The institution to watch in Kenya's election

The March 4 general election in Kenya is being touted as a potentially transformative moment. The violence that killed over 1,000 people in the wake of the country's last election in 2007 shocked the world, confirming, for many outsiders, the stereotype of an incurably dysfunctional Africa. Now many will be watching to see whether the spate of sweeping reforms undertaken since 2007 can carry Kenyans peacefully through this historic poll and reaffirm the country's position as the region's most stable state.

Much of the reporting is likely to focus on the problems of tribal or ethnic divides. Yet there is a much better argument for paying attention instead to the crucial Independent Electoral and Boundaries Commission (IEBC), which will be overseeing the vote. If the IEBC succeeds in asserting the ground rules for a fair election, Kenyans can rightfully celebrate a hopeful watershed in their country's recent history. By the same token, a poor job by the commission could easily trigger a repeat of the violence that has resulted in several of Kenya's leading politicians being indicted by the International Criminal Court. Indeed, it was the questionable judgment of the former electoral commission -- which first accepted the dubious results of the 2007 vote and then hastily facilitated the swearing-in of incumbent President Mwai Kibaki -- that, within minutes, sparked violence across the country.

The stakes are also high this time around, because this election is being held according to new ground rules embodied in the constitution of 2010, created partly in response to the tragic events of a few years earlier. The new constitution provides for far-reaching devolution, opening up the possibility of a cure to the regional rivalries that have so often hobbled democracy in the country. But that potential can only be realized if the commission ensures a free and fair poll.

At first it looked as though the IEBC might live up to the expectations of the optimists. It enjoyed high levels of public confidence, in part because there was a concerted effort to make a break from the past. The search for commissioners was a transparent process, with each candidate's interview open to the public. The final team selected was also purposely diverse, representing many of Kenya's minority communities.

Unfortunately, it's been all downhill from there.

Far and away the most spectacular of the commission's failures has been the one that has gained the most domestic and international exposure: Its failure to block the presidential candidacy of Uhuru Kenyatta despite his indictment by the International Criminal Court. That's a move that has not only bruised Kenya's reputation in the international community, but also opens up the likelihood of major instability in case Uhuru (and his indicted running mate William Ruto) actually win. The court had set April 10th and 11th as the days the men must appear before it, but the trial has been postponed till later in the year to avoid clashes with the second round of run-off elections. It still however, raises the possibility that Kenya's newly elected leaders might have to take a break from running the country to defend themselves in the Hague.

To be fair, the IEBC has few options. A series of laws, passed in recent months, watered down constitutional integrity standards for public office holders, eliminated educational requirements for certain offices and removed checks on politicians' powers to party-hop at will. Such laws allow those with pending criminal cases to run for office and strip relevant commissions from investigating and prosecuting violators. Still, the IEBC's silence on the issue of candidates' lack of integrity, which extends to lower-level candidates who are known drug lords, criminals, and others guilty of engaging in ethnically divisive hate speech, begs questioning.

It's all part of a general attitude of laxity toward the law exemplified by the Commission's failure to enforce the most basic rules -- a dysfunction that extends all the way to such mundane details as the procurement of biometric voter identification kits and ballot papers, a process that has been marked by allegations of corruption. The Commission has compounded its own deficiencies by its unwillingness to live by the same principles of accountability and openness that it's supposed to have applied to the election.

But perhaps the most tragic of the IEBC's mistakes has been its failure to help provide voters with information critical to making an informed decision on Election Day. Although the IEBC released its voter education curriculum in October 2012, it waited until three weeks prior to elections to begin its voter education program. Needless to say, most voters are still in the dark about who the candidates are, especially at the local level, what the new devolved arms of government are, and what the newly created local elective officers will do.

Kenya is facing a crossroads, and the events of Election Day could determine which fork in the road to choose. Let's hope voters seize the spirit of the new constitution and demand a public commitment to making and maintaining a break with a painful and disturbing past.    

Seema Shah is a public policy researcher for the Africa Center for Open Governance in Kenya. Her focus is on elections and ethnic violence. 

Photo by CARL DE SOUZA/AFP/Getty Images


Do Bangladeshis want justice or revenge?

