The 2012 Kenyan Constitution mandates in Article 81: “The electoral system shall comply with the following principles––
(e) free and fair elections, which are—
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate
and accountable manner.
Thus “free and fair” is the legal standard in Kenya. So what standard did the international observer missions that issued their reports on Kenya’s elections without waiting for the official results apply?
One month after the election, on April 4th, the Carter Center released its postelection statement. “In spite of serious shortcomings in the Independent Electoral and Boundaries Commission’s management of technology and tabulation of final election results, the paper-based procedure for counting and tallying presented enough guarantees to preserve the expression of the will of Kenyan voters.”
Kenneth Flottman, an independent elections consultant, noted that not one of the observer missions referred to the elections as “free and fair” in their preliminary or post-election reports. “Holding back on calling the election ‘free and fair’ reflects the reality of the known problems with the election,” Flottman said. “At its most crass, this is a way to say that the government in power cheated some, but the opposition probably would have lost anyway.”
He conceded that “there is a tendency to apply lower standards to achieve a ‘free and fair’ election in Africa compared to other regions [of the world]. If anything, this makes the decision not to apply the label to this election in Kenya more noteworthy.”
David Pottie, associate director of the Carter Center’s democracy programme, contested this view. “It isn’t that African elections are held to a different (higher or lower) standard than countries elsewhere in the world,” Pottie said in an e-mail. “Rather, the Carter Center bases its assessment on a) Kenya’s international obligations and b) Kenya’s constitutional and legal framework.” He added that “free and fair” is no longer the “language of choice in international public law”.
Peter Visnovitz, EU election observation mission spokesperson, agreed: “The ‘free and fair’ phrase fell out of use because defining an election as ‘free and fair’ is very black and white—it requires a yes or no answer. Whereas, in fact, electoral processes are complex and it is very difficult to come up with a concept of ‘fair’ that would please everyone.”
Ilona Tip, operations director at EISA’s South African office in Johannesburg, explained that phrases like “transparent and credible” or “the expression of the will of voters” are now preferred.
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