A New Dawn for Democracy as Supreme Court Nullifies Presidential Elections in Kenya

In Kasarani, along Mwiki road, there were two queues. One snaked from Kasarani Academy, past Seasons Supermarket and towards Equity Bank. The other, observably thick and convoluted, emerged from the New DC Compound and spilled onto the pavement outside the high, galvanised iron-sheet fencing. An atmosphere of concealed exuberance – or uncertainty – kept conversations restrained and humble: an occasional grin in response to a remark from a long-lost acquaintance here, a muffled laugh there. Nothing too loud. Nothing too proud. Everything was measured. In such situations, conversations about the weather, about the pestering drizzle that morning, came to the rescue, at least against the tribal animosity bubbling beneath the thin veneer of respectability.

I did not know which of the five queues emanating from the New DC Compound led to my polling station, but the Independent Electoral Boundaries Commission (IEBC) had made things easy and efficient. I SMS’ed my National ID number to 70000. A minute later I received a message with my voter registration details. County – Nairobi City, Constituency – Kasarani, Polling Centre Code – 011, Polling Centre – New Kasarani DC’s Compound, Polling Station – 05. I joined the fifth queue.

The promise of efficiency

Most elections in African countries are a massive waste of resources, but with such efficiency, many were convinced that Kenyans had got their money’s worth. According to the Pre-Election Economic and Fiscal Report, from the government, the budgetary allocation for the 2017 Kenyan presidential election was Ksh49,9 billion (USD499 million) – for direct expenses (USD333 million) and indirect expenses (USD166 million).

A woman votes in the previous elections in Kenya. Photo: Demosh/Flickr

These allocations translated toUSD25,40 for each of the 19,6 million registered voters, making Kenya’s election the second most expensive electoral exercise in the world, second only to Papua New Guinea’s USD63 per voter, and way above that of Kenya’s East African neighbours: Rwanda (USD1,05), Uganda (USD4) and Tanzania (USD5,16). This was going to be the most efficient, technologically advanced and secure exercise in the history of the country.

Read: Kenya’s landmark electoral ruling: Does Africa need international observers?

It look a mere four hours to reach the polling station, compared to the more than seven hours I had queued in 2013. It could have taken shorter, but out of dignity and necessity, we allowed mothers, those pregnant or with infants, to skip the long queues. Many young men and women, or the old as yet unencumbered by the ailing of the body, wished they too had the privilege to skip the long queues.

Biometrics at work

At the polling station, the process was, again, straightforward. Produce an original ID card. To ensure that you were a registered voter, the electoral body had deployed the Kenya Integrated Election Management System (KIEMS). Every polling station had a KIEMS kit with a biometrics scanner. A matching fingerprint with the biometrics database meant that you were an eligible voter at that polling station. One could not proceed beyond this point if fingerprint identification failed. Identified voters were then given six ballot papers to vote for the President, Governor, Member of Parliament, Senator, Women Representative and Member of County Assembly positions. At the polling booth, a voter marked their preferences, and then walked to the ballot boxes. There was an IEBC officer, mostly men, to help voters cast their colour-coded ballots in the right box. To provide a second level of security against double voting (the KIEMS kit was the first), the voter’s fingers were marked with indelible ink. With those simple and clear steps, a voter had done their duty to democracy: electing a government of the people, by the people, for the people.

Presidential contender Mr. Uhuru Kenyatta – incumbent in this picture taken on August 4, 2017.
Photo/Billy Mutai

I walked back home to await the announcement of results. In Kenya, a typical silence and uncertainty characterises this wait. The voting process is always peaceful and smooth, but rarely so the vote counting and transmission of results. The IEBC had assured the public that the systems would work, but it did not take long before many realised that just like in 2013, when transmission systems deliberately and spectacularly failed, the 8 August 2017 election would bring forth an even more sinister manipulation.

In-between growing national tension, frantic press conferences by the opposition, insincere explanations by the IEBC, social media memes and tribal combat, a complicit silence from mainstream media, a heavy police presence and helicopters vulture-circling above opposition strongholds, the peacepreneurs sang louder. It was a replay of what Kenya went through in 2013. Preaching peace and singing “accept and move on” had become Kenya’s unique way of preventing election stealing from degenerating into violence. Peace over justice.

