Establishing Accountability in Kenya’s Electoral Processes

By Ben Nyabira

Most Kenyans are shocked to learn that in some countries, especially developed democracies, elections could drag for days before votes are tallied and results announced without public uproar. This points to a high level of mutual trust between the electorate and the custodians of their electoral systems.

This is incomprehensible to the average Kenyan voter who perceives a delay in tallying and transmission of votes as a manipulative scheme to favour certain candidates. In as much as this might not be the case, the electoral commission’s ability to carry out its mandate equitably and deliver accurate results is questioned despite its purported independence.

However, this mistrust has its roots in the Kenyan society’s current circumstances where justice is yet to be a guiding concept. Historically, this missing component in electoral management has resulted in manipulation or claims of election fraud, and tragic violence in almost every general election in Kenya.

Individuals who believe they have been discriminated against by the electoral process have often filed court petitions citing electoral irregularities. The most significant was in August 2017 when the Supreme Court declared the presidential results null and void citing violation of the constitution. It ordered another elections in October same year.

However, the 2007 post elections violence remains the darkest blight in Kenya’s history. When the opposition claimed that the elections were manipulated, suspicions about the country’s electoral integrity arose and as a result, violence erupted claiming 1,300 people and displacing over one million.

Following the violence, the government established the seven- member Justice Johan Kriegler led Independent Review Commission (IREC) to evaluate all aspects of the 2007 general election and electoral process concerns that could lead to enhance electoral responsibility. IREC scrutinized constitutional, legal flaws and inconsistencies, and the organization and conduct of the 2007 elections.  These included voter registration, civic education, polling and logistics, security, electoral commission’s structure and composition. Other components were presidential vote tallying and counting to determine the integrity of election results.

The Commission found that 71 percent of Kenya’s voting-age population was registered, and about 1.2 million deceased people in the voter database; women and voters under the age of 30 were significantly under registered. Members of marginalized communities also had difficulty obtaining national identity cards required for voting. They also noted that Kenya’s electoral process was plagued by fraud, as evidenced by the high turnout, sometimes over 100%, in the strongholds of major political parties due to suspected ballot stuffing, organized voter impersonation, vote buying or bribery; partly attributable to exclusive strongholds where only the majority party was represented during polling.

They concluded that the first-past-the-post election system, simply majority win, which has the potential for real or perceived distortion, as well as the gerrymandered, out-of-date, and highly biased pattern of seat delimitation, were all fundamentally problematic and badly implemented. Another factor contributing to the explosive political climate was the inability to accurately count or transcribe election results, which led to numerous elementary errors such as omissions and duplications.

The polling process was also tainted due to errors in transmission and reporting of results, which led to a distorted picture of the elections. In addition, the Kenyan society has long tolerated, if not actively encouraged, electoral process perversion; a materially flawed electoral constitutional and legal framework; and the need for a long-term commitment, as the culture of electoral lawlessness has developed over many years and cannot be reversed without a concerted, non-partisan commitment to electoral integrity on the part of all parties. They also recommended amendments to improve electoral processes.

Addressing agenda four

According to The Elephant magazine 2018 report, most election-related concerns and recommendations had been handled. Many of those implemented were linked to constitutional and legislative reforms, institutional reforms, as well as election organization and conduct. They include the simplification of voter eligibility requirements, improved accessibility to polling stations for persons with disabilities, simultaneous ballot handing to voters, sworn-in poll workers and party agents, food for poll workers, and an integrated voting system.

However, the components that have not been fully implemented call for a change in behavior. These include lax enforcement of anti-bribery laws, continued use of the black book, limited access to polling and tallying centers, particularly the national tallying center. Other issues touch on untrained party agents, media lacking full access to the integrated counting, tallying, and transmission system and insufficient time for verifying provisional results.

However, despite several of IREC’s recommendations being implemented, the electoral system still has issues as indicated by the number of electoral disputes filed in courts and the outcome of many of them which have included nullification of results, and the many calls by politicians and other stakeholders for the IEBC to be impartial.

Has there been meaningful change of behavior?

The legislative, regulatory, and institutional improvements such as administrative structures and procedures, seem to have had little impact on people’s behaviors.  There may be many possible reasons for this, including the fact that the suggested changes did not seal all the loopholes to cause a shift in behavior.

To achieve electoral system accountability, the most important consideration is whether legislative, institutional, and other reforms have the ability to modify people’s behavior. How effective are the safeguards in preventing someone from manipulating the system or evading the law?

In spite of the fact that the integrated registration, counting, tally, and electronic transmission technology is designed to promote the openness and verifiability of the election process, it can also be misused.

It may be easier to tamper with the results if commission officials with access to the system collaborate, but the impact of the tampering may be greater, than in a manual system, because they have access to all the data. System administrators may also be convinced to allow tampering with the system or skewed results. For example, the assassination of the chief information and technology officer just before the 2017 elections, exhibited intimidation on the election officials with a potential aim to compel them to collaborate in tampering with the results.

However, the manual system lacks the same degree of control as the electronic system does. As a result, the traceability given by the computerized technique may be worthless if access is denied or the servers are unavailable, as they were during the 2017 elections, and the data provided into the system is erroneous.

Due to network problems, Kenya’s electoral system has another obstacle to its accountability. Network problems countrywide may take years to fix, and in some situations, local election authorities can conspire to say that the network is down.

According to the IREC findings, one of the most significant challenges is the inability of candidates and party agents to effectively monitor strongholds of a rival candidate or political party. Party agents and poll workers are often recruited from within the community. Most party officials and agents are likely to come from the dominant political side because they are recruited locally in areas where specific candidates and parties have strongholds.

Candidates and parties with less influence in those areas are likely to find it difficult to recruit agents in areas that are viewed as strongholds for other candidates and parties because most people shy off for fear of being targeted.  This creates an environment where the results can be tampered with at the source – polling station, making it more difficult to verify them.

A possible solution to lack of effective candidate and party agents in strongholds of rivals is the reexamination of the political systems to find a solution for the problem. Perhaps a system in which the legislators elect the leader of the government would be preferable. Since all the leaders who eventually elect the president will be local, the problem of lack of an agent in a rival’s stronghold will be insignificant. Agents are more likely to be effective to candidates running at the constituency level than presidential candidates, who may not be able to identify reliable agents in the stronghold of their opponents.

In light of all the issues above, it is evident that greater effort is needed to ensure that Kenyan laws, regulations and institutions are effective in enforcing integrity in individuals, institutions, and the electoral processes but first; justice must be at the centrality of change.

Mr. Nyabira is  a governance expert and program manager for the Rule of Law Program for Anglophone Sub-Saharan Africa at Konrad Adenauer Stiftung

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