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Kenya’s Past as Prologue

 | 
Christian Thibon
, 
Marie-Aude Fouéré
, 
Mildred Ndeda
, 
et al.

Role of Election Observers: Diplomatic Bias and the Findings of The Kenyan 2013 Election

Mwongela Kamencu

Texte intégral

Introduction

1The electoral environment for Kenya’s 2013 elections was greatly influenced by the tumultuous 2007 elections and its aftermath that saw hundreds killed, thousands displaced from their homes and property destroyed. Dispute over fraudulent 2007 election results, given credence by observer reports and statements, was thought to be the trigger of such violence. Proof of the election fraud became evident with release of various statements such as the European Union Elections Observation Mission Preliminary statement dated 1 January 2008 (Lafargue, 2008: 23). The political impasse between Mwai Kibaki of the Party of National Unity (PNU) and Raila Odinga of the Orange Democratic Movement (ODM) was later on resolved through a combination of international and local initiatives under the auspices of the African Union Panel of Eminent African Personalities led by the former UN Secretary General, Koffi Annan. These initiatives were able to finesse a power sharing deal by creating a grand-coalition government after the signing of the National Peace Accord which committed Kenya to an ambitious reform program. This deal, brokered with the help of Western donors and the African Union, set aside rather than settling the question of who had rightfully won the presidential elections (Brown and Raddatz, 2014: 7).

  • 1 African Union Commission, Report of African Union Election observation Mission to the March 4th 201 (...)

2One of the main terms of reference of the Grand Coalition Government was to work toward political, social and institutions reforms that would contribute to national reconciliation and provide the appropriate framework for future elections. In line with this, Kenya made efforts to establish the necessary political and legal context within which the 4 March 2013 elections were expected to take place. The election was therefore guided by the 2010 Constitution of Kenya, the Electoral Act 2011, the Electoral Code of Conduct, and the Political Parties Act 2011, among others.1 Guided by this new institutional framework, the average Kenyan voter was able to vote for candidates in six elective positions, a departure from the usual three positions, in the 2013 elections. This institutional framework compounded with the collective memory of the tumultuous 2007 election set the scene for Kenya’s 2013 electoral environment (Shihanya and Okello, 2010: 690-698).

3Out of the eight Presidential candidates in the general election, party leaders and presidential aspirants for the CORD and Jubilee coalitions emerged as the frontrunners. The CORD coalition was led by Raila Odinga whose running mate was Kalonzo Musyoka while the Jubilee Coalition was led by Uhuru Kenyatta whose running mate, on the other hand, was William Ruto. Campaigns by both camps were dominated by various themes which ultimately influenced the political environment.

4Uhuru Kenyatta and William Ruto were facing charges for crimes against humanity at the International Criminal Court (ICC) understood to have been committed in the course of the post-electoral violence (PEV) of 2007 and 2008. These candidates, it was argued, used their charges as a rallying cry for their communities’ electoral support by reframing their charges as a conspiracy by the west to impose its preferred leaders on Kenyans (Perry, 2013). This stance was amplified by assertions made by diplomats from Western donor countries that seemed to coerce Kenyan voters not to vote for Uhuru Kenyatta and William Ruto. The US Assistant Secretary of State Johnnie Carson had intimated in a media telephone briefing that although the United States was not backing a specific candidate, “choices have consequences”. Similarly dire pronouncements were made by numerous other donors after Johnnie Carson’s statement (Brown and Raddatz, 2014: 10-11).

  • 2 Walter Menya, “Raila Ignores Police Warning,” The Star, February 6, 2013, http://www.the-star.co.ke (...)

5Raila Odinga, on the other hand, made land and historical injustices a dominant theme in his campaigns promising to solve the injustices once elected. He further made political capital out of the land issue by alluding to land grabbing charges facing William Ruto and the ownership of extensive tracts of land by Kenyatta’s family. Kenya’s Inspector General of police and the Chairman of The National Cohesion and Integration Commission sought to gag the debate on land by politicians on the strength of its potential to trigger violence because of its emotive quality.2

  • 3 National Cohesion and Integration Commission, “A Call to Peaceful elections,” January 27, 2013.

6The need for peace in view of the collective memory of the 2007-2008 election related violence and rising political temperatures underlined the need for violence mitigation by election stakeholders. A concerted effort was therefore made to maintain peace and prevent violence during the election period. ELOG, the Elections observation group, a consortium of civil society organizations, was among the national actors involved in violence prevention through reporting of any incidences or potential threats to peace during the election period. Their mandate, however, was not limited to violence mitigation but the observation of the whole electoral process. The National Cohesion and Integration Commission (NCIC), one of the commissions that drew its existence from the National Accord, was an active actor in the peace campaigns. In line with its mandate to promote national integration, the commission recruited peace and cohesion monitors who were to monitor hate speech and promote harmony during the election period. The NCIC also called upon the Kenyan public to maintain peace during the elections, the IEBC to “strictly enforce the law to sustain the confidence of Kenyans” and politicians to desist from making inflammatory statements that could incite citizens to violence during campaigns.3

  • 4 Interview with Daudi Were, Uchaguzi Project Leader, June 20, 2013, Valley Arcade, Nairobi.