On Thursday, a Bangladeshi tribunal found Delwar Hossain Sayeedi guilty of crimes against humanity committed during the 1971 war of independence from Pakistan. The tribunal condemned him to death -- in stark divergence from their ruling in the case of  his political colleague, Abdul Quader Mollah, who received a life sentence from the same court. In response to the Sayeedi verdict, Jamaat-e-Islami, the Islamist party in which both Sayeedi and Mollah hold prominent positions, stepped up its protests against the tribunals. The result was a spate of violence that has now left more than fifty people dead.

Since Mollah's trial on February 5, Shahbag Square in central Dhaka has been filled with thousands of Bangladeshis protesting against his sentence. But most of them are not Islamists acting in his defense -- they are, instead, actively seeking the death penalty for him and other convicted war criminals. To these Bangladeshis, who call themselves the Shahbag Square Movement, Mollah is known as the "butcher of Mirpur," and they are eager to see him to pay for his crimes with his life.

Both Mollah and Sayeedi have been tried for collaborating with the Pakistani army in what former U.S. diplomat Archer Blood famously called both a selective genocide and a "reign of terror." In a span of nine months, some 3 million Bangladeshis were killed. The atrocities committed included the mass rape of over 200,000 women.

Mollah was widely expected to receive the death penalty, so the milder sentence he actually received from the court caught everyone off guard. Given the "V for victory sign" he flashed upon leaving the court, apparently it surprised even him.

Photo by STRDEL/AFP/Getty Images

The Shahbag movement kicked off the day of Mollah's trial and has been gathering steam ever since in an unexpected display of unity for the country. Some reports estimate the crowd filling the square at up to 200,000. The Shahbag protestors have maintained a remarkable commitment to non-violence, even despite the brutal murder of Rajib Haider, a blogger who sympathized with the movement. In a stirring speech, author Zafar Iqbal praised the Facebook generation for taking to the streets to demand justice for a history most did not directly experience.


The popularity of the Shahbag Square movement's call for the death penalty for war criminals shows just how deep the wounds of 1971 still run. Despite the overwhelming evidence of their responsibility for these crimes, the accused were allowed to pursue their political careers without any recriminations for 40 years. For the protestors, only execution can really serve to atone for the men's guilt.

But is all the bloodlust actually warranted?

Jamaat-e-Islami previously took to the streets against the tribunals, which they've denounced as politically motivated and part of a campaign to ultimately ban the party. There have also been irregularities with judges being pressured to make decisions hastily. Bangladeshis are also debating whether actively pursuing the death penalty is subverting true justice.

In a 2010 op-ed at the start of the trial, noted political scientist Jalal Alamgir made this argument:

Although local collaborators will take the stand, our real goal should be to let the world know, through an open and fair process, who was responsible for the genocide, even though they may be outside our legal jurisdiction. A new generation of Pakistanis may then hear about a version different from what they have been told. Americans may learn about the dishonorable role of their erstwhile leaders. Even Bangladeshi schools may begin to discuss 1971 in open terms.

That is why the trials, however limited, must proceed. Capital punishment, while entertaining some trigger-happy activists, will only derail us by refocusing attention on the verdict rather than the proceedings. It will invite controversy; it will alienate madrassas, a crucial audience; and it will greatly reduce the international acceptance of the trials.

We must not spoil this momentous opportunity. If the trials are able to expose the perpetrators and collaborators of genocide, and in the process shame them permanently in the face of truth, they will achieve far more success than what is offered by summary punishment. They may even help us escape the cycle of convenient partnerships and celebratory vengeance that marks our political culture.

But pro-Shahbag citizen journalist, Hasan Ahmed, disagrees:

Well, when you hang somebody for killing 2 - 3 people it's contrary to human rights. But when GENOCIDAL MANIACS like Osama bin Laden are killed in an extrajudicial process, people around the world support it (myself included), all the governments support it. These alleged war criminals also orchestrated a GENOCIDE in 1971. These alleged war criminals helped killing 3 MILLION people, 200,000 women were raped.
The convicted war criminals, if they are given life imprisonment, could actually be pardoned by the president. This sort of 'political pardoning' has happened & nobody can be sure it won't happen again [if Jamaat-e-Islami comes back to power].

The tribunal appears to have listened. Sayeedi will hang, and there are eight more verdicts to be announced. Shahbag protestors have done an incredible thing by coming together to address their country's violent past. But one wonders whether more violence -- this time committed by the state -- is really an answer. 

Neha Paliwal is the Editorial Assistant for Democracy Lab. 

Photo by STR/AFP/Getty Images