the constitution and increased the constituencies by the
number of districts. They told each district to donate a constituency for the senator. So a
district like Lamu which has no population, very little population all over sudden got two
members of parliament. And that is how this – this genus started and to correct that has
not been easy.

Now in 1986, when the Commission because Commission was non-existent it was only
there by name. In 1986, the Electoral Commission carried out constituency review and
when it finished its work instead of – it actually published a legal notice showing the new
constituencies but it made a mistake of submitting the report to the president for his
approval which is not there in the constitution. And as a result of that – and that was you
know that time you know there was only one party. When they did so then the hawks –
the KANU hawks were invited to come and look at the document. They changed the
whole document and created constituencies the way they wanted but same number. And
that is how another example of how this came about and those are ones who are
published. And those two – the other – the earlier legal notice was not even cancelled by
the new one. Both of them were published on different days. I have always said the
constituencies we have are illegal because the first one was not revoked.

Njenga Mwangi: Can you…

Samuel Kivuitu: So these things have not been going because of the Electoral
Commission. In 1997, '96 the Commission tried to still work out how it could get this
situation improved. It couldn't get very far. And this time we were determined to do so
but parliament could not accept to increase the number because their partisanism.

Njenga Mwangi: Can you...

Chairman: On that frustrating note. Do we have any questions from prisons? Prisons, no.
Military?

Captain Wanjiru: No questions.

Chairman: No questions. NSIS and Provincial Administration?

Aden Mohamed: Yes, Mr. Chairman you have confirmed that the NSIS as in the previous
years in 2000 and 1997 advised or written letters advising on security issues?

Samuel Kivuitu: Yes, in fact previous to 2002 they used to give a comprehensive report,
they would give for the entire nation.

Aden Mohamed: When would that be done, which month of the year?

Samuel Kivuitu: No it would be done early it would be done before nominations.

Aden Mohamed: You would also confirm that is in accordance with the mandate of the
National Security Intelligence?

Samuel Kivuitu: I find it useful, I always find it useful. I would in fact ask for it because
they are the ones who know where, what situation, what problems there are as regards
security?

Aden Mohamed: And regarding this letter that advised you about transmission of election
results. You were told it was done a week before. Is that correct?

Samuel Kivuitu: I can't remember, I'll have to get the letter.

Aden Mohamed: But the letter that is here actually, it was done on the 6th of December,
not a week before the elections.

Samuel Kivuitu: Yes, if it is sixth it's sixth.

Aden Mohamed: But was that the only letter that you got from...

Samuel Kivuitu: No we had got earlier as I said the letter which came last was the letter
which was telling us there is likely to be violence after the announcement of the results
irrespective of who wins, that’s the one which came last. But otherwise were other letters
which came from September I mean October

Aden Mohamed: Advising on all aspects of the...

Samuel Kivuitu: Advising us areas where we are likely to find problem. Already some of
them we knew so it wasn't something very new.

Aden Mohamed: So you’d confirm to this Commission that indeed the National Security
Intelligence Service did their work properly?

Samuel Kivuitu: As far as am concerned they gave us proper advice.

Aden Mohamed: And you are happy with what they did.
Samuel Kivuitu: I think the Commission is, not me.

Aden Mohamed: No the commission is not you personally, is the Commission happy
with what they did.

Samuel Kivuitu: Yes it.

Aden Mohamed: Now, let’s revisit this issue about some NSIS officers on the 13th floor
of Anniversary Towers. Who sits on the 13th floor? Who occupies that floor?

Samuel Kivuitu: I am not very sure I know who is there but one of the floors which was
being mentioned was occupied by a technical team which was financed through UNDP,
they were occupying part of that.

Aden Mohamed: Technical team dealing with the elections?

Samuel Kivuitu: They were working with us, these are the people who had been given
funds through UNDP to carry out in conjunction with us voter education, media
campaign and also improving the capacity of the Electoral Commission to administer
results, so they had a floor there. Half a floor but I can't remember who else were in those
floors.

Aden Mohamed: So, the party that complained about these NSIS officers did not come to
point out to that floor

Samuel Kivuitu: No, no they didn't.

Aden Mohamed: And you did not carry out investigations yourselves.

Samuel Kivuitu: We knew who were there, I mean some were private people, they were
running there own businesses they had been there for years they were not new. So we
won't know, so there was nothing to carry investigations about.