7Goodwill ambassadors, appointed in July 2012, complimented the Commission’s work in promoting peace during the elections. These Ambassadors were known to have considerable influence in Kenya’s public sphere. Other platforms such as Uchaguzi (Elections) Kenya 2013 also monitored the elections and were to receive reports of any incidences from the public through text messages, emails and online messages. The information, depending on its nature, would be relayed to agencies responsible for them to act on it. The Kenya Red Cross would be notified of Emergencies, for instance, while information Electoral issues would be relayed to the Independent Electoral Boundaries Commission. The Uchaguzi platform, however, had a limited media outreach as they did not have the resources to effectively compete for media space with politicians.4 Numerous international partners, ranging from the United Nations to the Electoral Institute for Sustainable Democracy in Africa, supported Kenya’s peace efforts. For instance, from the United States alone, the State Department’s Conflict and Stabilization Operations bureau and the U.S. Institute of Peace deployed teams to high-risk areas to assess conflict mitigation efforts. The U.S. Agency for International Development funded a large effort that mobilized youth against violence (Lord and Wilson, 2013).

  • 5 Michela Wrong, “To Be Prudent is to be Partial”, IHT Global Opinion, March 14, 2013, http://latitud (...)

8The media also participated in peace campaigns by giving coverage to peace messages. Michela Wrong’s article, “To be Prudent is to be Partial” implied that the media preached peace to a fault and compromised its coverage during the election. This was especially the case as results began streaming in. Stories that may have whipped up ethnic tensions – such as anomalies and irregularities – were overlooked. She argues: “But self-censorship comes at a price: political impartiality. The decision not to inflame ethnic passions meant that media coverage shifted in favour of whoever took an early lead, in this case Uhuru Kenyatta”.5 Domestic and International Observer groups may not have compromised their impartiality in a similar fashion but their reporting of the election, influenced by the electoral environment, could have been compromised to filter out information. This information potentially would have undermined the Kenyan public’s confidence in the Presidential Election results released by the IEBC that were later challenged by the CORD presidential candidate Raila Odinga, the African Centre for Open Governance and other petitioners.

9The article will focus on the findings and the reporting of the Observer missions to build up the argument that a diplomatic bias influenced the observer groups’ reporting of the election. Discrepancies in the reports and statements of observer groups will be analysed to give credence to this argument. The paper will also use some insights from other secondary sources such as journal articles that will build its main argument. Newspapers and statements will mainly be used to cite specific events while interviews from a number of election observers and stakeholders will give first-hand insights on election observation.

10Judith Kelly’s article “D-minus Elections: The Politics and Norms of International Election Observations” argues that election observers at times endorse elections to protect their member states’ or donors’ interests or to “accommodate other compelling but tangential or organizational norm” (Kelly, 2009: 766). The article’s argument may not be entirely pertinent to this study as it primarily focuses on international Election Observation missions; the study will also include national observation missions. It does however bring out the biases observer groups may have that may compel them to endorse flawed elections.

11The question of a “technological bias” as opposed to “diplomatic bias” in election observation has been brought out by Dirk Kohnert’s article “Election Observation in Nigeria and Madagascar: Diplomatic vs. Technocratic”. Based on the observation of transitional elections in Nigeria and Madagascar, his article argues that professionalism of observers as understood by experts does not necessarily improve the outcome of an election observation. He argues that it in fact could lead to a technocratic bias by reporting based on the observer group’s ideals while disregarding factors such as indigenous socio-cultural settings and level of social and cultural development of the host country (Kohnert, 2004: 87-88). The article argues that the degree of damage caused by the technocratic bias could be as high as that caused by diplomatic bias. On diplomatic bias, the article explains that “there exists a considerable margin of error and of wrong judgments concerning electoral processes in politically sensitive situations” (Ibid: 84). The article cites conflict prevention and interests of the member states as some of the reasons for the existence of diplomatic bias responsible for compromising observer aims. Kohnert gives two aims of election observation – backing good governance by recognizing legitimate elections and governments and assisting in the process of democratization and the development of a human rights culture. The insights offered on the article set a framework for which the article will be looked through.

KHRC: Election monitoring by human rights networks

  • 6 Interview with Eva Kaloki, Programme Associate, Kenyan Human Rights Commission, August 1, 2013, Ken (...)
  • 7 Ibid.

