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Are U.S. election watchdogs enabling bad behavior in Kenya?

In recent testimony to Congress, three American non-profit electoral assistance organizations, all of whom worked on Kenya's general election in March -- the International Foundation for Electoral Systems (IFES), the National Democratic Institute (NDI), and the International Republican Institute (IRI) -- reported that last month's presidential vote was "credible," thereby negating the still-increasing amounts of evidence that the electoral process was fundamentally flawed. Their view was based largely on a recent ruling by Kenya's Supreme Court, which upheld the presidential election result. The three groups also cited the "acceptance" of the Court's decision by presidential runner-up Raila Odinga. 

And that's just where the problems begin. 

The Kenyan Supreme Court's detailed judgment reveals numerous problems. Legal scholars have decried its reliance on questionable outside sources and its lack of academic rigor while civil society groups have lambasted it for its refusal to engage with the vast array of evidence presented. These criticisms cast doubt on the Court's independence, thereby threatening public confidence in the judiciary. If this continues, it is hard to join these three organizations in their belief that the public will continue to rely on the Supreme Court as an impartial arbiter. 

Meanwhile, Odinga's call for peace in the aftermath of the ruling is hardly an acceptance of the veracity of the Court's statement. Rather, he made it clear that he did not understand how the Court could have looked at the "massive malpractices" documented by his team and still deliver its ruling. In fact, he said, "In the end, Kenyans lost their right to know what indeed happened." His call for Kenyans to move forward should not be confused with a conclusion that the election was free and fair. His recent statement that the IEBC cannot be trusted to run another election says it all. 

As part of its testimony, IFES also somewhat condescendingly said, "ultimately, the new Kenyan president, Mr. Kenyatta, was elected by a margin of 8,000 votes, or 7/100ths of a percent of the total votes cast, making it inevitable that the result would be challenged." This statement implies that a legal challenge was inevitable, presumably because Odinga would have challenged any close result, even one set in the context of an open, verifiable, and transparent electoral process. The fact remains, though, that the lack of transparency set itself up to be challenged. In fact, the petition against the veracity of the results was brought by civil society groups, (a fact not even mentioned to the U.S. Congress), and focused on the myriad discrepancies, errors, omissions, and inexplicable alterations noted throughout the electoral process. 

The crux of the civil society position was the voter registry, which had been changed multiple times before election day. The Court's apparent refusal to confront this issue, especially when the election commission has to date not explained why all eligible voters were not included; why the commission's numbers still do not add up; the massive increases in the registry in Kenyatta strongholds; and what the final number of registered voters actually is, sends the message that the opacity of the commission is permissible. There was no mention of evidence showing the potential impact of the changes to the register on the final result. Analysis shows that without these changes, Kenyatta would have secured just less than 50 percent of the total vote, which would have resulted in a run-off. 

The high voter turnout, pointed to by all three organizations as evidence of a successful election, is highly suspect, given that  it is based on problematic tallying forms  that show at least 28 polling stations reporting over 100 percent turnout. These organizations go on to claim that the main problem with the management of the election was the failure of the electronic voter identification and results transmission systems, which IFES describes as "a failure of project management." IFES in fact claims that it was "the paper register and paper ballots [which] ultimately...ensured the integrity of the Kenyan election." What these statements leave out is that both the electronic systems were specifically put in place as critical checks on the manual process. They were meant to prevent instances of multiple voting, ballot box stuffing, and the alteration of the manual forms as happened in 2007. Indeed, the alteration of manual forms was at the heart of the problem in this election as well. These issues seem to go well beyond problems of "project management." 

At the end of the day, was this is the process that NDI claims was "an opportunity for the Kenyan people to redeem the country's reputation?" Given the evidence above, can these official results really be trusted? 

IFES even credits the election commission with ensuring that this election "was not a repeat of the 2007 vote." Such statements wrongly imply that the default in Kenya is violence. And while it is true that there was very little conflict this time around, the problems with the process were very much a repeat of the last election, minus the politicians' calls for violence. Instead of praising the election commission, these organizations should have called on them to answer the unresolved questions about the process, especially those related to the voter registry. 

