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Kenya’s Past as Prologue

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

The Election Commission and the Supreme Court: Two new institutions put to the test by elections

Marie Wolfrom

Note de l’auteur

This article was originally published in French under the title “Commission électorale et Cour suprême kényane à l’épreuve du scrutin: Deux nouvelles institutions fragilisées” DOI: 10.3917/afco.247.0053 (Afrique Contemporaine, n° 247, Élections Kenya, © De Boeck Supérieurs, 2013, 1re édition, Fond Jean-Pâques 4, B-1348 Louvain-la-Neuve).

Texte intégral

Introduction

  • 1 The Bomas of Kenya, a cultural centre on the outskirts of Nairobi, is often used for conferences.
  • 2 The Kenyan government established and officially named the Independent Review Commission (IREC) in (...)

1Kenya’s new Constitution, adopted in August 2010, arose from the embers of the 2007- 2008 post-election violence (PEV) and sought to avoid a repeat of that bloody episode, in particular by strengthening accountability and enhancing the independence of the Judiciary. The genesis of the document had started years earlier with several drafts, notably the one drafted from 2002 to 2005 by constitutionalists at the Bomas of Kenya.1 The final version also drew on the Kriegler Commission2 report, an uncompromising analysis of the contested December 2007 general elections (IREC, 2009).

  • 3 According to Article 163 (3a) of the constitution, the Supreme Court has “exclusive” authority to r (...)

2During a peaceful referendum, two thirds of Kenyans voted in favor of the constitution. This constitution specifies several electoral process measures adapted from the Kriegler Report recommendations. These include a new and independently nominated electoral board, the Independent Electoral and Boundaries Commission (IEBC), and a Supreme Court composed of seven justices empowered to resolve presidential election-related disputes.3 The 4 March 2013 election put to the test these two institutions for the first time in particularly complex circumstances: six simultaneous elections of national and local officials were to take place that day.

3Did these institutional reforms actually foster improvements in electoral administration? According to Robert Pastor, “the absence of independent ECs [electoral commissions] is likely to lead to ‘flawed’ elections, but the establishment of independent ECs is not sufficient to assure successful elections. The ECs must also be perceived as independent and competent” (Pastor, 1999: 18).

  • 4 According to an Ipsos Synovate poll published at the end of February 2013, 89% of Kenyans had confi (...)

4In terms of security, the situation has been far better. Although violent acts did occur, in particular in the months leading to the votes, they remained very localized and sporadic, and in no way commensurate with the massacres and massive displacements of 2007-2008. Despite this progress, the IEBC and the Supreme Court –which had held a record high public-confidence rating before4 Elections day – ultimately disappointed many Kenyans. Doubts hover over the integrity of IEBC: several audits still seek to clarify the otherwise obscure conditions for tenders and procurement of election materials. The commission also faces doubts about its competency and professionalism, given the failure of all the expensive electronic systems it had set up in the name of transparency and fairness, the missing electoral forms and modified registries, and the underwhelming response of election officials toward the malfunctions.

5The Supreme Court ruling seemed to favor political concerns over legal ones. Under strong pressure from both camps – namely, the Jubilee coalition of Uhuru Kenyatta and William Ruto as opposed to Raila Odinga and Kalonzo Musyoka’s CORD coalition – the judges shielded their reasoning from scrutiny, undermining their appearance of authority. Their final decision was criticized as lacking depth or a solid legal argument.

6The present article will explore the process that led to this end result – thus showing how the constitutional reforms intended to bring transparency and credibility to the electoral process in Kenya eventually failed to bring about their stated goals. It does so by drawing upon daily first-hand observations of the situation in Kenya during the entire electoral period, from voter registration to the Supreme Court’s validation of the presidential election outcome. A selection of newspaper articles, along with interviews conducted after the elections with electoral experts, jurists and election workers – notably the IEBC chairman, Ahmed Isaack Hassan – complement these observations.

A new “independent” electoral commission, the IEBC

  • 5 The ECK was chaired by Samuel Kivuitu, who admitted on 2 January2008 that he did not know if Mwai K (...)

7The Electoral Commission of Kenya (ECK)5 that presided over the December 2007 elections did not survive the cataclysm that followed: more than a thousand people killed and 600 000 displaced. Although reports and scholarly works have shown that politicians had orchestrated most of the violence, the electoral commission – utterly overwhelmed and manipulated – suffered the greatest loss of credibility. The Kenyan parliament dissolved the ECK at the end of 2008, dismissing all its members from commissioners down to technical workers. However, the commission did not entirely deserve its fall from grace; after all, it had organized the 2002 presidential elections, considered by many as Kenya’s most transparent elections ever, and the 2005 constitutional referendum. However, President Mwai Kibaki’s hurried and unilateral appointment of several commissioners just before the December 2007 election – in violation of political balance rules – sounded the ECK’s death knell.

  • 6 Each commissioner represents one of Kenya’s eight provinces. They were nominated by a parliamentary (...)

8Kenya had no electoral commission for five months until the creation of the Interim Independent Electoral Commission of Kenya (IIEC) in May 2009, which was established by a 2008 amendment (Art 41) to the Constitution. The IIEC, chaired by attorney Ahmed Isaack Hassan and comprising eight other commissioners,6 moved into the ECK’s former premises and started its work afresh. It required a completely new secretariat and personnel; by law, it could hire no one who had worked for the preceding commission.