12The Kenyan Human Rights Commission, a Kenyan Non-Governmental organization, set up an observer team comprising short-term observers and long-term observers. The team was drawn from 25 members of staff from the organisation as well as 57 monitors from Human Rights Networks strategically placed in the counties that the organisation had previously worked with.6 It covered 15 of Kenya’s 47 counties considered as potential hotspots for violence as a result of the counties’ cosmopolitan demographics as well as the individual histories of these areas. The commission released statements at times they considered critical such as after the party nominations, before and after the Election Day. On the Election Day process, some of the commission’s monitors witnessed irregularities such as issuance of more than two ballots per person, double voting and bribery. These irregularities were raised at a press conference but were not released to the public due to certain considerations: “We gave a brief statement but we did not release it to the media or the public as we did not want to be seen to interfere with the Presidential Petition being heard at the Supreme Court… we had some disagreements with the media because they tended to believe that we were partial and yet all we were saying was that there were irregularities that may or may have not favoured either of the Presidential candidates”.7

  • 8 Article 10, Constitution of Kenya, 2010.

13One of the aims of Election Observation by Dick Kohnert is backing good governance by “recognizing legitimate elections and governments”. By failing to share information with the public as a result of their perceived partiality, the KHRC as a domestic observer fell short of the aim of good governance. Incidentally, one of the national values that anchor the principle of governance in the Constitution of Kenya is public participation.8 The Commission therefore, by failing to release its statement to the public, compromised its reporting as a result of influence from the electoral environment – particularly because of the ongoing Presidential petition in the Supreme Court and the impression sections of the public had of the commission.

AGLI and FCPT: Grassroots election observers

  • 9 African Great Lakes Initiative, Report on Observation of March 2013 Kenyan National Elections, Apri (...)
  • 10 Ibid.

14The African Great Lakes Initiative and the Friends Church Peace Teams were some of the grassroots organizations accredited to observe Kenya’s 2013 elections. These organizations worked jointly and used a grassroots approach. Save for 3 foreign volunteers, all volunteers were Kenyan nationals living in areas the organisations earmarked for observation. The organisations trained election observers in western areas of Kenya and assigned 112 of them to polling stations in their local communities. Out of the 112 observers, 104 completed and submitted observation forms which were used to come up with a report. AGLI’s observers observed the elections in 83 polling stations. Out of the 83, no problems were reported in 19 of them, 23% of the polling stations observed. IEBC irregularities, however, were reported in 34 of the polling stations which accounts for 41% of the polling stations observed. Inappropriate agent behavior was observed in 11 polling stations while overt bribery was witnessed in 6 polling stations: these accounted for 13% and 7% of the polling stations observed respectively.9 In 4 polling stations the observers witnessed the issuance of multiple ballots for the Presidential race with one of these stations having 23% more presidential votes than in the other 5 races. According to the AGLI and FCPT report, their observers believed that all the disputed votes were included in the national totals. Bearing in mind that there were “pervasive problems with IEBC manual and automated procedures” the organisations’ report concluded that there was a likelihood that fraud took place on a wide scale during the elections and “most likely did”.10 The report recommended a thorough audit of the election process. AGLI did not report on the tallying at the national tallying Centre as its observers were posted in polling stations in western areas of Kenya.

  • 11 Star Reporter, “Election Not Transparent – EU Observers”. The Star, March 20, 2013: 3.

15Besides the irregularities of the KHRC observation team, the content of an internal European Union Election Observation Mission (EUEOM) report corroborates some of electoral irregularities of the AGLI/FCPT’s report. In the internal report, EU Observers noted that various complaints had been made to the IEBC including: returning officers leaving the tallying centre with materials including computers (Nairobi, Nakuru); manipulation of results (Kakamega, Nyeri, Nakuru); ballot stuffing by a presiding officer (Kakamega), issuing more than one ballot paper per voter (Eldoret); bribing of voters (Nakuru, Kisumu); not sealing the ballot boxes (Embu); and damaging a TNA billboard (Nyeri).11 Perhaps the grassroots approach used by the AGLI/FCPT kept its diplomatic bias to a bare minimum. The fact that the organization had a low national profile and may have not been at the centre of peace campaigns may have also been responsible for its reporting which mentioned more anomalies than any of the observer groups mentioned in this study.

ELOG, civil society observers: Election watchman or watchman of peace?

  • 12 Elections Observation Group, “The Official results are consistent with Elections Observation Group’ (...)
  • 13 Ibid.

16The Election Observation Group, ELOG, a consortium of civil society and faith based organizations, had more observers on the ground than any other accredited observer group in the 2013 election. The group had 7000 observers in all of Kenya’s 290 constituencies and in addition, deployed 580 constituency supervisors.12 Out of those observers deployed in the constituencies, 976 were deployed as Parallel Vote Tabulation (PVT) observers in sampled polling stations “to enable ELOG to confidently comment on electoral processes and also provide an independent verification of results announced by the Independent Electoral Boundaries Commission (IEBC)”.13 The rest of the observers were posted as general observers who were to provide an observer presence on the ground whose findings would complement the data generated by the Parallel Vote Tabulation technology.

