Tag Archives: constitutional law

Are “free and fair” elections passe in Kenya?

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Uganda Debt NetworkHappy American Independence Day–it has now been a full four months since Kenya’s 2013 election, yet the results have still not been released by the Independent Electoral and Boundaries Commission.

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
corruption;
(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?

Note this from Mienke Mari Stetytler’s “Observing the observers: how the Kenyan election was verified” republished in the Daily Maverick this week:

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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Kenyan Court strikes Government’s action outlawing Mombasa Republican Council

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Judicial independence is becoming serious stuff in Kenya.  A three-judge panel of the High Court sitting in Mombasa has ruled that Kenya’s executive branch acted unconstitutionally  in “banning” the secessionist Mombasa Republican Council.  As the decision was reported in the Daily Nation:

The judges advised the group to register as a political party to pursue its agenda through legal means.

And apparently alive to the fact that Kenyans may question the rationale behind their judgment, more so in the light of the group’s secession demands, the judges pointed out that secession was a weighty matter that could not be realised through the means the group was pursuing.

“There may be Kenyans who may disenchanted with the our decision. Some would see it as an endorsement to secession and dismembering of this country.

“To them we say: Secession can only be achieved by far-reaching amendment to the constitution,” the judges ruled.

“Secession is a political agenda. MRC is certainly not a trade union, welfare society or a debating society. It has all the attributes of a political movement,” the judges noted.

“If MRC regards this decision as carte blance to disorder or lawlessness, then they are on their own. The court cannot mute the respondents from exercising their constitutionally ordained obligation of ensuring security for all Kenyans. Should MRC cross the line, then the State, as always can invoke the law including prevention of criminal activities.”

Presumably the Government will appeal, but this would seem a fairly straightforward application of the Constitution.  Advocating for secession is obviously highly controversial–in just about any country, and particularly in Kenya and especially on the Coast, with war in Somalia, a refugee crisis and the specter of an upcoming election given a history of election-related violence.  Nonetheless, it is times like these that require constitutions and the rule of law to provide boundaries within which to have these debates peacefully.

It will certainly be interesting to see how this plays out in the national and regional election campaigns.  Maybe democracy assistance programs working on “party building” can take some of them to visit Parti Québécois?

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