  • 7 The National Bureau of Statistics estimated that 1,733,000 registered voters died between 1997 and  (...)

9One of the commission’s first tasks was to create an entirely new voter registry, removing the 1.2 million phantom electors signaled in the Kriegler Report.7 The IIEC conducted voter registration from the end of March to the beginning of May 2010 for a total of 12.4 million, clearly fewer than the more than 14 million registered during the 2007 elections. It also ran early tests on a biometric voter registration and identification system in 18 electoral districts. On this basis, the IIEC successfully organized the August 2010 constitutional referendum, which took place without disruption nor any dispute over the result: 67% voted in favor.

  • 8 Robert A. Pastor (1999) distinguishes five types of electoral commission: an election office within (...)
  • 9 Taking care to maintain political balance, the President and Prime Minister may each nominate two c (...)

10Article 88 of Kenya’s constitution provided for a new electoral commission, named the Independent Electoral and Boundaries Commission (IEBC). The IEBC Act, approved by Parliament in June 2011, set out the means of selecting and nominating commission members. Breaking with the overtly political appointment practices of previous commissions,8 the Act stipulates a selection committee of seven members.9 It is these members who audition candidates and recommend several of them to the head of state, who then consults with the Prime Minister. The latter nominates the commission chairman and eight commissioners. The National Assembly must approve all nominees.

  • 10 A power-sharing agreement was made on 28 February2008, after more than a month of tough negotiation (...)

11This method of nominating members was aimed at ensuring the IEBC’s independence, but did not really achieve its goal. Indeed, politics insinuated itself in endless, out-of-view backroom deals from the choice of the selection committee members to the lawmakers’ approval of the commissioners. Within the Kibaki-Odinga coalition government, negotiated under international pressure to end the political crisis,10 each camp carefully pushed forward its own pawns. The electoral commission’s independence vis-à-vis the government is a key factor in the elections’ credibility (Mozaffar, 2002); however, ensuring its genuine independence remains a vital concern. Many experts consider that Kenya’s commission, rather than having a veneer of independence, would do better to return to openly political appointments of commissioners, with half given to the government and half to the opposition. As a legal expert declared, “This would not be an independent commission, but it would be a balanced one” (anonymous, author interview, May 8, 2013).

12All of the IIEC commissioners were candidates for a second term. Despite Ahmed Isaack Hassan’s appeal for more continuity, only he and two IIEC commissioners were retained in the IEBC. Hassan would later opine that this lack of continuity had adversely affected the organization of the 2013 elections (Ahmed I. Hassan, author interview on April 26, 2013).

13In November 2011, the IEBC commissioners were officially sworn in. They immediately began preparations for the general elections, which seemed to present special complexities. Unlike in previous contests, voters would have to vote, on Election Day, for six different positions instead of three previously: president, senator, representative, governor, local councilor and women’s National Assembly representative. Holding six elections simultaneously seemed a great challenge.

  • 11 In January 2012, the High Court ruled that the elections had to take place within 60 days of Parlia (...)

14In fact, a European observer noted, “To my knowledge, that has never been done in Europe” (EUEOM, 2013). The IEBC pushed back deadlines because of the difficulty of this task; some members of Parliament, who did not want to shorten their term in office, engaged in delaying maneuvers. Although the new Constitution had envisioned elections in August 2012 (later planned for December 2012),11 the IEBC finally set the date for March 2013 to allow more time for organization.

  • 12 In 2008, the Kriegler report criticized the constituencies’ imbalances, noting that Embakasi popula (...)
  • 13 58 parties registered within the 90-day legal limit.

15In compliance with Article 89 of the constitution, the IEBC first had to increase the number of electoral districts from 210 to 290. The Kriegler Commission had recommended redrawing constituencies whose number of voters was either too high or too low.12 Then the real preparations for the elections began with the registration of political parties13 and requests for tenders of electronic materials. After a successful 2010 pilot project for electronic registration in 18 districts, the IEBC proceeded with a new biometric registration system, using digital fingerprints and photographs to curb fraud. “And, after changing the electoral districts, we had to let voters register in the polling station of their choice”, explained Immaculate Njenga Kassait, IEBC director of voter registration (Immaculate Kassait, author phone interview, April 30, 2013).

16That is when the problems began. To this day, observers cannot tell whether these were due to inexperience, incompetence or willful sabotage. Disorganization plagued the tenders-request process for biometric voter registration kits. Commission members could not agree among themselves, and ended up cancelling the bidding process and opting to register voters manually. The Kenyan government rejected their decision, preferring to make a government-to-government deal with Canada for election materials. The two countries finally signed a contract at the end of September for 15,000 registration kits manufactured by Safran Morpho, a French company. It delivered the kits at the end of October and in early November.

  • 14 The purchase contract ballooned from KShs. 3.9 to 9.6 billion, provoking controversy: “The Governme (...)