  • 14 Elections Observation Group, “Opening of Polls Statement,” March 4, 2013.
  • 15 Ibid.

17ELOG released interim statements on the polling day that gave statistical breakdowns on how the voting process was conducted. It had an opening polls statement that put the percentage of polling stations that opened on time at 59.7%, that of polling stations not missing strategic equipment at 99.4% and polling stations lacking electronic poll books or had malfunctioning poll books at 8%.14 The observer group added in its opening statement that some of their observers were denied entry to polling stations as they lacked stamped IEBC letters while in some cases, presiding officers asked for oaths of secrecy. The second interim statement also focused on statistical projections. It put the percentage of Kenyan voters who had voted by 4pm at 68.5% and the percentage of polling streams in which “many voters were assisted” at 54%. ELOG’s most critical message in the statement was the percentage it gave for “polling streams where ballot secrecy was violated not including assisted voting” which it put at 17.6%. An appeal to maintain peace was also included in the statement.15

  • 16 Elections Observation Group, “Press statement on Ongoing Tallying of Presidential Results,” March 7 (...)
  • 17 Ibid.

18ELOG issued another statement on 7 March 2013 concerning the tallying of the election results where they argued that the opening and closing processes of the election went well besides “some challenges – late opening of polling streams and malfunctioning of the electric poll books”.16 The statement did not mention the violation of the secrecy of ballot as one of the challenges of the election process despite its statistical prominence in ELOG’s previous statement. In the first statement, the percentage of polling stations with malfunctioning poll books was put at 8% while the second statement “put the polling streams where ballot secrecy was violated not including assisted voting” was put at 17.6%. The challenges mentioned in the third statement, however, gave prominence to malfunctioning electronic pollbooks as a challenge but used the phrase “among others” to include cases of violation of ballot secrecy as one of its challenges despite its statistical significance. This oversight of violation of ballot secrecy as a challenge whose statistical significance was bigger than that of malfunctioning poll books points to a diplomatic bias that saw ELOG downplay an electoral challenge while putting a premium on a challenge that was arguably beyond the polling clerks’ control – malfunctioning of electronic poll books. In addition, the statement added that the abandonment of the electronic tallying process and the usage of manual tallies did not invalidate the credibility of the process.17 The statement appealed to Kenyans to maintain calm and urged the IEBC to open the manual tallying process to thorough scrutiny in order to retain the transparency which ought to have been enhanced by the electronic tallying system. This may have been a thinly veiled reference to the exclusion of Party agents and Observers from observing the tallying process.

  • 18 Interview with Mercy Njoroge, National Coordinator, July 31, 2013, ELOG, Nairobi.
  • 19 Elections Observation Group, Press Statement, “The Official results are Consistent with Election Ob (...)

19ELOG’s fourth statement issued on 9 March 2013 verified that IEBC’s results fell within their projected range for all the eight presidential candidates based on the Parallel Vote Tabulation. ELOG’s assertion in the statement that the PVT projections could confidently verify the accuracy of votes for each Presidential candidate disregarded the margin of error given for its projections. The figures released by IEBC only fell within ELOG’s projected range but the confidence in the results vouched by ELOG is invalidated by the projected margin of error. One of the ELOG observers indicated: “Our PVT can tell us that Uhuru Kenyatta was ahead of Raila Odinga… What our PVT cannot tell you is that Uhuru won the first round… Our data cannot tell us that Uhuru passed the 50% +1 threshold”.18 The statement further urged the IEBC to “immediately make public any information relevant and material to the results as announced”. The Observer group emphasized the need for IEBC to “make public the individual results (form 34) from all polling streams”.19

ELOG and other reports: The question of rejected votes

  • 20 Elections Observation Group, “Press statement on Ongoing Tallying of Presidential Results,” March 7 (...)
  • 21 Election Observation Group, The Historic Vote: Report of The Elections Observation Group On the 201 (...)

20Discrepancies between ELOG’s statements and AGLI/FCPT’s report are glaring given the higher number of observers ELOG dispatched to the 290 constituencies – higher by more than five thousand. ELOG’s three statements and indeed the fourth, had no mention of the anomalies raised in the AGLI’s report which included: inappropriate agent behavior, overt bribery in polling stations, issuance of multiple ballots for the presidential race, polling stations having a significantly higher (23% in one) number of presidential votes than in the other five races. ELOG’s statements did not also mention several anomalies which the Internal EUEOM report raised such as mathematical inconsistencies thought to have a significant impact and the unsigned results “at lower levels”. In some cases, ELOG’s statement glossed over the anomalies the Internal EUEOM report raised. The statements for instance did not mention the barring of Party agents and observers from the observing the Tallying process by IEBC officials at the National Tallying Centre at the Bomas of Kenya but instead appealed to the IEBC to “open the manual tallying process to thorough scrutiny in order to retain the transparency”.20 However in their final report, ELOG mentioned that Presidential party agents were excluded from the verification of presidential election forms transmitted to the National Tallying Centre by the constituency returning officers.21 The number of ELOG’s observers – approximately 7,580 – exceeded the EUEOM observers who were approximately 65 in number.

