KENYANS go to the polls in August, and fierce contests are likely in the race for the presidency and other elections the same day to county governorships and other senior posts.
Electoral commission preparations are dangerously behind schedule amid political polarisation, growing distrust and lack of communication between parties.
Given the country’s troubled electoral history, it is essential that politicians and other key stakeholders discuss and agree on the measures necessary for credible polls and a way forward on the electoral timeline.
The elections matter well beyond Kenya’s borders. The country is the transport and commercial hub of East Africa, so a protracted crisis would result in significant disruptions further afield.
The 2007-2008 post-election violence, which left over 1,000 dead after a brutal police response to protests and ethnic killings, shut down international road links and slowed cargo shipments at Mombasa port to a trickle. Fuel prices rose sharply in neighbouring, landlocked Uganda and Rwanda, and humanitarian assistance further afield in the eastern Congo (DRC) was disrupted for weeks.
It took a mediation effort led by former UN Secretary-General Kofi Annan and supported by international partners to get the main players to agree to a truce and form a power-sharing government.
In the August 2017 poll, incumbent President Uhuru Kenyatta and Deputy President William Ruto face an energised opposition coalition, the National Super Alliance (NASA), that brings together all major opposition figures. It is led by Raila Odinga, whose campaign is all the more determined because this may be his last contest, should the coalition pick him as its flag bearer.
A LEVEL PLAYING FIELD?
Neither side has made the job of the Independent Elections and Boundaries Commission (IEBC) easy. In December, Kenyatta’s ruling Jubilee Party used its majority in parliament to push through controversial amendments to the electoral laws with little consultation. They provided for a manual backup to the electronic electoral system in case of equipment failure. This is arguably necessary since no electronic system is perfect, and no technology is foolproof against bad behaviour by politicians.
The government’s unilateral measure sowed mistrust in the electoral process. But opposition leaders have not helped matters by claiming the voting will be rigged by the ruling party and threatening to challenge any outcome to the election that does not favour them outside legal channels. After the opposition claimed that the 2013 elections were fixed, the courts ruled against it.
Following the 2007-2008 crisis, the Independent Review Commission (IREC), headed by retired South African judge Johann Kriegler, concluded that the 2007 polls had been marked by large-scale vote-tampering and issued far-reaching recommendations on the conduct of future elections, including that election commissioners take office at least two years before a general election.
The review commission concluded that the technical system for tallying, recording and transmitting results was defective and called for an overhaul. It noted that the vast powers vested in the presidency set the stage for a high-stakes contest that increased the likelihood of violence.
Only some of the proposals to improve the electoral process have been implemented. Most significantly, a progressive constitution was adopted in 2010.
A two-round presidential election system now requires the ultimate winner to garner more than 50% of the vote nationally and more than a quarter of those cast in more than half the 47 counties.
The process for selecting election commissioners was made more inclusive, and power was devolved to counties whose elected governors and local representatives enjoy a fair degree of autonomy over the deployment of resources disbursed from the centre.
The 2013 elections were reasonably peaceful, though the opposition challenged the credibility of the tallying process. Parliament has new responsibilities, including the power to vet most presidential appointees. Members also enjoy oversight of the cabinet through departmental committees.
POLITICIANS AND POLITICS HAVEN’T CHANGED
What has not changed is the behaviour of politicians and the zero-sum nature of political competition. Though the 2010 constitution sought to change the division of power between the presidency and parliament, the head of state remains immensely powerful, able to dole out patronage to supportive elites.
When the president’s party commands a majority in parliament, that institution can be reduced to a rubber-stamp assembly. By the same token, devolution in the new constitution has raised the stakes in sub-national contests, with heated competition expected for governorships.
Frequent leadership turnover at the IEBC means there will be a different set of inexperienced commissioners going into an election for the third vote in a row.
Some who ran the last two votes left under a cloud, accused either of fiddling results (in 2007) or major corruption and political bias (2013).
While the Kriegler report recommended that commissioners be in office at least two years before an election to enable them prepare adequately, the new team took office on January 20, a mere seven months before the vote.
Delays in parliament, dithering by the executive and confusion within a team picked to interview the new commissioners were blamed for the holdup.
This has left the IEBC, now headed by Wafula Chebukati, a lawyer little-known outside legal circles, facing tall odds to deliver a credible election. Overcoming formidable logistical, technical and legal obstacles within existing timelines and in a febrile, divisive environment will be a major challenge.
HI-TECH AMBITIONS, LEGAL CHALLENGES
Kenya’s electoral commission, like many in Africa, hopes to deploy a system with biometric voter identification and electronic results transmission so as to avoid the ballot-stuffing and dubious turnout figures that plagued past elections, particularly in 2007.
The IEBC estimates that the vendor that wins the contract will need 60 days to deliver the custom-made integrated electoral management system. It is well behind schedule in finding such a supplier.