The voting and transmission

The plan was simple: Count the votes at each polling station in the presence of the public, party agents and observers. Enter the votes in Form 34A, which the party agents would sign to confirm that it represented the votes cast. Take the KIEMS kit and enter the votes counted valid, rejected, spoilt or stray. Let the agents and observers confirm correct entry. Scan Form 34A using the KIEMS kit and send the polling station vote counts, simultaneously, to the Constituency and National Tallying Centres. Physically submit Form 34A to the Constituency Tallying Centre. At the Constituency Tallying Centre, the Returning Officers would verify and tally the vote counts from Form 34A from constituent polling stations, enter the tally into Form 34B and declare the results, including presidential results, and physically submit both Form 34As and Form 34Bs to the National level. At the National Tallying Centre, the Presidential Returning Officer would verify the counts in 34A and 34B, and use the latter to enter counts into Form 34C. Based on the tally, in addition to other constitutional provisions, the Presidential Returning Officer would announce the winner of the presidential elections. The rationale behind the electronic transmission of results at the polling stations was to ensure that the contents of electronic scans of Form 34As matched the physical forms.

Read: Kenyans return to polls in 60 days as Supreme Court nullifies Kenyatta’s re-election

The IEBC set up a public portal, as required by the legal provisions on electronic transmission, but when the results started streaming in, many started asking questions. What was being displayed was at variance with what had been counted at many polling stations countrywide. Further, these results were not accompanied by scanned copies of the forms. Others started noticing statistical anomalies. For transmissions originating from random 40 000 polling stations around the country, the National Super Alliance (NASA) pointed out a constant 11% difference between Uhuru Kenyatta and Raila Odinga’s vote tallies. At some point, figures of other presidential candidates reduced – a scenario people joked about in social media as ‘unvoting’.

Presidential frontrunner Mr. Raila Odinga who is also the opposition leader in this picture taken on May 15, 2017. pollsters have ranked him slightly trailing of Mr Uhuru Kenyatta who is Kenya’s President.Photo/Billy Mutai

The NASA team released database logs showing that the transmission system had been hacked, that certain people had gained access to the system using the credentials of Chris Musando – the IEBC IT Manager who had been tortured and murdered just a few days before the election, in what many believe was related to attempts to manipulate the transmission of results. Despite calls from the opposition and a section of civil society for accountability and the verification of results streaming from the portal, the IEBC went ahead and announced unverified presidential results. As expected, the state cracked down on protestors, mainly from opposition strongholds, with reports showing scores of people being beaten and shot, including the killing of six-month-old baby Samantha Pendo, who had been clobbered by the police breaking into people’s homes in Kisumu, ostensibly to maintain law and order.

The Supreme Court

Against earlier indications that it would not go to court, the NASA coalition filed a Presidential Petition hours before the mandated deadline. NASA’s case was three-fold: that there were illegalities and irregularities in the transmission, verification and declaration of results that violated the constitution, the Elections Act, as well as IEBC’s own internal regulations; that these violations affected the presidential election result; and that the effect was to the extent that they should be declared null and void. The Supreme Court had only 14 days after the announcement of the presidential election results to reach a verdict.

Among other solid pieces of evidence and arguments, NASA lawyers presented an algorithm which they believed was used to manipulate results to favour Uhuru Kenyatta, by converting the incoming results into a desired output. The algorithm: y=1.2045x + 1.83546 (where y is Uhuru and x is Raila’s votes) allegedly helped maintain the alleged 11% difference in the IEBC portal, prepared the public psychologically for the incumbent’s win and yielded the 54% (Uhuru) vs 45%(Raila), taking into account the percentage won by other candidates and statistical error.

Supreme Court ruling annuls Kenya’s presidential election result. Cartoon: Damien Glez

While NASA’ allegations of hacking or the theatrics of algebra were not conclusively proven, the court’s IT experts, on accessing the IEBC server, confirmed NASA’s allegation of the manipulations of vote tallies. The evidence of illegalities and irregularities explained the huge variance in presented Forms 34A, B and Cs, rendering the results null and void. The court directed that another presidential election be held in 60 days.

The verdict surprised both Raila Odinga and Uhuru Kenyatta’s teams, not to mention the average Kenyan, who has become accustomed to the long fingers of political manipulation in everything, and it made waves across the world. Fidelity to the constitution was important. Rule of law was important. The integrity of the electoral system was important. The process was important just like the results. Kenya won!

Election observers

The nullification of the presidential election has put the election observer industry in a spot. The 8 August election had been sanitised by international observers, who had declared it ‘free and fair’. John Kerry, rubberstamping the assessment of the Carter Center, noted that “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.” The Commonwealth observer mission, led by former Ghanaian president John Muthama, reported that the voting and counting was “credible, transparent and inclusive”. These assessments were released despite the opposition and civil society citing numerous cases of electoral malpractice.

Odinga called for a re-examination of the role of foreign monitors in African elections.