  • 22 The Carter center, “Carter Center Congratulates Kenyan voters on Peaceful Election,” March 6, 2013.
  • 23 African Union Commission, Report of African Union Election Observation Mission to the March 4, 2013 (...)
  • 24 Interview with Mercy Njoroge, National Coordinator, July 31, 2013, ELOG, Nairobi.
  • 25 Ibid.

21ELOG’s projection of rejected votes, whose range IEBC’s figures fell in – 0.9% for ELOG with a margin of error of 0.1% and 0.88% for the IEBC – also contrasted the findings of the Carter Centre and the African Union Election Observation Mission (AUEOM). In a congratulatory message to Kenyans for a peaceful election, the Carter Center “observed a high number of rejected votes and appealed to the IEBC and other stakeholders to address this in the short term”. The Mission deployed 14 long-term observers and 38 short-term observers who collectively visited 265 polling stations in 34 counties.22 The AUEOM, on the other hand, in its report of the Kenyan 2013 Elections noted with concern “the high number of rejected ballots at the polling stations”.23 Observations of a high number of rejected votes made by observer groups such as the AUEOM and the Carter Centre Observation Mission were not, however, anchored on a national sample as ELOG’s PVT projections.24 The initial high figures for rejected votes given by the IEBC’s electronically transmitted results did not tally with ELOG’s figures. The abandonment of the electronic transmission of results, however, saw a significant drop in the number of rejected ballots which fell within ELOG’s range.25

  • 26 Ibid.
  • 27 Interview with Stephen Mondon, Field Office Director, Carter Center Election Observation Mission, A (...)
  • 28 Interview with Mercy Njoroge, National Coordinator, July 31, 2013, ELOG, Nairobi.

22IEBC’s statistics and ELOG’s projection on rejected ballots warrants further interrogation, however. Results of Kenya’s 2010 Constitutional referendum – in which voters were to cast their ballots for Yes or No options – saw the rejected ballots surpass a 3% mark.26 With the world average of rejected votes being 3%,27 IEBC’s percentage and ELOG’s projection on rejected votes in the March 2013 Elections not only fell below this average, but also below the percentage of rejected votes in the 2010 referendum, in an election that saw Kenyan voters vote for candidates in six elective positions. ELOG’s ranges for the rejected votes in the Kenya 2013 elections, in which IEBC’s 0.88% lies, were 0.8% for the lower limit and 0.9% for the upper limit. ELOG, which had covered the 2010 referendum did not analyse the percentage of spoilt votes that the IEBC had reported. An observer with ELOG noted: “We did not go far as to analyse the rejected votes… Looking at the rejected ballots vis-à-vis the poorly conducted voter education and yet that high number of rejected votes… we did not make an analysis on the rejected votes”.28

23ELOG, an observer group whose mantra is “credible, peaceful, free and fair elections”, could have compromised its findings for the sake of peace – not reporting electoral anomalies that may whip up tension among Kenyans. The entity itself was comprised of peace lobby groups such as Ecumenical Centre for Justice and Peace as well as the Catholic Justice and Peace Commission that may have had a significant effect on the findings of the observer group. As argued by Dirk Kohnert, Diplomatic bias could stem from conflict prevention hence deviating “from the declared aims of election observation” (Kohnert, 2004: 84).

AU, EAC, IGAD and COMESA: Regional observers

24Kenya’s 2013 elections were also observed by regional observers which included a coalition of regional bodies – East African Community (EAC), Intergovernmental Authority for Development (IGAD) and the Common Market for Eastern and Southern Africa (COMESA). The African Union also had an Observation Mission in the country.

  • 29 The Joint COMESA-EAC-IGAD Election Observer Mission, Preliminary Statement, March 5, 2013, p. 2.
  • 30 Ibid., p. 6.

25The EAC-IGAD-COMESA observation mission adopted a “short-term methodology” and deployed a pre-election assessment mission and later twenty-one teams in 40 out of Kenya’s 47 counties.29 The coalition released a preliminary statement which stated it would prepare a comprehensive report upon the conclusion of the election process. Its preliminary statement – released a day after the elections – argued that the election had met “regional, continental and international standards for credible and transparent elections”.30 The statement was an endorsement of the election process during and perhaps before the Election Day and contrasted with the findings of AGLI/FCPT’s report which mentioned irregularities and anomalies that took place during and after the voting process.