17Because of the delay, the IEBC had only one month to register voters, between November 19 and December 18, 2012 deadline. To make up for lost time, it ordered 5,250 more biometric devices than the 9,750 originally planned. In the end, the IEBC utilized 15,000 biometric voter registration kits in approximately 25,000 voter registration centers. This generated a huge cost overrun and a commensurate controversy.14 The commission set a goal of registering 18 million people; it quickly became apparent that it could not reach that objective in the allotted time. Many Kenyans put off registering, either out of apathy or because they misunderstood the process, given that the IEBC had shortened its voter education materials and sent them out late. In some peripheral regions, voter registration kits arrived several days after the starting date. Nomadic herders who had travelled dozens of kilometers to register refused to come back at a later date (Ongiri, Odonga and Jenje, 2012). On the Kenyan coast, the Mombasa Republican Council (MRC), an autonomous movement that had called for an election boycott, appears to have deterred some potential registrants. Many young people were unable to obtain the required identity cards, and rumors that political parties were buying up identity cards to prevent certain voters from registering began circulating, These rumors, particularly widespread in the slums of Kisumu, seemed aimed at deterring certain segments of voters from registering at all.

  • 15 An estimated 2.5 million Kenyans live outside the country. Only 2,637, living in the nearby countri (...)

18On 18 December 2012, the IEBC announced that it had registered 14.3 million citizens and published provisional statistics for each electoral district on its website. The commission felt the registration drive had been successful given its short timeframe. However, in light of the financial and technical means deployed – much higher than in previous registrations – the drive fell well short of mobilizing the estimated 22 million eligible voting-age citizens. Moreover, the IEBC had registration of neither prisoners nor most of the Kenyan diaspora.15

19To reduce the likelihood of the type of fraud seen in 2007, the IEBC announced that electronic identification devices would identify voters at their polling stations. Moreover, it also planned to use an electronic results transmission system to facilitate the immediate release of provisional results. Upon completing their counts, polling station officers would use a secure mobile phone network to send results to the national election center at the Bomas and to the 290 electoral districts and 47 counties. Electronic transmissions would, in theory, allow for a check on manually filled-in forms. This was meant to provide an additional level of security, especially given the alterations to forms that had been seen in the past. The IEBC then vaunted this apparently airtight process in the press. It even challenged hackers to try breaking into the transmission system, by way of demonstrating its complete effectiveness.

20Unfortunately, on Election Day, this edifice crumbled like a house of cards. Despite internal criticisms and warnings from the commission’s own IT director, the IEBC belatedly purchased identification kits from the South African company Face Technologies; these kits arrived too late for the commission to train all election workers in their use. By Election Day, many polling stations had not yet received their kits, or could not use them correctly because they lacked fully charged batteries or appropriate passwords. This caused delays, with polls opening after the planned 6: 00 a.m. hour in many constituencies. Many voters had waited in queues since 3: 00 a.m.; often they had come in trucks chartered by political parties. In most cases however, a later closing hour made up for the late opening, since everyone still waiting at 5: 00 p.m. – the official close of polling – was supposed to be allowed to vote.

21Given the lack of working identification kits, most polling stations opted to manually record voters, using a paper registry provided by the IEBC. The means used to organize these lists – whether alphabetically by first name or by surname – remain a mystery, since the IEBC has never made the lists publicly available. During the ensuing debates at the Supreme Court, it will appear that different types of paper registries had been used on Election Day, thereby casting doubts on their credibility. In some polling stations, election workers had voters queue up alphabetically by first name; in others, by last name. These differences created much confusion; some voters waited many hours in one queue before realizing they should have waited in another.

  • 16 The main goals of the Carter Center, a foundation created by former American president Jimmy Carter (...)
  • 17 In Kenya, constituents traditionally give priority votes to representatives of their ethnic group. (...)

22As promised, at 6: 00 p.m., the IEBC began announcing the provisional voting results that had been transmitted directly from polling stations, even though some were still open for people to vote. However, the electronic transmission system, intended to increase transparency by sending closing totals for broadcast on all television stations, struggled to meet its commitment. As the Carter Center16 noted, “The information displayed was often inaccurate, displaying sums that did not match numbers on the screen” (Carter Center 2013: 4). “The unreliability of the data displayed through the tabulation process undermined public trust in the IEBC” (Carter Center, 2013: 6). Strangely, the gap in votes between the two presidential candidates, who were running head-to-head, varied only slightly, whereas the results differed greatly between regions, an obvious symptom of voting along ethnic lines.17

  • 18 Rejected ballots are unmarked, marked in error or put in the wrong ballot box. They should not be c (...)
  • 19 The number of rejected ballots ultimately fell to 108,975 in the official results, or 0.88% of vote (...)
  • 20 Article 138 (4) states: “A candidate shall be declared elected as President if the candidate receiv (...)

