Kenya needs a better election review process next time . . . as respondents argue that IEBC has done “so much” that presidential election announcement should stand as good enough

So we are down to the hearing of the challenge to the presidential election involving some ten to twelve million voters in a country of over forty million. All of the voting was done by paper ballot and counting by hand. At the time of the hearing there is no list available to the petitioners or the court of who did and did not vote, nor one defined list of who was eligible as a voter.

Even with the breakdown of the intended election technology across the board, the IEBC announced a final vote count on the evening of March 8, just over three days after completion of the voting, in spite of having seven days available for the process, then formalized the result the next day, March 9.

It now comes down to one day of oral argument on each side in an adversarial proceeding between the IEBC represented by government counsel and AfriCOG and CORD for the Supreme Court to decide whether to let the IEBC pronouncement stand, or not.

There has been no administrative process or review, there has been no neutral body involved prior to the Supreme Court. The IEBC has been in an adversarial mode in defending its decision since the decision was made. The Court has determined that there is no time for detailed discovery of evidence sought by petitioners.

The Court will ultimately have to decide this case on the basis of generalities–either recognizing the standards required by the Constitution for voting were not met systemically:

Article 86:

At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple,
accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results
announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and
accurately collated and promptly announced by the
returning officer; and
(d) appropriate structures and mechanisms to eliminate
electoral malpractice are put in place, including the
safekeeping of election materials.

or, alternatively, the Court will defer to the the IEBC on the basis that its decision is unimpeachable except to the extent that it can be disproven vote by vote in detail through admissible evidence in adversarial litigation in one day.

Was Kenya’s “Election Observation Group” or ELOG intended to be truly independent of IEBC? Or was it to “build confidence”? [Update 3-30 Further on “Overselling” ELOG and ELOG’s use by Counsel for the Gov’t in Court]

By appearances, ELOG certainly looks more like part of the effort to “build confidence” in the IEBC (to “promote peace”) rather than an independent watchdog.

Which would explain the problem noted in my previous post that their Parallel Vote Tabulation results by their own numbers indicate that most likely there should be a runoff between Kenyatta and Odinga but they announced that their results “confirm” the IEBC which found otherwise.  It would also explain why they have announced “conclusions” in support of the IEBC but not released their data or even their methodology.  Ironically, USAID, which supported the Parallel Vote Tabulation, also spent a lot of money over a period of years promoting greater sophistication in the Kenyan media in expecting transparency regarding polling methodology.  Today, in Kenya, the media would not ordinarily publish polling results with the lack of transparency that has accompanied ELOG’s PVT, which is based on some sort of an undisclosed “sampling” methodology akin to that used in other polling.

“Must reads” follow:

Kenya’s Election Observation Group (ELOG) announces its Parallel Vote Tabulation (PVT) program as monitoring tool. (Daily Nation, Feb. 18, 2013)

“This (information) will be important to help remove any uncertainties by providing validation to the results given by the IEBC,” he added. . . .

“PVT will measure the votes cast and indicate whether the data should be trusted, based on information about voting and counting of the votes,” said Elog Chairman Kennedy Masime.

“This information will be specific and can be actionable for improving the process next time” he added.

But Elog was quick to warn that it would not be announcing results, a task only IEBC is mandated to perform.

While they will be tabulating results from the polling stations, the Observers said they would be in constant consultation with the Commission before releasing their verdict.

“We foresee a situation where if the elections are well managed, then there will be no fundamental differences with IEBC. But in the event that there is, then we would consult with the Commission,” Elog said in a joint statement.

USAID/Kenya–Success Stories: “Giving Fresh Credibility to Kenya’s Electoral System” (Feb. 8, 2013)

The Independent Electoral and Boundaries Commission registered 14.3 million voters using the biometric voter registration technology system. Biometric data captured during the registration is  is being  linked with electronic voter identifiers (electronic poll books)  while text data is being used  for real time electronic result transmission and display systems. The United States Agency for International Development (USAID) invested over $ 6 million USD in the two systems, through United Nations Development Programme (UNDP) and International Foundation for Electoral Systems (IFES). According to analyses, two of the most significant factors attributed to the failure of the 2007 election were the inability of the Electoral Commission of Kenya to compile a credible voter register, and the lack of an efficient results reporting system.

USAID has partnered with Civil Society Organizations  to ensure the effective use of the biometric voter registration technology in the upcoming 2013 presidential elections, to prevent fraud and reduce the likelihood of violence. . . .

Too bad the voter register was not finalized and published as required by law and the technology tools never fully designed and for the most part not implemented “on the ground” in the actual election.  A robust independent monitoring organization would, one would think, have more to say about that but, if these efforts were already a “success story” before the voting for bringing “fresh credibility” it becomes awkward . . .

USAID/Kenya–Success Stories: Parallel Vote Tabulation Restores Confidence in Kenyan Voters (Dec. 14, 2010):

The PVT – as acknowledged by the IIEC Chairman Ahmed Issack Hassan – was crucial in verifying the legitimacy of the referendum process as a whole and in restoring public confidence in the electoral process in Kenya.

Again, the overriding goal, achieving “success story” status, is to give the Kenyan public “confidence”.

 UPDATE:

An example of how the PVT has been oversold is a quote from the CapitalFM story covering the ELOG announcement on Saturday March 9 under the headline “Yes, Uhuru won–parallel vote tally shows”:  
 

“Thus the PVT can confidently verify that the official results for each candidate are accurate,” the group’s chairman, Kennedy Masime, said on Saturday afternoon.”

 
This is the basic point–the PVT result of 49.7 cannot “confidently verify” that Uhuru got 50%+1 at all.
 
Such statements then got translated further into statements like this from Ken Opalo in an interview in The Atlantic:

I don’t think the system meltdown affected the eventual result – a Parallel Vote Tabulation done by Elections Observation Group confirmed IEBC’s findings – but it raised concerns over IEBC’s vulnerability to manipulation. (emphasis added)

If ELOG does not wish to be a party to this, they can dial it back and have had more than two three weeks to do so; and more than two three weeks to release the details of their methodology and how it was executed as reputable polling firms are expected to do these days in Kenya.
Ultimately, ELOG’s initial statement was cited by respondents in the Supreme Court as evidence to uphold the IEBC’s decision to avoid a runoff even though ELOG had declined to be transparent and neutral by withholding its methodology and data.  Given the nature of the proceedings, there was no time in Court for either AfriCOG or CORD to probe or rebut the purported evidence from the Goverment.

To avoid confusion about the Kenyan ELOG “Parallel Vote Tabulation” . . .

Quote

Freeandfair Kenya on March 11, 2013 at 11:14 am said:

The most publicly available check on the elections — the Parallel Vote Tabulation done by ELOG did everyone a disservice by saying their results were “consistent” with the IEBC’s. This makes it sound as if it supported the IEBC’s count. It does nothing of the kind. See http://www.ndi.org/files/Kenya-ELOG-PVT-statement-030913.pdf. Not only do they find that Uhuru received 49.7% of the vote, they have a margin of error of 2.7%. This means that MOST of their prediction is for a RUNOFF. A tragic, incorrect, and unprofessional use of terms.

This was a comment in response to my post “Overall Observation on the Observations”–this is important and apparently there has been some confusion.