  • 31 Ibid., pp.3-4.
  • 32 Alphonse Shihundu, “IEBC Blames Database bug for rejected votes error, “Daily Nation, March 7, 2013 (...)

26The African Union Election Observation (AUEOM) mission had a total 74 observers in 26 of Kenya’s 47 counties on the Election Day who visited 482 polling stations covering 130 constituencies.31 The report did not give a blanket description of Kenya’s 2013 election but zeroed in on several themes such as Security, Closing and counting procedures and party agents and observers. Under the theme ‘Closing and counting procedures’, the AUEOM reported that it had noted with concern the high number of rejected ballots at the Polling stations. Initially, IEBC’s electronically transmitted results showed a correspondingly high number of rejected votes. After abandoning the electronic transmission of results and relying on manual tallies, the number of rejected votes decreased dramatically. The Chairman of the IEBC attributed the reduction to a “bug in the commission’s database that multiplied the rejected votes by a factor of eight”.32 Under the theme ‘Post-Election Issues’ the AUEOM did not revisit the issue of rejected votes, a high number of which had been observed by their observers in the polling stations. In comparison to the AGLI’s report and the EUEOM internal report whose contents appeared in the Nairobi Star, aforementioned anomalies did not appear in the AUEOM final report.

  • 33 Mienke Mari Stertler, “Kenya’s elections: Observing the observers,” Good Governance Africa, http:// (...)

27Critics of observer missions representing regional groupings have argued against their objectivity. They argue that the missions are intergovernmental bodies whose governments share geopolitical interests and therefore are careful not to offend the incumbent government in their reporting of their observations. Kenya’s country Director for the Electoral Institute of Sustainable Democracy in Africa argued: “Observer missions from the AU, SADC (Southern African Development Community), EAC, ECOWAS (Economic Community West African States)… because they are intergovernmental bodies, there is the ‘you rub my back, I’ll rub yours’ approach to certifying elections… In other words they were not very critical in an effort not to offend the current government”.33

Occidental observers: EU Election Observation Mission

  • 34 European Union Election Observation Mission, “Preliminary statement: Kenyans demonstrate Strong Com (...)
  • 35 Star Reporter, “Election Not Transparent – EU Observers”, p. 1.

28The European Union Election Observation Mission, EUEOM, deployed 65 observers to assess the whole electoral process. The Mission observers issued a statement two days after the election which stated that the overall conduct of operations in all of the “polling station was good and that the recorded results reflected the will of voters”.34 This statement later on contradicted an internal report of the same Mission that was reported in one of the Kenyan dailies. The Star, a Kenyan daily, reported on some contents of the internal report that stated that “the processing of official election results, based on tallying the results on polling station forms lacked transparency at every stage”. The report further said that party agents and observers were not allowed to see how tallying was carried out, including in the National Tallying Centre at the Bomas of Kenya. It raised reservations on the transparency of the process and credibility of the results: “Neither election observers nor party agents had adequate access to the processes in the constituency, county and national tallying centres. Small but numerous mathematical inconsistencies could have had significant impact, given the small number of votes by which Kenyatta passed the 50% threshold”.35

  • 36 European Union Election Observation Mission, General Elections March 2013 Final Report, p. 31.

29The Mission’s final report however, glossed over the contents of the internal report which were reported by the Kenyan daily, The Star. Mathematical inconsistencies thought to have been possible to have had a significant impact in the internal report were written off in the final report as “widespread minor discrepancies in tallies and between numbers of votes cast for presidential and other races”. The report added that the differences “were almost all less than 1%” attributing the discrepancies to tallying errors and downplaying the likelihood of a rigged result.36 There was therefore an implication that the mathematical inconsistencies, earlier reported as significant, were negligible and could not have had any significant effect on the election.

  • 37 Ibid, p. 1.
  • 38 Sam Kiplagat and Carol Maina, “Lawyers want US, EU Observer groups Kicked Out,” The Star, February  (...)
  • 39 Jubilee Coalition Press Statement, “Unprofessional Involvement by EU Observers in Kenya’s Political (...)