23The provisional results also showed a very high percentage of rejected ballots18 – some 300,000 of the 40% of votes published on 5 March, or about 7% of all ballots.19 At first, the IEBC did not include these rejected ballots in their calculations of candidate vote shares, placing Uhuru Kenyatta above the 50% threshold. The Coalition for Reform and Democracy (CORD) officially lodged a protest against the commission, putting forward that Article 138 (4) of the constitution states that “all the votes cast”20 must be counted whether valid or not. On the evening of 5 March, Ahmed Isaack Hassan announced that the rejected ballots would be included in percentage calculation, provoking anger among the Jubilee coalition of Uhuru Kenyatta and William Ruto. The Carter Center criticized this decision: “This last-minute interpretation of the definition of ‘votes cast’… should have been taken well in advance and shared with stakeholders in order to avoid the confusion that followed this decision on such a crucial issues” (Carter Center 2013, 4). It seems that the commission acted casually or hurriedly: as its chairman has since admitted (Ahmed Hassan, author interview, April 26, 2013), it did not wait for the legal advice it had solicited before announcing the change. Its interpretation of “all votes cast” would later be contested before the Supreme Court.

24On the evening of 5 March, the IEBC chairman acknowledged the failure of the electronic transmission system; it had supplied a trickle of early results before completely breaking down in the morning. He then summoned election directors from 290 electoral districts to Nairobi in order to tabulate ballots manually.

25A long wait began for all Kenyans, who saw themselves plunged into something of a repeat of 2007. Election officials verified the results of each district at the Bomas of Kenya central election center, and then read the results live on television. On seeing how long the tabulation was taking, the media preached patience, but tensions rose when some district-level election managers took several days to arrive in Nairobi. Election officials accused agents from the political parties of disruptive behavior – excluding them, as well as local and international observers, from the tabulation room. The Carter Center “regrets the IEBC decision to confine party agents and observers to the gallery of the national tally center, making effective observation impossible” (Carter Center, 2013: 7).

  • 21 In violation of international procedures, local and international election observers were also aske (...)

26Even before the results were announced, it quickly became apparent that the CORD coalition was dissatisfied with the balloting and tabulation process, and that it intended to file a complaint. Anyang’ Nyong’o, one of CORD’s campaign managers, sent more than a dozen letters to the IEBC to protest irregularities, apparently without receiving a reply. All of these letters, clearly designed to make CORD’s position known before any hearing, appeared in CORD’s submission to the Supreme Court on 16 March. During a press conference at the Serena Hotel on Thursday7 March, Kalonzo Musyoka, fellow candidate of Raila Odinga in the CORD coalition, demanded that the electoral commission stop the tabulation and start over, by publishing the official reports coming out of the polling stations, the Forms 34, rather than Forms 36 that show aggregated results at the constituency level. The outgoing Vice President presented three main arguments to justify his request: (1) the failure of the electronic voter identification kits in, he claimed, “more than 80% of the country” or, according to the electoral commission, in about half of the polling stations; (2) the failure of the electronic transmission system that was supposed to prevent fraud but which he said caused “tainted counts”; and (3) the IEBC’s refusal to allow CORD’s electoral agents21 to observe the ballot tabulations at the electoral center in the Bomas.

27The election commission circumvented Musyoka’s demands, and on Saturday March 9, announced Uhuru Kenyatta’s victory with 50.07% of votes, 8,000 above the 50%-plus-one threshold required to win the first round of voting. Two hours later, in a speech before the media entitled “Democracy on Trial” (Odinga, 2013), Raila Odinga denounced “another biased election” with questionable results, comparing it to December 2007. However, in this statement broadcasted live on television and radio, and eagerly awaited by all Kenyans fearful of new violence, Odinga weighed his words to avoid inflaming his audience:

“Any violence now could destroy this nation forever. That would not serve anyone’s interest… we would have readily conceded if IEBC had attempted to deliver a reasonably honest election,” Odinga declared before announcing his legal complaint. “We have a new independent judiciary in which we in CORD and most Kenyans have faith. It will uphold the rule of law, and we will abide by its decisions… Let the Supreme Court determine whether the result announced by IEBC is a lawful one.”

The Supreme Court’s dilemma

28Given the increasingly tense situation, Chief Justice Willy Mutunga stated that the Supreme Court was ready to handle any electoral petition brought forward. The looming Supreme Court trial looked to be a great test for the new institution that had only published one ruling on gender parity in Parliament. As with the electoral commission, the Court’s seven members had gone through a rigorous selection process in 2011. They had been auditioned by the five-member Judicial Service Commission (which included the former president of the Law Society of Kenya, lawyer Ahmednasir Abdullahi), and the Commission had passed their nominations to outgoing President Mwai Kibaki and Prime Minister Raila Odinga. The coalition agreement stipulated that Kibaki and Odinga had to agree on the candidates; Parliament eventually confirmed their selections.

29The process was an unprecedented exercise in transparency. The hearings were broadcast live and almost entirely transcribed in the following day’s newspapers. However, despite the strict process set out in the new constitution, intended to avoid all accusations of nepotism or favoritism, the Supreme Court nominations could not avoid controversy entirely. As with the IEBC, the desire to achieve an ethnic and political balance sometimes overshadowed a careful examination of competencies. “Justice Philip Tunoi was chosen because there had to be a Kalenjin and he was the best of the bunch,” claimed a legal expert and observer of the judiciary (anonymous, author interview on May 7, 2013). Another legal expert added: “We ended up with intellectuals who lacked judicial experience and judges who lacked an intellectual dimension” (anonymous, author interview on May 10, 2013).

  • 22 A High Court petition was filed against his nomination in June 2011, and rejected in May 2012.