Aden Mohamed: So there was no truth in the allegation in other words, according to you?

Samuel Kivuitu: I don't want to be that categorical, the point is that nobody came to tell
us, these are the people, nobody and I challenged them to come and do so, nobody came.

Aden Mohamed: Most obliged.

Chairman: Any question from the Kenya Police Service and Administration Police?

Evans Monari: Just a few questions and I’ll try and be quick oblivious of the time. Mr.
Kivuitu are you satisfied that the Electoral Commission of Kenya conducted free and fair
elections?
Samuel Kivuitu: Am satisfied and I can say that the only problem which seems to have
hit us was the manner the results were transmitted, there's nothing else.

Evans Monari: What you are concerned about is the manner in which the results were
transmitted? But you are satisfied that you carried free and fair election?

Samuel Kivuitu: Yes, yes we did all that is done and I have done elections – I have seen
elections in many, many parts of the world.

Evans Monari: You requested for and you were given a number of police officers and
other security personnel to assist you in carrying out the elections.

Samuel Kivuitu: Yes

Evans Monari: Were you satisfied with the conduct of the personnel that you got?

Samuel Kivuitu: Yes we were satisfied, you know one of the things that we always pity
the police for is for, the police force was about 40,000 and we required 55,000 policemen
and they still gave us policemen and added National Youth Service, forest guards and
others and that was good , we were satisfied.

Evans Monari: In the conduct of the elections 2007 do you have any complains against
the personnel that came to assist the Electoral Commission?

Samuel Kivuitu: No

Evans Monari: You are satisfied with the conduct?

Samuel Kivuitu: Yes

Evans Monari: Of how they conducted themselves.

Samuel Kivuitu: We are satisfied.

Evans Monari: You have heard allegations about administration policemen or other
security forces having been used to rig the elections – having been alleged to have
marked ballot papers. Can you confirm to the nation whether in fact that is true?

Samuel Kivuitu: Well I can't say what was happening in the ground but to those who are
saying so have got to provide proof because I cannot see how a policeman can go and
start marking ballot papers in the presence of agents, in the presence of candidates, I
cannot see.

Evans Monari: Did you in fact get any evidence of policemen having been involved in
that sort of exercise?
Samuel Kivuitu: No, no.

Evans Monari: Did they in fact in their duties, were they in contact with ballot papers

Samuel Kivuitu: No, they are not supposed in fact they not supposed even to enter the
room

Evans Monari: Now given the situation as it is now – are we out of the problem – is this
country able to conduct an election without violence?

Samuel Kivuitu: We need a lot of prayers, we need a lot prayers because unless we
change our attitude and feel we are one nation, and be tolerant I mean if you take a
country like Belgium, they are divided into two ethnic groups and like when they held
their elections they could not form a government, there was no fighting they stayed
without a political government but the civil service still continued for over a year. And
these are the kind of thing that I'm asking myself whether we are able to reach that
situation and they are ethnically polarised but nobody was killed. Nobody was injured,
those are things which I don't when we arrived there I think we need a lot of prayers
because even the churches, the religious groups they also let us down.

Evans Monari: That's correct, just one final question. People there was general violence
there was serious violence in this country and police have been accused of having used
excessive force. Do you think there’s anything else the police would have done to quell
this violence other than confront it in the manner that they did?

Samuel Kivuitu: You know one of the things which I'm most ignorant about is security
that one I'm very ignorant so I'll leave that to the police to say. Whether that is how it is
handled or not. Being a lawyer you know our attitude towards the police is not one of the
best.

Evans Monari: Just one other final question to clarify. You said you had been thrown out
of the hall. Could you just tell the Commission who threw you out of the hall and who
was thrown out of the hall and why?

Samuel Kivuitu: If that clip which was being shown had gone up to its conclusion you
would have seen how we had to get out because very, very prominent people were
standing on the table where I was, raising their hands and eventually I was told a shoe
was thrown at and God put it aside and it didn't hit me. So that kind of - confronted by
that kind of thing we couldn't stay there we had to get out.

Evans Monari: That's all your lordships

Chairman: And finally Mr. Annan

Annan: Mr. Kivuitu can we lay one ghost to rest and that is this. The ECK has been
blamed or rather you in the person of Samuel Mutua Kivuitu have been blamed for being
the immediate cause of what is now called post-election violence. Do you accept that
accusation?