30According to the EUEOM final report, EU observers found that the IEBC and its staff “succeeded in overcoming the technical and operational difficulties that arose on the Election Day to ensure that the integrity of the vote was protected”.37 The report also states that the secrecy of the vote was not sufficiently protected and that tallied results at lower levels were often not signed by party agents. The latter was mentioned in the internal report alongside noted mathematical inconsistencies by observers. Unsigned tallied results, some of which had mathematical inconsistencies vitiate the integrity of vote considering there was no mention in the EUEOM report of a rectification of the inconsistencies. In this respect, the report contradicts itself. The EUEOM could have compromised its reporting of the election so as to sanitise its image to the elected Jubilee government. A lawsuit intending to ban “Western” observer groups on the strength of “open bias” – EU and US Election observer groups – had been filed in Court by a Nairobi lawyer, Harrison Kinyanjui on 13 February 2013.38 The petitioner argued that the EUEOM had displayed open hostility to the election of Uhuru Kenyatta and William Ruto in the March 4, 2013 Elections. The Observation Mission also came under fire from the Jubilee coalition for “unprofessional and Partisan Involvement in Kenya’s Political and Internal affairs”. The coalition alleged that the EUEOM was helping CORD in its Election Petition.39 In a statement the Jubilee Coalition also lumped up the Observer Mission with the European Union, which was accused of covertly funding CORD’s main partner, Orange Democratic Movement, through a Non-governmental Organisation. Considering that most observer groups had given the election a clean bill of health, the EUEOM were probably unlikely to have a radically different report especially in the face of an accusation of bias during the election period.

Occidental observers: The Carter Center International Observation Mission

  • 40 The Carter Center, Carter center Congratulates Kenyan Voters on Peaceful Election, March 6, 2013.
  • 41 The Carter Centre, “The Carter Center Finds Kenya Election Results reflect Will of Voters,” April 4 (...)
  • 42 Ibid, pp.1-5.
  • 43 Ibid, p. 7.

31The Carter Center International Election Observation Mission to Kenya deployed 52 observers to observe the Kenyan election. The Observation Mission issued a statement 2 days after the polling day. It congratulated Kenyans Voters on peaceful elections, observed a high number of rejected votes just as the African Union Election Observer Mission did and appealed to political parties and candidates to exercise patience as the result process continued.40 A more comprehensive statement was issued on 4 April 2013, after results had been released, challenged in court and upheld. The statement found that the Kenya Election results, based on the manual tallying, reflected the will of Kenyan voters. The Centre believed that the manual tallying presented enough “guarantee to preserve the expression of the will of Kenyan voters” in spite of serious shortcomings in the Independent Electoral and Boundaries Commission’s management of technology and tabulation of final results.41 The statement however, decried a lack of transparency in the tallying process as well as an unwillingness to publish results by polling station.42 With regard to transparency, the Carter Center took exception to the IEBC decision to confine party agents and observers to the gallery of the national tally center, making effective observation impossible. The lack of transparency calls into question whether the process presented enough “guarantee to preserve the expression of the will of Kenyan voters” especially for the Presidential election which saw 8,418 votes prevent a run-off.43 Indeed, the observation of the results may or may not have had a significant impact on the results – a victory for Uhuru Kenyatta in the first round or a run-off – but the fact that there was no observation of the tallying process by agents and Observers at the tallying center, raises reservations on the credibility of the result.

  • 44 Interview with Stephen Mondon, Field Office Director, Carter Center Election Observation Mission, A (...)

32Like the EUEOM, the Carter Centre Election Observation Mission was accused of being partial while observing the 2013 election. An official of the mission revealed: “We were targeted by a petition that was trying to stop the accreditation of observers – American Observers. We were also targeted by a coalition that put the ICC and the west in one block – including the observer missions. In case the results were in favour of their rivals, they would say that they had influenced the outcome of the elections”.44

Conclusion

33The paper has shown how international and domestic observer missions, influenced by a politically sensitive environment, could compromise the reporting of their election Observation findings. In the case of KHRC, EUEOM, and the Carter Center Election Observation Mission, Election Observation was carried out amidst accusations of partisanship of these observer groups. This may have ultimately influenced their reporting. Missions such as the AUEOM and the EAC-IGAD-COMESA observation missions, it has been argued, may have been forged from intergovernmental bodies and could also have been diplomatic in reporting their observations to maintain the reciprocal relationship between the host state – Kenya – and other member states. Subsequent elections in other member states would oblige such like Election Observation Missions to endorse the electoral processes and results as credible, transparent and reflecting the will of the people. In ELOG’s case which employed citizen participation, the need for calm is likely to have influenced their reporting which did not query IEBC’s results nor raise any irregularities that were raised by the CORD Presidential Candidate and the Non-governmental organisation AFRICOG in the Presidential Election Petition. Kenya’s electoral environment was characterised by calls for peace and an adjustment to a new constitutional dispensation. This ultimately set the scene for messages whose content was measured from stakeholders in the election. A high premium was put on peace and this could have compromised the reporting of election observers. The endorsing of the election process by various observers could have set the scene for other observers to moderate their reporting. This would take place even if the endorsement was not a true picture of the nature of the actual process and validity of election results.

Bibliographie

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Interviews

Eva Kaloki, Programme Associate Electoral Governance Programme, KHRC, August 1, 2013, KHRC Headquarters, Nairobi.

David Were Project Leader, Uchaguzi, June 20, 2013. Valley Arcade, Nairobi.