30The choice of Chief Justice proved particularly thorny. Willy Mutunga, known for his unimpeachable integrity, quickly appeared to be the favorite. A lawyer by training, he was a militant reformer who had long fought for constitutional changes and expansion of political parties; he was also a famous activist who had been imprisoned in the 1980s. However, his candidacy met with some opposition. Some judges feared a purge of those discredited by accusations of incompetence and corruption. Others mocked Mutunga’s frequently changing religious beliefs – successively Animist, Protestant and Catholic before his conversion to Islam. They also criticized his turbulent private life, including two divorces and two children born out of wedlock. Some made fun of his diamond-encrusted left ear and his stance in favor of gay and lesbian rights. When Mutunga was questioned about his earring during his hearing, he explained that he wore it in homage to his ancestors, and that he was not homosexual. In 2011, the legislators finally nominated Willy Mutunga as Chief Justice; they also nominated Nancy Baraza as his deputy and Keriako Tobiko as Director of Public Prosecutions (DPP). The executive branch presented the three as a take-them-or-leave-them team; this maneuver meant that the highly-contested22 Keriako Tobiko rode to the strategic position of DPP on the back of Mutunga’s and Baraza’s popularity. Nor did other justices receive unanimous approval. Njoki Ndung’u, a former legislator, was considered too political because of her participation in Mwai Kibaki’s PNU party campaign in 2007. Mohammed Ibrahim was almost excluded (he had been criticized for being too slow in making rulings on the cases before him) from the bench before finally being cleared in January 2013.

31In October 2012, Nancy Baraza was suspended and then forced to resign after mistreating and insulting a security guard who, nine months earlier, had tried to inspect her purse at a mall entrance. Lady Kalpana Rawal replaced Baraza, but too late to for confirmation by a Parliament that would dissolve before the elections.

  • 23 Willy Mutunga, Philip Tunoi, Jackton Ojwan’g, Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u.

32In March 2013, therefore, six justices23 rather than seven examined the validity of the three petitions filed with the Supreme Court. This raised some questions about how to reach a majority decision: Did the Chief Justice wield a dominant vote? What would happen if the Court were split three-to-three? An answer came quickly: in the event of a tie, Kenyatta’s victory declaration would prevail. Those contesting his victory had to convince at least four of the six justices.

33To avoid a power vacuum (or conversely, a situation like Ghana’s, where President John Dramani Mahama had been sworn in despite a still-pending petition in the courts), the new Kenyan constitution provides for a tight timeframe in the event of a disputed presidential election. According to Article 140, the parties have seven days from the official announcement of results to lodge a complaint. The Supreme Court in turn has two weeks to hold hearings and make a ruling from which there is no appeal. As with the American model, in the interim the election winner becomes the president-elect and prepares his or her transition into office with the help of the outgoing president, who expedites current business. However, the constitution does not define the conduct of these parties in the event that the Supreme Court receives a petition contesting the results; this caused much discussion, particularly about whether a president-elect in a contested election might receive confidential information about the country’s security. On these grounds, the CORD coalition harshly criticized meetings that Uhuru Kenyatta held with the chief of staff and the head of Kenya’s intelligence agency.

34The time restrictions played a significant role in the petition. Many lawyers thought the timeline was too short for those making the complaint. Given the complexity of gathering evidence, many electoral documents were unavailable on 9 March, when the election results were published. The CORD coalition had to summon the IEBC before the High Court before they could obtain a copy of the election proceedings.

35Although some lawyers have since proposed extending the deadline to 45 or even 60 days, the timelines cannot be modified without a constitutional amendment. This means that political parties and their candidates would be well advised to prepare for cases of suspected fraud in advance, by gathering as much data as possible when the elections start. CORD’s leaders clearly had not done this; they tacitly admitted that they had not deployed agents to all polling stations, unlike the opposing Jubilee camp’s faultless organisation. Lacking agents in certain locations, particularly in the Central and Rift Valley regions, CORD was unable to make a parallel ballot tabulation that would have allowed it to challenge results polling-place-by-polling-place, a deficiency that would weigh heavily upon its petition.

  • 24 Several political pundits questioned this percentage, since participation rates in the presidential (...)

36Meanwhile, Jubilee spent KShs. 3.5 million (Nesbitt 2013) on a call center, hosted by Kencall, to centralize the results submitted by its agents in 33,000 polling stations. This allowed the Kenyatta-Ruto camp to announce provisional results on Thursday, 7 March to a limited few; these results were very close to those announced by the election commission two days later. Tweets disseminated the so-called record participation rate of 86%24 starting on the night of Monday 4 March 4– five days before the IEBC’s official announcement. This occurred even though some polling stations were still open at the time; to this day, no one knows whether it was simply a coincidence or not.

  • 25 In 1992 and 1997, complaints had been filed against the election and re-election of Daniel arapMoi. (...)
  • 26 The lawyers cost KShs. 360 million; as of early August 2013, this remained unpaid, infuriating the (...)
  • 27 Abdullahi insisted that the Supreme Court itself was “being tested,” comparing it to a “crawling ba (...)