Samuel Kivuitu: No, I don't accept.

Annan: Is there any truth to it?

Samuel Kivuitu: I can't see the truth. I've just explained I can give you many examples of
what I read in the papers what was done by people. It has got nothing to do with
elections.

Annan: That was slightly after 4 o’clock on the 30th of December when you announced
the results?

Samuel Kivuitu: Yes

Annan: Am I correct in saying that the result you announced was the result that was given
to you by those who had been dealing with the tallying of the results particularly the
presidential results? That was the official results?

Samuel Kivuitu: Yes, the officers who were responsible for tallying. Very senior officers
in the Commission and who have been doing it even since 1992 are the ones who brought
the results and I read the results which were brought to me. I had no other source of
results other than those officers.

Annan: And was with the agreement and consensus with the other Commissioners. It was
a not a Kivuitu result.

Samuel Kivuitu: No, it was not. But you know a lot of people regard the Commission as
Kivuitu's. And they don't even know I've got brothers also called Kivuitu.

Annan: You do confirm that, that was the result of the ECK? The announcements…

Samuel Kivuitu: Those were the results which are announced after the Commissioners
authorised me to announce the results as soon as we get what was remaining to be added.

Annan: Will you please confirm to this commission that on the 29th of December an
audit was held the whole – throughout the whole of the 29th to the morning of the 30th an
audit of the results?

Samuel Kivuitu: That was done and that was my suggestion after I noticed there was
dissatisfaction I said the whole night each party sent two agents and we took two agents
for each party which had a presidential candidate and then have Commissioners and
Officers and go through the 210 files and establish what the position is.

Annan: And that audit took place?

Samuel Kivuitu: That audit took place.

Annan: And that was the result that was brought to you?

Samuel Kivuitu: Eventually those were the results of what was found that was - that were
brought to me.

Annan: So those who participated in the audit from across the political divide know that
that was the result?

Samuel Kivuitu: No there are some – by the time they finished the audit there were still
some forms they had not traced some Form 16 they had not traced yet and this they all
agreed which ones and they were traced and they were found by the Commissioner. The
Commissioners went down and they traced them and so they were added up and when I
went to announce the results I first – the first thing I said is that we have checked again
and this is what we have found but they could not finish that. I started receiving very
serious threats and having been beaten in 2002 I didn't want to be beaten again.

Annan: We'll come to the threats in a minute, Sir. But in an answer to the advocate for
Tecla Lorupe Foundation, would you confirm to this Commission that you announced the
results having received all the necessary Form 16s?

Samuel Kivuitu: I was told all the Form 16s had been received and I announced the
results because I insisted we will not announce this results considering the closeness of
the scores we should not announce the results unless we have received all the forms.

Annan: Now, it has also been said that you announced the results in what is called
sometime a hidden room in the KICC. Can you explain to this Commission the
circumstances which led you to announce the result other than at the media centre?

Samuel Kivuitu: When the media centre was just impossible when we were thrown out of
the media centre by the violence which was quite obvious I said there we are going to
look for another place to announce the results and we got a room which is just opposite
this room is a big room it's as big as this one. They call it VIP Lounge and it's a -- it's
used for public exhibitions and that's where we went. There was nothing private about it.
This building has no private rooms it's all public and it was a public building and I could
see cameras like I can see here, I could see microphones in front of me and I cannot see
why I had to find out who is here and who is not here. When I heard what I had later I
was surprised that communication was cut off so that it was only one media house which
was able to receive and relay the news. Those things I won't know.

Annan: You do confirm the presence of other microphones and cameras?

Samuel Kivuitu: Yes they were there and they were not only cameras there were also
people manning the cameras.
Annan: Yes, I'm sure our technology has not gone that far that they operate themselves.
So Mr. Kivuitu it is not untrue that you announced the results secretly - it is not true at all
that you announced the results secretly?

Samuel Kivuitu: It's not true.

Annan: There is another matter that is associated via the press with you which we would
like you to clarify to this Commission and that regards a question from the media and
your response to it as to, it is said that you told the – when you were asked whether
Kibaki won you said you did not know. Can you tell this commission exactly what took
place.