Some statements by John Kerry also seemed to devalue the opinions of domestic political players, ostensibly to please the ruling party and the business community. At a press conference in Nairobi, Kerry said that “I know what it’s like to lose an election, but you gotta get over it and move on.” Raila Odinga issued a statement of displeasure, castigating Kerry for sanitising fraud, and called for a re-examination of the role of foreign monitors in African elections. Kenya is not new to the “accept and move on” choir and preachers of peace. Following the disputed 2007 election, which led to more than 1 300 deaths, this has become the modus operandi for downplaying the magnitude of electoral malpractices and silencing aggrieved parties.

Calls for peace have become the modus operandi for downplaying the magnitude of electoral malpractice and silencing aggrieved parties.

The Kenyan experience with international observers is not unique. In most African countries, labeled as ‘political unstable’ and ‘prone to violence’, observers fly in a few days before elections, set up teams in scattered polling stations, and watch the voting process from a safe distance, before being four-wheel-driven to five-star hotels in capital cities, to sit down and prepare a report on the credibility of elections. Once the report is ready, scripted in choice, predictable language, the observers then call a press conference and, bathed in camera lights; they proceed to validate a fraudulent process as “free, fair and credible” without actually verifying the entire system and results.

Former US Secretary of State John Kerry, who led the Carter Center’s observer mission in Kenya, noted that, “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.” Photo: Twitter/CarterCenter

With more evidence of manipulation of election results becoming public, the Carter Center, in response to criticism, noted that “the electronic transmission of results proved unreliable.” The Supreme Court ruling, which took into account both constitutional and legal provisions for electronic transmission of the results, was at divergence with John Kerry’s emphasis that “In the end, let me emphasise: it is the paper ballots and the accounting process established by the IEBC that tell the story of this election, not the electronic transmission of those numbers”. This statement trivialised provisions for electronic transmission of results in Kenya’s electoral law.

Worries over entrenched electoral fraud fuelled calls for secession among the aggrieved one-half of the nation

With political processes becoming more complex and uncertain; the role of long-term observers and short-term observers will continue to face sharp scrutiny. With geopolitical interests involved, the independence of election observers has become suspect, and the line between suppressing “sore loser” complaints in free and fair elections and legitimising domestic protests in rigged elections has become blurry. Odinga was quick to point out that the Supreme Court ruling put on trial international observers “who moved fast to sanitise fraud”.

Those who give can take away…

Couched in the language of progress, development partners sugarcoat or devalue political conflicts while greasing the policy processes with an economic purse string that poor African countries cannot help but wholeheartedly grab. Kenya was given millions of dollars to set up the transmission system. The culture of dependency, particularly in running core processes, gives the owner of the purse the license to devalue the local voices of local actors. Perhaps one of the greatest displays of disregard for such voices is a recent condescending and neocolonial editorial, “The Real Suspense in Kenya”, published in the New York Times. It added to a series of silencing mouthpieces that appeared in select and powerful Western media outlets.

Electoral authoritarianism

The Supreme Court ruling is also a spear in the back of electoral authoritarianism that had started to creep back into Kenya. Andreas Schedler defines electoral authoritarianism as ‘states under the control of a dictator who has sufficiently established the institutional facades of democracy, including regular elections that present an illusion of multiparty democracy while effectively stripping such elections of efficacy and value’. When electoral contests are subject to state manipulation so severe, widespread and systematic, they do not qualify as democratic. This manipulation ensures that incumbents can hold elections that predictably facilitate their victory. Such incumbents may not need to assassinate opposition leaders or civil society figures; all they need to do is control the courts and mainstream media, and oppress free speech and freedom of association.

A recent analysis by Aziz Rana, on Pambazuka, noted: “Kenya has been modeling a brand of electoral authoritarianism for the region and beyond over the last decade – one in which citizens worry that they cannot expect a meaningful transfer of national power through electoral means.” There is a realisation that elections “can be part of the toolkit for extending rule.” With greater and greater sophistication governments can use the security apparatus and resources to shape the terms of any vote and, if need be, manipulate outcomes, especially around the edges.

With greater and greater sophistication governments can use the security apparatus and resources to shape the terms of any vote.

As Rachid Tlemcani notes, the net result of this are regular elections that fail to live up to the democratic standards of freedom and fairness. After the announcement of the presidential election results, worries over entrenched electoral fraud fuelled calls for secession among the aggrieved one-half of the nation.

Reaffirming African dignity

The biggest win, however, is that it reaffirmed the dignity of the African person and reclaimed our faith in functional domestic systems for fairness and justice. It has birthed a new conscience movement, a belief that justice should be about what is right, not just what is politically expedient. It has raised the pride and self-esteem of Kenyans who continue to bear the brunt of systematic corruption and violations of the rule of law. Beyond helping to start the wheel of elections that do not defile the will of the people in Kenya, its positive vibrations continue to be felt, not only in Africa but also in the West, particularly the United States, with its ongoing experiments in authoritarianism and the consequent aspersions of electoral systems hacking and fraud.