37A three-week judicial marathon followed the 9 March announcements. Time was short for both the plaintiffs and the defense. They hired the country’s most prestigious lawyers for what promised to be a historic and unprecedented trial,25 one entailing a crucial and uncertain outcome. The IEBC engaged a record 20 lawyers.26 Its chairman, Ahmed Isaack Hassan, employed more than three defense attorneys for himself; one, Ahmednasir Abdullahi, had helped select the sitting Supreme Court justices in 2011, during his tenure on the Judicial Service Commission. This placed the justices in a somewhat awkward position and gave Ahmednasir Abdullahi a psychological upper hand which he used during the auditions.27 The process also saw ethnic favoritism, as nearly every plaintiff and defendant hired an attorney from his own ethnic community: Uhuru Kenyatta employed Fred Ngatia, William Ruto hired Katwa Kigen, and Raila Odinga engaged George Oraro.

  • 28 On 20 February, Mutunga gave a press conference to discuss a threatening letter he had received fro (...)

38Strong external pressure was put on the Court,28 especially on Chief Justice Willy Mutunga; some told him he should withdraw because of his past support for Raila Odinga’s candidacy (News Time 2013; Associated Press 2013). It was assumed by some that he would side with civil society, given that he was “one of their own.” Nazlin Umar, a political activist and 2007 presidential candidate, verbally attacked the Chief Justice on the first day of hearings (25 March) in an obvious effort to intimidate him. On an unprecedented live television broadcast of the arguments, Umar accused Mutunga of bias toward the Prime Minister. Interestingly, Umar had found a front-row seat among the lawyers in an area that required a special identification badge, despite the draconian security measures taken for the trial.

39Three election petitions were filed with the Supreme Court. The CORD coalition and the Africa Center for Open Governance (AfriCOG) demanded the invalidation of the election results, on the grounds that they were not free and fair as required in Article 81 (c) of the constitution. These petitioners especially criticized the inexplicable variations between the number of registered voters on 24 February – the date the voter registry was published – and the number used on Election Day. They also criticized the failure of all the electronic verification and transmission systems, the differences between the results reported by polling stations on the Forms 34, and the results aggregated at the constituency level on Forms 36.

40In addition, two of Kenyatta’s supporters filed a petition to overturn the IEBC’s decision to count rejected votes in the tabulation of results. At the start of arguments, the Court ordered verification of Forms 34 and 36 from 22 polling stations and a recount of all forms from all 33,000 polling stations.

41On the other hand, the Court dismissed a CORD affidavit that offered new evidence, ruling that CORD was too late in filing it and had done so without the Court’s permission. The Court also dismissed a request from AfriCOG asking for an audit of all the manual voter registries used on Election Day. The Court did allow Attorney General Githu Muigai to participate in the trial as an amicus curaie, or friend of the Court, but refused to grant the same status to Yash Ghai, one of the fathers of the Kenyan constitution, whom the defendants considered too partisan.

42After four days of intense arguments, the Court announced its verdict at the end of the day just before Easter, on 30 March. Willy Mutunga announced briefly and without explanation the panel’s unanimous decision confirming Kenyatta’s narrow victory, while excluding the rejected ballots from the count – a ruling that shocked the plaintiffs. George Oraro, a courteous and usually calm lawyer, stood up to leave the room upon hearing the Chief Justice’s first words, before sitting down again. The losing side was more disturbed by the justices’ unanimity than by the failure of their petition. They may have questioned whether it was real unanimity, or a political decision to maintain the country’s cohesion.

43The Supreme Court ruling angered some, provoking demonstrations in Kisumu and in the Kawangware slum in Nairobi; a strong police presence nipped these protests in the bud. Raila Odinga announced that he would respect the judges’decision even as he signaled his disagreement with their ruling, claiming that “Kenyans lost their right to know what really happened”.

  • 29 A team of analysts working for the Supreme Court found significant discrepancies in the counts of f (...)

44Although criticism remained muted before publication of the Supreme Court’s detailed judgment, an uproar ensued after the ruling appeared on 16 April, two days late. Contrary to tradition, the judges neither read nor summarized the 113-page ruling aloud before the Court (TheStarKenya 2013). Several civil-society lawyers rose up in arms, submitting opinion pieces to the press and calling the judgment “lazy” and “casual” (Murunga, 2013; Maina, 2013; Ongoya, 2013). They especially criticized the Court’s use of dubious Nigerian jurisprudence, and railed against the rejection of the supplemental evidence tardily submitted by CORD’s attorneys. Furthermore, the Court, for all intents and purposes, ignored the findings of the ballot recount it had ordered, despite the fact that the new tabulation revealed several mistakes and internal errors in the IEBC’s published election results.29 Although the Court acknowledged some imperfections, it found that the petitioners did not succeed in showing how these errors drastically affected the election results; in this, the Court set a very high threshold for the evidence required to challenge presidential election outcomes. The Court directed its only criticism toward the IEBC’s tender-award and procurement process, recommending an investigation.

45Chief Justice Willy Mutunga seemed shaken by the avalanche of attacks in the media and on social networks, and by his weak public support. He defended himself on his Facebook page, asking Kenyans for “justice for the Supreme Court” and denying accusations of corruption. His knee-jerk reaction surprised many and was considered a sign of weakness (Otieno, 2013). In May, the Supreme Court published an addendum to its ruling that corrected several errors without changing the substance (Nation Media Group, 2013). While this step may prove valuable for legal purposes, inasmuch as the ruling will be used in future Court decisions, it further weakened the institution’s image of infallibility.

