The Commonwealth, which monitored the elections, said keeping Richard Chesoni as chairman of the Electoral Commission 'could reasonably be interpreted by the opposition parties as an unmistakable signal that the government would use its powers to secure an advantage for the ruling party'.
'Justice Chesoni's initial lack of transparency, his unwillingness to meet the opposition parties, and his apparent collaboration with the Attorney-General . . . confirmed opposition misgivings,' the report said.
But although critical of Mr Chesoni, the Commonwealth Secretariat has withheld documents made available to the observer group which detail Mr Chesoni's financial problems and bankruptcy proceedings. Members of the observer group were told the documents would be published in an appendix to the report, but this was not done.
'When the final document was signed, it was agreed that the documents would be part of the appendix. I am surprised they are not,' said Lord Tordoff, one of the British members of the observer group. 'I signed the final report on the understanding that they would be published.'
It is understood that there was a fierce debate within the observer group when it was shown the documents after the election on 29 December. The chairman, Telford Georges, was 'horrified' and wanted them published, according to Commonwealth sources. Some members of the observer group argued that their countries were on good terms with Kenya and that publication of confidential documents about the chairman of the Electoral Commission would upset that relationship and would go beyond their brief.
Judge Georges was persuaded not to use the documents in the report but to append them as an annexe. He told the Independent two weeks ago that when the report was published they would be available for inspection at the Secretariat. But, on publication, they are neither in the report nor the annexe. On Friday a spokesman for the Secretariat said they were not available.
The documents include the report of the Judicial Service Commission of 1990, which said Mr Chesoni's conduct had been 'inconsistent with the position, dignity and judicial integrity of a justice'.
They also detail his first resignation in 1984, because of debts and his sacking by President Moi in 1990. The existence of the documents was revealed in the Independent on 11 January as well as evidence that Mr Chesoni's pounds 550,000 debts had been written off on the orders of the government after he became chairman of the Electoral Commission.
Mr Chesoni has denied the report and said that he paid off most of his debts in 1984. In a statement released in London Mr Chesoni quoted Judge Georges as expressing 'satisfaction with the impartial manner in which the electoral commission accomplished its . . . task'.
Although the Commonwealth report falls short of condemning the election, it will give ammunition to opposition parties that denounced the polls as fraudulent. The integrity of Mr Chesoni was one of many criticisms of the report, which condemns electoral malpractice found by the observer group in every aspect of the election.
It lists as unfair: the registration process in many parts of the country, the nomination process, the lack of transparency on the part of the electoral commission, intimidation, administrative obstacles and violence, partisanship of the state-owned radio and television, and the reluctance of the government to unlink itself from the Kanu party.
In spite of this, the observer group concluded: 'We believe that the results in many instances directly reflect, however imperfectly, the expression of the will of the people.'