Mercy Njoroge, National Coordinator, ELOG, July 31, 2013, ELOG Headquarters Nairobi.

Stephen, Mondon. Carter Center Election Observation Mission, April 12, 2013, Upper Hill, Nairobi.

Notes

1 African Union Commission, Report of African Union Election observation Mission to the March 4th 2013 General Elections in Kenya, p. 8.

2 Walter Menya, “Raila Ignores Police Warning,” The Star, February 6, 2013, http://www.the-star.co.ke/news/article-106017/raila-ignores-police-warning [archive].

3 National Cohesion and Integration Commission, “A Call to Peaceful elections,” January 27, 2013.

4 Interview with Daudi Were, Uchaguzi Project Leader, June 20, 2013, Valley Arcade, Nairobi.

5 Michela Wrong, “To Be Prudent is to be Partial”, IHT Global Opinion, March 14, 2013, http://latitude.blogs.nytimes.com/2013/03/14/erring-on-the-side-of-caution-kenyas-media-undercovered-the-election/ [archive].

6 Interview with Eva Kaloki, Programme Associate, Kenyan Human Rights Commission, August 1, 2013, Kenyan Human Rights Commission, Nairobi.

7 Ibid.

8 Article 10, Constitution of Kenya, 2010.

9 African Great Lakes Initiative, Report on Observation of March 2013 Kenyan National Elections, April 6, 2013.

10 Ibid.

11 Star Reporter, “Election Not Transparent – EU Observers”. The Star, March 20, 2013: 3.

12 Elections Observation Group, “The Official results are consistent with Elections Observation Group’s Parallel Vote Tabulation (PVT),” March 9, 2013.

13 Ibid.

14 Elections Observation Group, “Opening of Polls Statement,” March 4, 2013.

15 Ibid.

16 Elections Observation Group, “Press statement on Ongoing Tallying of Presidential Results,” March 7, 2013.

17 Ibid.

18 Interview with Mercy Njoroge, National Coordinator, July 31, 2013, ELOG, Nairobi.

19 Elections Observation Group, Press Statement, “The Official results are Consistent with Election Observation Group’s Parallel Vote tabulation,” March 9, 2013.

20 Elections Observation Group, “Press statement on Ongoing Tallying of Presidential Results,” March 7, 2013.

21 Election Observation Group, The Historic Vote: Report of The Elections Observation Group On the 2013 General Elections.

22 The Carter center, “Carter Center Congratulates Kenyan voters on Peaceful Election,” March 6, 2013.

23 African Union Commission, Report of African Union Election Observation Mission to the March 4, 2013 General Elections in Kenya, p. 17, undated report.

24 Interview with Mercy Njoroge, National Coordinator, July 31, 2013, ELOG, Nairobi.

25 Ibid.

26 Ibid.

27 Interview with Stephen Mondon, Field Office Director, Carter Center Election Observation Mission, April 12, 2013, Upper Hill, Nairobi.

28 Interview with Mercy Njoroge, National Coordinator, July 31, 2013, ELOG, Nairobi.

29 The Joint COMESA-EAC-IGAD Election Observer Mission, Preliminary Statement, March 5, 2013, p. 2.

30 Ibid., p. 6.

31 Ibid., pp.3-4.

32 Alphonse Shihundu, “IEBC Blames Database bug for rejected votes error, “Daily Nation, March 7, 2013, http://www.nation.co.ke/News/politics/-/1064/1714132/-/ayghod/-/index.html [archive].

33 Mienke Mari Stertler, “Kenya’s elections: Observing the observers,” Good Governance Africa, http://gga.org/analysis/kenyas-elections-observing-the-observers/ [archive].

34 European Union Election Observation Mission, “Preliminary statement: Kenyans demonstrate Strong Commitment to Democratic Elections,” March 6, 2013, p. 7.

35 Star Reporter, “Election Not Transparent – EU Observers”, p. 1.

36 European Union Election Observation Mission, General Elections March 2013 Final Report, p. 31.

37 Ibid, p. 1.

38 Sam Kiplagat and Carol Maina, “Lawyers want US, EU Observer groups Kicked Out,” The Star, February 14, 2013, p. 2.

39 Jubilee Coalition Press Statement, “Unprofessional Involvement by EU Observers in Kenya’s Political Scene and Internal Affairs,” March 2013.

40 The Carter Center, Carter center Congratulates Kenyan Voters on Peaceful Election, March 6, 2013.

41 The Carter Centre, “The Carter Center Finds Kenya Election Results reflect Will of Voters,” April 4, 2013.

42 Ibid, pp.1-5.

43 Ibid, p. 7.

44 Interview with Stephen Mondon, Field Office Director, Carter Center Election Observation Mission, April 12, 2013, Upper Hill, Nairobi.

Auteur

Masters in History and part-time Lecturer at Machakos University College.

© Africae, 2014

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