Conclusion

46The elections passed peacefully for the most part, although some Kenyans still question the outcome. Was justice sacrificed on the altar of peace? Given the scale of the errors and the doubts cast on its results, how could so many watchdogs – international observers as well as the High Court – have concluded that the election had been free, fair and transparent? Are such irregularities inevitable? If so, must Kenyans resign themselves in perpetuity to accepting imperfect election results?

47Most accepted the situation, wanting to get on with their lives as quickly as possible. Others found that the elections left a bitter aftertaste. Many Kenyans felt keenly disappointed in the IEBC and Supreme Court, feeling that both had betrayed their hopes for solid and reliable institutions.

48Once again, the 2013 Kenyan elections showed that institutional reforms are a necessary but insufficient condition for legitimating the electoral process. Without political will to implement the legal reforms, Kenya’s elections may long remain open to doubts. It seems a shame that the courts failed to prosecute electoral infractions committed in plain sight across the country, such as vote rigging and voter intimidation. Nor did the courts pursue voters who registered multiple times, despite the commission’s assurances that it would prosecute such offenses.

49Since the elections, the IEBC has been audited; if these investigations uncover proof of irregularities, the commission’s image will be further tarnished. DPP Keriako Tobiko, complying with a Supreme Court recommendation, has ordered an inquiry into the commission’s procurement activities.

  • 30 Some call for the ouster of Chairman Hassan, who personally cast doubts on Raila Odinga in his affi (...)

50In July 2013, former Prime Minister Raila Odinga threatened to boycott all future large elections the IEBC might organize in the future, demanding that the commission undertake fundamental reforms. According to him, the IEBC is “the most corrupt and inefficient electoral commission in the history of this country” (Mosoku, 2013). To date, government and lawmakers have yet to respond or take a position, and their ultimate position will generate further questions. Will authorities draw lessons from 2013 that lead to major repercussions, as occurred in 2008? These might include the ouster of some commissioners,30 or even the creation of a new electoral commission if investigations find proof of serious or criminal offenses. Or will a coalition of lawmakers with common political interests protect the electoral commission’s current leadership?

51The Supreme Court’s situation poses more of a paradox. While the public retains trust in the institution, albeit an eroded one, some segments of civil society do not; they remain disturbed by what they perceive as Willy Mutunga’s betrayal. Rare shows of support for him have not counterbalanced the many criticisms that have appeared in the press; the Chief Justice revealed his consequent hurt and worry through a public – and surprising – statement on Facebook.

52It is hard to tell if this episode has permanently tarnished Mutunga’s credibility. The Supreme Court remains a young institution and Kenyans give it the benefit of the doubt. However, they will closely examine this Court’s future decisions to see if it will adopt a progressive stance in the spirit of the constitution, or a more conservative one along the lines of its first two decisions. One may also wonder whether the high burden of evidentiary proof required will deter future losing candidates from petitioning the Court.

  • 31 The IEBC’s identification and transmission systems did work perfectly during Makueni’s partial sena (...)

53The IEBC must not take shortcuts in reviewing its procedures for requesting tenders, hiring and training election workers, and educating the public. It should also learn from its technology failures.31 The electoral commission needs a push to look into these matters; so far it has distinguished itself by a lack of self-doubt. By continuing debates about the 2013 elections, civil society has attempted to impel the commission toward change. Two Kenyan nongovernmental organizations, AfriCOG and Inform Action, set up an Internet site called “The People’s Court” – effectively thumbing their noses at the electoral commission. The site collects eyewitness voter accounts of election proceedings, and analyzes voting statistics and the Supreme Court ruling.

54Kenyans, especially the winning party’s members, have repeatedly and forcefully called for the country to turn the page on the elections and move forward. Questioning Kenyatta’s first-round win appears futile; however, it seems crucial to ask how to improve the electoral process by 2017, in order to prevent the errors and irregularities observed in 2007 and 2013, and to avoid permanently discouraging voters’ participation.

Bibliographie

Bibliography

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Notes

1 The Bomas of Kenya, a cultural centre on the outskirts of Nairobi, is often used for conferences.

2 The Kenyan government established and officially named the Independent Review Commission (IREC) in February 2008 to investigate implementation of the December 2007 general elections. The IREC was later renamed after its president, Johann Kriegler, a former judge from South Africa.

3 According to Article 163 (3a) of the constitution, the Supreme Court has “exclusive” authority to resolve all disputes arising from presidential election results.

4 According to an Ipsos Synovate poll published at the end of February 2013, 89% of Kenyans had confidence in the IEBC and 72% trusted the Supreme Court. At the end of June, according to the same polling institute, only 32% had high confidence in the IEBC and 34% in the Supreme Court.

5 The ECK was chaired by Samuel Kivuitu, who admitted on 2 January2008 that he did not know if Mwai Kibaki had truly won the December 2007 presidential election.

6 Each commissioner represents one of Kenya’s eight provinces. They were nominated by a parliamentary select committee, approved by the National Assembly and appointed by the President in consultation with the Prime Minister.

