An insider’s explanation of the difference between a “free and fair” election and a “will of the people” election–Kriegler deputy’s memoir

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In his book Birth: the Conspiracy to Stop the ’94 Election, Peter Harris, a South African lawyer who was in charge of the “election-monitoring division” of that country’s Independent Electoral Commission in 1994 (under Johann Kriegler, later appointed by President Kibaki to head Kenya’s 2008 IREC or “Kriegler Commission”, charged under Kenya’s 2008 post-election settlement with, inter alia, investigating the failed presidential vote) elaborates:

“Why would anyone want to run a free and fair election that will remove them from power? . . . Enter the election-monitoring division, whose primary job is to ensure that the election is free and fair. . . .
What constitutes a free and fair is a major issue for us.  The high level of violence can have a major effect.  In short, the tense situation in Bophuthatswana can jeopardize everything.
Declaring an election free and fair depends on a number of considerations, but chief among them is the ‘freedom of voters to vote in secret, free from violence and coercion’, and ‘access to secure voting stations’.
Since his appointment, Steven Friedman and his information and analysis department have been monitoring the situation closely.  Their final talks will be to produce a report that will help the commissioners make a finding on whether the election was free and fair and a reflection of the will of the people.
I rather like the ‘will of the people’ bit; it reminds me of one of those classic legal catch-all clauses that provide an escape route if all else fails.  It is a bit like ‘sufficient consensus,’ that famous methodology for reaching agreement at constitutional negotiations.  In real terms this means if the ANC and the National Party agree there was ‘sufficient consensus’, then bugger the rest.  The real reason I like ‘the will of the people’ is because, as we hurtle closer to this election, it is clear to me that there is a lot that can, and probably will, go wrong.

Under Kenyan law under the 2010 Constitution, as in effect for the last election in 2013, this issue of potential circumlocution about election shortcomings is solved: the Constitution mandates a “free and fair” minimum standard.  I have written previously that I had picked up on discussion in Washington ahead of the 2013 Kenyan election harking back to the “will of the people” hedging language used by Westerners in reference to Moi’s re-elections in the 1990’s.

I ended up in an indirect disagreement through the pages of Africa in Fact magazine with the spokesmen for the Western government-funded election observation missions (the Carter Center from the US and the EU mission) about the significance of the conspicuous absence of reference to the higher (and legally mandated) standard in their Preliminary Statements following the voting.

The titular conspiracy that the Harris memoir discloses, but does not explain in detail, is that hackers penetrated the electoral commission ICT systems and changed vote tallies in progress.  And that the fraud was discovered by the embedded IFES (International Foundation for Electoral Systems) team funded by the U.S., addressed internally within the Electoral Commission and not disclosed at the time.

The hackers were adding votes for third parties apparently not to disrupt the ANC’s win, but rather to manipulate the overall percentage seemingly to avoid letting the ANC have the parliamentary margin to change the new constitution.

The South African Electoral Commission suspended the vote tally without explaining about the infiltration of the system.  A technology work around was created but the overall control system for handling the count broke down.  Through heroic logistical efforts, intricate private political negotiations and with the grace of fortunate “communications” efforts, the election process was “saved” to the extent of being accepted as a rough approximation of the “will of the people” in the context of moving from majority rule in an electorate of 22 million from the existing system of rule determined by competition among no more than a 3 million voter privileged minority.  Close enough for “horseshoes or hand grenades” as we say.  Close enough to an actual count of each individual’s vote for a “free and fair” election? Not so much.

In South Africa in 1994 there was an understood consensus that the purpose of the first broadly democratic election was to transfer power from the minority National Party the majority ANC while containing conflict from other factions “white” and “black”.  The time allocated and resources available made a free and fair election as such wholly beyond the potential of the endeavor.

Thus the situation in South Africa in 1994 was radically different than the electoral management task presented to the Kenya’s ECK and IEBC (and IFES) in 2007 and 2013.

In 2013 Judge Kriegler was back in Kenya some and was a frequent public commentor on contentious matters involving politics and the electoral commission.  It would seem easy to argue that his approach and expectations in Kenya leaned too heavily on the very dissimilar task he faced in his electoral commission experience in South Africa.

2 thoughts on “An insider’s explanation of the difference between a “free and fair” election and a “will of the people” election–Kriegler deputy’s memoir

  1. In Africa a hard wisdom teaches that you must never go to war unless you are ready for the two possible outcomes: to come back with victory or never to come back. The democracy and governance agenda in Africa has recruited the African citizens into a war against entrenched power in Africa. From genocide against democracy advocating opposition tribes, to the murder and forced disappearance of whistle blowers against corruption, to the impoverishment of democracy advocates or jail or worse, the citizens have paid a very high price for this losing war against the ruling elite on the continent.

    For many years friend of democracy and good governance partners have started and funded high profile governance and accountability projects on the continent. Sometimes these initiatives have even been embraced by the ruling elite in Africa. One such donor driven reform effort was “the dream team” of technocrats who were to reform the civil service, deliver badly needed public services to the citizenry and value for money to the tax payer. The legacy of the dream team in Kenya has been spiralling wages and allowances paid to the top civil servants while the lower levels languish in morale busting wage scales. The high incomes (!) at the top levels of public service and the low wages of the rest have both worked to drive the levels of public corruption to levels that are now visibly wrecking the structure of the Kenyan State.

    On democracy and advocacy, the reform agenda always finally comes to negotiate with the rulers that are. And it is always at this time that the citizens who were recruited into the reform agenda get locked out of the room because they are too many to fit at the table of negotiations. When the door to that room gets opened after the negotiations are over the first pronouncements of everyone who had been in the room is always to castigate the impatience and the ignorance of the highly intricate nuances of rule and diplomacy of the great unwashed masses waiting expectantly outside the negotiation room. The next act is always for the partners in the reform agenda to board flights home and on to new postings or tenure and multi-million book deals all round. For the citizens , at best, the newly installed reform agenda means higher taxes to support new constitutional offices and office holders – at worst genocidal militias , now even more firmly entrenched in power, hunt down the enemy tribe for its old democracy agenda.

    Throughout the continent now, the cry of the citizens is a heartfelt “peace, not justice”. The drive for democratic justice through free and fair elections and transparent governance institutions has wrecked whole nations and left many African peoples facing the distinct possibility of new genocides. And the genocidaires are the ones dictating victor’s justice to the defeated and cowed African citizenry. With the high genocidal costs of prodemocracy and rule of law advocacy, the ancient wisdom gains new urgency. War (and the democracy and governance agenda is a life and death struggle for all involved) has only two outcomes: bring home the victory or never come home from the battlefield.

  2. Pingback: Kenya vote: target turns from “will of the people” to “free and fair, peaceful and credible” to “fair, orderly, credible and nonviolent” | AFRICOMMONS Blog

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