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.
that's just where the problems begin.
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.
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.
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
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
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."
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?
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
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.
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