Would these sorts of problems be tolerated in the United States? It seems doubtful. Why is Kenya being held to such a low standard? Given the context of Kenyan electoral history and the country's efforts to reform the electoral system, it is even more important to point such weaknesses out. Endorsement of this election by the United States as credible makes it seem as if the problems that transpired during this election are negligible, when in fact many Kenyans are still wondering whether their votes were actually counted at all. 

To their credit, NDI and IFES have emphasized the need to take stock of the election and focus on lessons learned. It will be interesting to see what those exercises find. In the end, though, Congress has barely heard enough to truly know if the election was in fact free, fair and credible. The 2013 election was not free and fair, and it was not truly different from the one in 2007. A look beyond this testimony is critical for them -- and anyone -- interested in the entire story behind the Kenyan election.    

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

PHIL MOORE/AFP/Getty Images

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Breaking up is so hard to do

April 26 marks 50 years since King Idris as-Senussi of Libya declared the end of federalism.  Libya's prime minister during the time, Mohieddin Fikini, introduced a constitutional amendment passed by the country's three states (Cyrenaica, and Fezzan, and Tripolitania) to unify the country which would now be made up of ten governorates. (Tripolitania was divided into five governorates, Cyrenaica into three governorates and Fezzan into two.)

When Libya gained independence in 1951 as a federal monarchy, it was led by King Idris as head of state, with succession designated to his heirs. Local autonomy was exercised through provincial governments and legislatures, as granted and protected by the constitution. Benghazi and Tripoli alternately served as the national capital for the country.

History highlights some of the grave challenges Libya's founding fathers had to overcome in the process of establishing the country. Nationalist leaders in Tripolitania pushed for a republic regime, but had to pull back due to fears from regional leaders in Cyrenaica and Fezzan that heavily-populated Tripolitania would dominate them. After years of negotiations and consultations, (facilitated and overseen by the United Nations and the post-World War II colonial powers), a consensus was reached to adopt a federal monarchy. 

The debate over federalism has been revived once again following the February 17 revolution that led to the toppling of Qaddafi and his regime. It is becoming one the main topics that will affect the shape of the political future of the country. This debate rose to the forefront of Libyan politics after the Conference for the People of Cyrenaica, on March 6, 2012, after which an announcement was made declaring autonomy for Cyrenaica and the revival of federalism and the constitution of 1951.

Interestingly, the current debate over federalism in Libya also revolves around the right representation of geographical affiliations and identities in Parliament and a call against continuous marginalisation. Nonetheless, opponents to federalism base their argument on the threat to national unity and fear of partition, as well as unfair representation -- once again -- for the people of Tripolitania. However, the experience of independence could help understand the current developments, forces behind them, and their significance to the political future of post-Qaddafi Libya.

As stipulated in Chapter 7 of the 1951 constitution, the issue of regional and population representation was overcome by adopting a bicameral parliament, which was divided into a Senate and a House of Representatives. Eight senators represent each of the three provinces, while the representatives' allotments are assigned to each province at a ratio of one to every 20,000 residents, with no province to receive fewer than five representatives.

On March 15, 2012, the ruling National Transitional Council (NTC) amended the constitution-making process to allow for greater regional representation. The amendment came after a bold bid by tribal and political leaders to declare autonomy in the oil-rich Cyrenaica, which raised fears of partition. The amendment states that 60 experts (modelled on the 1951 constitution drafting committee) would draft the new constitution.

This will not be the only time Libya's new leaders would need to look back at the history of their founding fathers, especially as they negotiate for mechanisms by which wealth and power will be shared in the new Libya in order to achieve stability. The issue of regional representation (between the three old provinces) and equal representation of the population will be one of the main sticking points as Libya's Constituent Assembly seeks to draft the country's new constitution. Thus, for now, the bicameral parliament arrangement adopted in the 1951 constitution seems to be the best option to overcome this issue.

When tensions were rising high in Cyrenaica over the influence the different regions will have in the new Libya, and with fears of partition becoming real, Libya's new leaders looked back at its contemporary history for ways to defuse these tensions and they succeeded. However, Libyans should not allow history to pull us back more than 60 years in time; we should use history as a tool to safeguard unity and achieve progress by considering the constitutional legacy of 1951 in terms of rights-based principles for the different regions and the consensus that led to Libya's independence in 1951 and subsequent unification.

Mohamed Eljarh is the Libya blogger for Transitions. Read the rest of his posts here.     

MAHMUD TURKIA/AFP/Getty Images