Samuel Kivuitu: That question I was asked in my house three days after the elections.
And the question – that was not the question put to me. The question was put to me was,
“was Kibaki elected fairly?” The word fairly has got a meaning it’s a concept. It involves
an analysis of the entire electoral process, from the time parliament was dissolved to the
announcement of the results. When that question was put I said this, I am not sure
because there are certain things I want to check. That’s what I replied. Those things we as
a result of after announcing and finishing the – and after taking the certificate to
honourable Kibaki. I went home and my secretary, my secretary was with me in the
office there, found an envelope sealed on my desk. And that envelope she took it and she
sent it to my – to the office and she rang and sent somebody to the office they collected it
a day after. When I opened the envelope I found altered results, of presidential results
altered, not on the Form 16 but on a computer print out and as a result of that I started
saying to myself may be there was cheating with these results. And so I said until I check
certain things I don’t want to say so. Those are some of the things but of course since am
nothing to the media they just cut it short.

Annan: But that was a video interview. Was it not?

Samuel Kivuitu: Yes.

Annan: Would you like the commission to – this commission to have a glimpse of what
you actually said? Because it is on tape.

Samuel Kivuitu: I don’t know whether its -- that’s for the commission if they want to see
it.

Chairman: Is it part of what we watched?

Annan: Yes, yes it is.

Chairman: The interview?

Samuel Kivuitu: What they watched.

Chairman: Is it part of what we were watching? Or can it be played now?

Speaker: It can be played out now?

Chairman: Well, can you take one minute to do that and I’ll give you, after that I’ll give
you two minutes to complete your examination.

[Presentation]

Chairman: Start from the beginning.

[Presentation]

Annan: It is clear in that excerpt, the main issue was whether Mwai Kibaki won -- fairly
won the election.

Samuel Kivuitu: That’s true.

Annan: And to which you answered you do not know until you see certain documents.

Samuel Kivuitu: Yes.

Annan: Which can only -- you can only do with the permission or order of the court.

Samuel Kivuitu: Yes. Originals, if we were to see the originals.

Annan: Mr. Kivuiti since this is the commission on post-election violence please confirm
that as early as the morning of the 28th you were informed that riots had started. 28th of
December.

Samuel Kivuitu: Some of the Returning Officers had said so, on their way coming
bringing the results, in the afternoon they were saying they found roadblocks illegal
roadblocks and they had to take a deviation from the main road.

Annan: When did you personally get to know that, riots had started even in Nairobi?

I think 30th, when the whole town was deserted. And when Nairobi centre is deserted
you know there are problems.

Annan: Now you were asked about the treatment of women in politics. Will you confirm
to this commission that you went out of your way to have meetings with all women
political aspirants?

Samuel Kivuitu: That is true.

Annan: Across the political divide?

Samuel Kivuitu: All of them.

Annan: You also met with all the political parties.

Samuel Kivuitu: We met political parties many times, civil society many times we were
working together.

Annan: And the idea was to ensure that there are free, fair and peaceful elections?

Samuel Kivuitu: That is true.

Annan: Would you confirm that – to this commission that you also has meetings…

Chairman: Two more questions

Annan: Meetings with the idea of expanding the number of constituencies where
populations are very high?

Samuel Kivuitu: Yes, and we gave our own assessment and I took a step which is
normally never done and I wrote to every member of parliament. Explaining to them,
what we think should be done giving them the areas we think should be divided, should
get more constituencies. Identifying the areas trying to pursued them to change – to grant
us permission to add constituencies. By then they started quarrelling. Each side was
saying actually we are favouring this side, we are favouring this side. So eventually
nothing came out of that.

Annan: Would you confirm Mr. Kivuitu that the election of 2007 was the most
comprehensive exercise that you had undertaken?

Samuel Kivuitu: No, I think the most difficult exercise I have ever done was the
referendum, but in terms of preparedness we took more work – we did more work in
preparation for this election than ever before.

Annan: And you’ll say that you were properly prepared to carry out the elections?

Samuel Kivuitu: We were. The people voted.

Chairman: I have four questions, I have four questions from this side…

Annan: Much obliged thank you.

Chairman: Very quick questions from this side. Now the lamentation about the power
you have under the Electoral Code of Conduct without enforcement mechanisms. What
would you rather have as a recommendation made about this? Is it the abrogation of that
code and if it is what would you rather have in its place if it is an improvement of it, what
suggestions do you have?

Samuel Kivuitu: My Lord the code is okay, is only the – when you give any power you
should also provide for their enforcement. If it is fining provide a provision for
enforcement like we say, “if the fine is this in default jail for so many days”. That's what
we do in all the other laws. We it’s just silent. The enforcement is what is lacking.

