As noted in my last post, Kenya’s outgoing President, Uhuru Kenyatta, has initiated his process of of appointing new Commissioners to fill longstanding vacancies in most of the seats on Kenya’s Independent Electoral and Boundary Commission. How independent will the Commission be in conducting the expected Building Bridges Initiative constitutional referendum and the 2022 general election?

While I have my own expectations based on my experience from 2007 and 2013 and my investigation and research regarding those two elections, along with watching events of 2016 and 2017 and since, the purpose of this post is to highlight an academic paper on this very subject published in London by the Westminster Foundation for Democracy with funding from Her Majesty’s Government. Nic Cheeseman, renowned Professor of Democracy and “friend of the blog” and Jorgen Elklit, Professor Emeritus at Aarhus University are the authors: “Understanding and Assessing Electoral Commission Independence: a New Framework“.

Take time to read the whole thing, which proposes a systematic way to study and grapple with the question in any country–“eleven criteria through which to evaluate electoral commission independence, grouped into three main categories of autonomy: a) institutional and leadership; b) functional and decision-making; and c) financial and budgetary. For each criteria, a battery of questions is provided to enable readers to qualitatively evaluate whether the degree of independence in each case is: ‘highly satisfactory’, ‘fairly satisfactory’ or ‘not satisfactory’.” But in particular, the authors have chosen Kenya 2017 as one of the three case studies to cover in depth:

Case 1: Separating fact from fiction in Kenya 2017

The Kenyan general election of 2017 provides a compelling example of the difficulty of proving the independence (or otherwise) of electoral commissions. The Kenyan electoral commission is formally independent as indicated by its name, the Independent Electoral and Boundaries Commission (IEBC). It was created by a provision of the 2010 constitution, following the dissolution of the Electoral Commission of Kenya (ECK), which had been heavily criticised for mishandling the 2007 general elections. The Commission is made up of seven commissioners, one of who is designated to be the Chair. Although the Commission is appointed by the President, there are a number of positive indicators of formal independence. Most notably, the Commission was created by a provision in the 2010 constitution and the Independent Electoral and Boundaries Commission Act; the list of commissioners selected by the president must be confirmed by parliament; and, none of the commissioners may be a current member of a political party, implying a degree of insulation from partisan ties. . . .

. . . .

By the end of 2017, it was therefore clear that the electoral commission was not fully independent, that partisan pressure was undermining reform efforts, and that the murder of Mr Msando has generated a great deal of fear and concern for electoral officials at multiple levels. However, it was not clear exactly how far the IEBC’s independence had been compromised, or exactly what the consequences of this had been. The Supreme Court’s nullification of the first election suggests that the problems within the IEBC were substantial, and encouraged the widespread perception that the Commission had been biased in favour of the ruling party. Given a history of controversial elections and of alleged partisan bias it is natural to assume that the independence of the Commission had been fundamentally violated. But it remains possible that these errors resulted from weak governance and capacity rather than a deliberate attempt to rig the election in favour of one side or another because a parallel vote tabulation by domestic observers was in line with the official outcome. The Kenyan case therefore demonstrates how difficult it can be to prove a lack of independence beyond reasonable doubt, even when major questions are raised about the quality of an election.

While Kenya’s IEBC is clearly not a ‘highly independent’ electoral commission, it is harder to say exactly where it belongs. The reports of electoral observers would suggest ‘moderately independent’ but the evidence from dissident commissioners and some civil society groups would say ‘not independent’ at all. A fair evaluation would place it somewhere in between, probably falling on the ‘not independent’ side.