7 The National Bureau of Statistics estimated that 1,733,000 registered voters died between 1997 and 2007, but the ECK had only erased 513,000 names from the voter registry. According to the Kriegler Commission, 1.2 million deceased voters remained in the registry used in 2007.

8 Robert A. Pastor (1999) distinguishes five types of electoral commission: an election office within the government; an election office within a government ministry but supervised by a judicial body; an independent election commission manned by experts and directly accountable to Parliament; a multiparty election commission, composed of representatives of all political parties; and a non-partisan election commission, composed of distinguished individuals proposed by the president and legislature, such as Kenya’s IEBC.

9 Taking care to maintain political balance, the President and Prime Minister may each nominate two committee members. Mwai Kibaki chose Mwanyengela Ngali and Marion Mutugi, while Raila Odinga nominated Ekuru Aukot and Rosa Akinyi Buyu. Judge Isaac Leanola from the Judicial Service Commission, Irene Keino from the Kenya Anti-Corruption Commission, and Sophie Njeri Moturi, from the Association of Professional Societies of East Africa, together nominated the remaining IEBC members.

10 A power-sharing agreement was made on 28 February2008, after more than a month of tough negotiations under the guidance of Kofi Annan, former United Nations General Secretary.

11 In January 2012, the High Court ruled that the elections had to take place within 60 days of Parliament’s termination, 14 January 2013, unless the coalition in power ended prematurely.

12 In 2008, the Kriegler report criticized the constituencies’ imbalances, noting that Embakasi population was 351% above the average, while Lamu East represented only 18% of the average.

13 58 parties registered within the 90-day legal limit.

14 The purchase contract ballooned from KShs. 3.9 to 9.6 billion, provoking controversy: “The Government Loses Billions in BVR Deal” (Menya, 2012).

15 An estimated 2.5 million Kenyans live outside the country. Only 2,637, living in the nearby countries of Burundi, Rwanda, Tanzania and Uganda, were able to register to vote. Prisoners had been allowed to vote in the 2010 referendum, but the IEBC did not make this possible in the 4 March election, despite a High Court ruling authorizing such votes.

16 The main goals of the Carter Center, a foundation created by former American president Jimmy Carter, include defending human rights, resolving conflicts peacefully, and observing elections.

17 In Kenya, constituents traditionally give priority votes to representatives of their ethnic group. Thus Uhuru Kenyatta garnered 93% of the votes in the Central region, essentially populated by Kikuyu, his ethnic group. Raila Odinga gained more than 86% of vote in the Nyanza region where Luo predominate.

18 Rejected ballots are unmarked, marked in error or put in the wrong ballot box. They should not be confused with “spoilt ballots”, which are tossed before being put in a ballot box.

19 The number of rejected ballots ultimately fell to 108,975 in the official results, or 0.88% of votes cast. This seems low for such a complex election; the percentage of rejected ballots in the 2010 “yes-no” referendum stands at 2.4%. The IEBC justified it as a computer error that multiplied the number of rejected ballots by eight during the electronic transmission, without convincing the losing side, who perceived this as numbers manipulation.

20 Article 138 (4) states: “A candidate shall be declared elected as President if the candidate receives more than half of all the votes cast in the election; and at least twenty five per cent of the votes cast in each of more than half of the counties”.

21 In violation of international procedures, local and international election observers were also asked to leave the tabulation room. They were relegated to a gallery where it was impossible to see anything. The Carter Center and the European Union Election Observation Mission criticized this in their report on election proceedings.

22 A High Court petition was filed against his nomination in June 2011, and rejected in May 2012.

23 Willy Mutunga, Philip Tunoi, Jackton Ojwan’g, Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u.

24 Several political pundits questioned this percentage, since participation rates in the presidential elections of 2007 and 2002 only reached 69% and 57.18% respectively.

25 In 1992 and 1997, complaints had been filed against the election and re-election of Daniel arapMoi. At the time, the judiciary was so politically captured that it rejected the pleas for procedural reasons.

26 The lawyers cost KShs. 360 million; as of early August 2013, this remained unpaid, infuriating the attorneys (Nation Media Group 2013).

27 Abdullahi insisted that the Supreme Court itself was “being tested,” comparing it to a “crawling baby”.

28 On 20 February, Mutunga gave a press conference to discuss a threatening letter he had received from the mysterious “Mungiki Veterans Group”. He complained that he had been prevented from taking a plane to Tanzania on February 14 because of a memorandum from Francis Kimemia, the head of Kenya’s civil service.

29 A team of analysts working for the Supreme Court found significant discrepancies in the counts of five of the 22 polling stations. The team also found many missing or faulty forms 34 and 36 across all stations. However, the magistrature’s registry, which was supposed to show the justices the results of the analysis, was presented in a summary fashion that minimized the problems.

30 Some call for the ouster of Chairman Hassan, who personally cast doubts on Raila Odinga in his affidavit, accusing him of inability to acknowledge electoral defeat.

31 The IEBC’s identification and transmission systems did work perfectly during Makueni’s partial senatorial election on 26 July2013. This led the IEBC to congratulate itself, and the losing party in the presidential elections to wonder yet again about the system failures in March.

Auteur

Freelance journalist and Masters holder from Sorbonne University, Paris, France.

© Africae, 2014

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