Chairman: Yes, that has been clear for some time. What has been the problem in
introducing that particular clause?

Samuel Kivuitu: My Lord, if you ever deal with the government when it comes to
changing electoral law, it's a most frustrating thing. Every time the electoral regulations
are taken to parliament just about three months before the election, every time. And we
would have made these proposals four years ago but it will go three months before the --
those are the problems.

Chairman: So the problem has been basically parliament?

Samuel Kivuitu: Yes.

Chairman: Now, would you suggest that the Electoral Commission should have a police
force of its own?

Samuel Kivuitu: No, I won't like that because I know it will not be afforded by the
government. In India what they do is, during elections they determine whether they need
the army or the police. If they need the army they ask for a battalion or two and then they
now command that battalion in that area. That kind of thing might help. But then the
police here is not that big. As I said they were 40,000, we needed 54,000. So they've got
to borrow from people who are not even disciplined.

Chairman: Yes, but even when they are seconded to the Electoral Commission they are
still under the command of their officers. Now, what mechanism would be put in place to
ensure that they are responsible to the Commission?

Samuel Kivuitu: Yes, that is actually one of the problems because the Police Act says the
police are under Commissioner of Police. The National Assembly and Presidential
Elections Act Section 3, says the officers we take become election officials, they are
under us. Both of them are Acts of Parliament. If it were in the constitution it would be a
different matter.

Chairman: Yes. Now the voter and Civic Education that you conducted considering that
ultimately it's the youth that became kind of central power in the – in the entire process of
politics, did you make any special or give any special attention to the youth as you
conducted the voter and Civic Education or you're just conducting Civic Education
generally whoever wanted to listen let them listen?
Samuel Kivuitu: No the youth were targeted by a group called IED with our support they
were actually – it was actually financed by Australian government and part of it by some
other government. They carried out the program which was targeting youth only and it
was very effective because even the turnout by youth has never been as high as this time.
The youth were there and there are many things which we must do to make our youth feel
that they belong to this country leave alone just elections.

Chairman: Alright, the issue again about Commissioners being assigned to supervise
elections in their own areas of origin and I understood you to say that there was nothing
wrong with that perhaps there was not but I was wondering whether this was a matter that
was discussed in plenary by all the Commission and a resolution made to that effect or
was is a matter that a particular officer – an exercise carried out by a particular officer or
the Chairman for that matter saying this is how it's going to be done?
Samuel Kivuitu: It's not recorded in the plenary but consultations do take place between
the Chairman and the Commissioners and it became quite clear that for some reasons we
had to have that arrangement as it was. On reflection probably just to avoid the wrong
impression that should not be done again in future otherwise people may think that
people are – the Commissioners are part of the any attempt to rig the elections.

Chairman: Would this be one of the lessons learnt from that election or would you say
there are other lessons learned and if so is the Commission addressing whatever lessons
that have been learned?

Samuel Kivuitu: Yes we have actually sir we have given our views to the other
Commission; Judge Kriegler's commissions as to what we think – areas where we think
should be change. The most important one is the relaying of the results that has got to
change.

Chairman: And finally and in order to address the future in relation to election violence
whether pre or post. Are you doing anything now to prepare for the 2012 election
focusing on the issue of election violence? Is there anything being done? And if so what?

Samuel Kivuitu: Not now. And I'll tell you the reason is, you know after this election as
you have seen from the media we became devils, and when you become a devil you stop
thinking. So we have been thoroughly paralyzed. But as soon as we finish with this
Commission, these submissions we shall now start working.

The question of violence is not just a question for Electoral Commission. Electoral
Commission as far as we are concerned we are able to deal with violence during the
election campaign period and up to the Election Day. We have very elaborate ways of
handling that.

What we don't have is a system of dealing with violence outside our areas of jurisdiction
and after the elections and those are areas which should be debated by those who are
involved with security, with Electoral Commission together. It's not just Electoral
Commission alone.

Chairman: Yes. Thank you very much. Thank you very much Chairman for the assistance
that you have given to this Commission apart from the one or two documents that you say
will be available to us. We thank you and release you from any further attendance before
this Commission. Ladies and gentlemen we adjourn the hearings in public until 9:00
O'clock tomorrow morning.