Legislative timelines initially called for the system to be in place eight months before the polls, which would have required installation by December 8, 2016. IEBC executives asked for more time, citing stringent procurement requirements.
In November, Chief Executive Ezra Chiloba said it hoped to have the new system in place by the end of February. In fact, legal appeals by several of the companies that submitted tenders to supply the system meant that bid papers were only submitted in the first week of February. Now, another vendor’s legal challenge has blocked any decision on the tender.
On February 28, the IEBC admitted it was out of time to procure the new system on schedule. At a press briefing, its commissioners said, without elaboration, that they would explore using “an alternative voter verification” method. A day later, commission officials said they might procure the equipment directly from a vendor by “single sourcing” or issue a restricted tender that might be less open to legal challenge.
The equipment for transmitting results from polling places to the tallying centre is as important as the voter kits. Past elections were compromised by lack of transparency in tallying and transmitting.
The installation of a transparent, efficient electoral management system would go a long way to assuaging public concerns. Unfortunately, rushed procurement, with little lead-time for testing, may set the IEBC up for failure. That would also deepen suspicions in a situation already marked by significant tension between parties. Government steps to limit the role of external partners, such as the International Foundation for Electoral Systems, that can offer valuable technical assistance, have not helped.
On December 22, the High Court granted an order halting the IEBC’s award of a tender to financial services firm KPMG for verification of the voter register, upholding an opposition petition that accused the IEBC of making the appointment without sufficient consultation.
On February 13, the High Court nullified a tender to a Dubai-based firm for printing ballot papers, citing violations of procurement regulations and electoral laws.
A separate February 13 High Court decision that all IEBC executive decisions made before the January appointment of commissioners were null and void had particularly serious implications for preparations.
The commission has appealed, but further court challenges to its decisions, particularly on tendering, remain possible and could create additional election complications.
RACING AGAINST THE CLOCK
The greatest operational challenge the IEBC faces is not lack of internal capacity but that there is little time to put in place all the elements required to make the vote transparent and credible.
It needs to be clear-sighted and open about this. It should communicate to the public and international partners what extra help it needs to implement the various technical steps, including fast-tracked procurement of technology.
If it becomes clear, however, that the remaining time, particularly in light of possible legal challenges, is insufficient, it should ask for an extension. The opposition may be angling for a postponement for its own reasons. Nonetheless, from a technical perspective the IEBC could well run out of time to deliver credible polls.
If it becomes clear the commission needs more time, it may be possible to achieve consensus on a delay including by turning to the courts, because all parties have an interest in a smooth election.
There is a precedent for this. Although the constitution provides that elections should be on the second Tuesday of August every fifth year, the High Court gave the IEBC more time to prepare for the last election.
With little time left in which to build public confidence, the IEBC needs a communications strategy to update voters regularly. More importantly, it needs a mechanism to discuss progress with politicians and consult on key decisions it makes on preparations to assure them the vote will be credible, free and fair.
The commission should expand its Election Preparedness Task Force, currently composed of IEBC officials, representatives of the interior ministry, judiciary and director of public prosecutions. Giving civil society and the opposition greater access to all aspects of preparations would boost trust in the process.
HOW OUTSIDERS CAN HELP
International partners should extend technical and financial help to the IEBC to help it better tackle the challenges. This should, however, be done with nuance, flexibility and complete transparency, in light of unfounded claims by the ruling party that external parties are seeking to influence the electoral outcome. International observers should be deployed in time to monitor crucial stages of the electoral process, such as verification of the vote register and procurement of electoral materials.
The UN Development Programme (UNDP) should expand its technical aid initiatives, including deploying staff with experience handling fraught balloting around Africa to support the commission.
Kenya’s raucous politics shows the relative openness of its democracy. That politicians explicitly mobilise along ethnic lines, however, means elections are marked by high communal tension.
Since their words carry extraordinary resonance in a still ethnically fractured country, politicians should weigh them carefully during the campaign. The ruling party should not use state resources to gain an unfair advantage. Opposition leaders should play a constructive role in monitoring and supporting the electoral process and commit to using legal channels to air any grievances.
The main presidential contenders could help by publicly signing a code of conduct ahead of the official start of the campaign, including a pledge to seek legal recourse in the event of disputes and a call to supporters to refrain from violence. A similar step during the heated 2015 Nigerian presidential election campaign helped calm tensions before the vote.
Similar codes of conducts should be organised in counties, including pledges not to use violence and to respect results.
Establishing peace committees comprising different community leaders in especially contentious areas would help to bring groups together and limit the risk of communal violence once results are announced. The National Cohesion and Integration Commission should also closely monitor hate speech by politicians on the campaign trail and prosecute offenders.
Disputed polls can carry a major human and financial cost, and three of five elections since a multi-party system was re-introduced in 1992 have been marked by violence. Kenya needs to ensure that the 2017 vote goes smoothly. Faced with the extremely tight timelines, all stakeholders should make their contribution to this.
The author is Senior Analyst, Horn of Africa