Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.
Discussing Kenyan elections can get tense, even among friends who are not Kenyans and try to be relatively dispassionately analytical. I have copied here one of my emails from an ongoing exchange in late August during the pendency of the Presidential Petition in the Supreme Court. My friend with whom I was corresponding is a Westerner who knows far more about Kenya (and lots of other relevant things) than I do and is someone I greatly respect (he is also a layman as far the legal profession goes). My friend was much more sanguine than I about the IEBC’s implementation and use of the KIEMS Results Transmission System, both in terms of facts and law. This explains how I saw things (and still do):
Uploading an alleged Form 34A offline after the election and reporting of results reflects a failure of the use of the RTS by its terms as consistently represented by IEBC and IFES until well after the election.
It is simply not the same thing at all in my opinion.
Even ELOGs sample in their PVT found 13.5% of Polling Stations did not publicly post Form 34A. If it wasn’t scanned and transmitted in real time, or at least scanned with delayed transmission upon being moved into a coverage area contemporaneously, and it also wasn’t publicly posted, then it cannot credibly treated as if it was reliable without explanation and evidence.
Your figure of 29,000 and the IEBC tweet claiming all but just over 1000 leaves a huge gap in a very short time period. (Further, I understand you to refer to some “backlog in uploading them” which apparently refers to something other than KIEMS transmission, so I am not sure at all that I am really understanding your argument.)
I also disagree with your characterization of “clear rules” of Kenyan election law implementing the Maina Kiai court decision against the IEBC. IFES advised to the contrary in their last pre-election publication on the process that I am aware of, the July 20 FAQ that also explained how KIEMS was to work.
People may have gambled that Chebukati could use the Court of Appeals ruling to announce on day 3 of 7 “final results” from most but not all alleged Form 34Bs without the 34As having been demonstrably transmitted to the Constituencies to generate the Form 34Bs. This tactic might very well win the Supreme Court of Kenya, legitimately or illegitimately, but I don’t find it persuasive myself, nor do I find that provides any justification for the assertive lack of basic transparency.
Kenyan lawyer Nelson Havi’s piece in The Elephant from about the same time gives a good summary of the issues in the Presidential Petition and the Petitiiners basic case: “KENYA ON TRIAL: Truth, Justice and the Supreme Court.”
Democracy International (DI) organized a comprehensive international observation mission for the constitutional referendum in Egypt on January 14 and 15, 2014. Although the actual administration of the process on the referendum days appeared to allow those citizens who participated to express their will, DI concluded that the restrictive political climate in Egypt impaired the referendum process. The referendum took place against a backdrop of arrests and detention of dissenting voices. There was no real opportunity for those opposed to the government’s “roadmap” or the proposed constitution to dissent. This constrained campaign environment made a robust debate on the substance and merits of the constitution impossible.
EU Foreign Minister Catherine Ashton announced today that the EU would be observing the presidential election scheduled for May 26-27. See the Project on Middle East Democracy Egypt Daily Digest. This may make it more difficult for any decision not to mount a full American observation under USAID, but it strikes me as premature to commit to observing without seeing some progress on the types of concerns that are identified in the Democracy International report on the campaign environment back in January. The ability to “witness” on the ground and report accurately on the environment has value but in a presidential election under the circumstances there is risk of being seen as inadvertently giving legitimacy if there is not a bona fide effort by the existing authorities to allow a real competition.
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.
. . . .
Acting Registrar of Political Parties Lucy Ndung’u has been summoned by the National Assembly Committee on Justice and Legal Affairs. The committee wants to find out why she is holding two offices, the management of party affairs and budget allocation.
As the acting registrar, Ndung’u is yet to take the oath of office because her term expired with the coming into force of the Political Parties Act in late 2011. . . .
. . . .
Chepkonga also wondered how the registrar will distribute parties’ funds when the IEBC had not computed the March 4 election results. In the financial year 2013/14, the office of registrar of political parties has been allocated Sh344,650,758 by the National Treasury. But the House will have the final say in approving the expenditure.
The Act provides that ninety five per cent of this fund be shared proportionately by reference to the total number of votes secured by each political party in the preceding general election. Five per cent is left for administration purposes.
In effecting the 95 percent, the total number of votes secured by a political party shall be computed by adding the total number of votes obtained in the preceding general election by a political party in the election for the President, MPs, County Governors and members of county assemblies.
“These are some of the things we will be seeking explanations a committee. The management of public finances must be open,” Chepkonga said. William Cheptumo (Baringo North), who is also a member of the legal committee, said parties want to know the number of votes they got.
“Am also wondering why they have taken too long to compile the number of votes per political party,” he said. Ndungu is also said to be interested in retaining her position as the registrar once a new process has been initiated.
Ndungu is also said to be interested in reapplying for the job once a new process has been initiated. However, a number of MPs vowed to ensure that she doesn’t get the job. “She has been the stumbling block to party discipline in the country. We will ensure the motion is defeated,” an MP who declined to be mentioned said.
Here is yesterday’s story in the Standard in which Ms. Ndung’u is interviewed: “Political parties pay day here as Treasury opens purse”.
In the meantime, IFES has announced it is hosting IEBC Chairman Issac Hassan in Washington on June 12 for a discussion about “lessons learned” from the election and the EU Election Observation Mission released its Final Report.
- Kenya’s IEBC dangles “kitu kidogo” for political parties to avoid publishing election results (africommons.com)
- EU poll report raises concern over voter list (capitalfm.co.ke)
- It’s mid-May, do you know where your election results are? (africommons.com)
This is a quote from an e-mail I sent to an expert back in the U.S. on my way home from Kenya, where I am now. As far as a candid summary of what I think happened in the Kenya elections:
Overall situation with observers was that they were extremely reticent to say anything of substance because of the fear of violence and the fact that IEBC process was ongoing. Further, because of Jubilee attacks on the British High Commission and the West more generally (in my opinion at least) there was an extra level of reticence to say anything that would confront the Government of Kenya election process. We ended up with little impact, if not window dressing, as far as I can see. Someday they will write final reports that might, I hope, involve a deeper look into the original vote count and subsequent events, as well as the prior problems that led to a small voter registration pool, etc.
See Robyn Dixon’s piece in the Los Angeles Times , “Kenya election over, dispute over outcome heads to Supreme Court”::
The narrow margin and repeated failures of the election commission raise the possibility that the Supreme Court could call for an audit of the election result, analysts said.
Kenyatta got 50.07% of the vote, crossing the line with a margin of some 8,000 votes out of more than 12 million cast.
Despite the failures, Kenya’s news media were muted in their reportage of the commission problems. Even international observers have tip-toed around the subject.
However, respected Kenyan anti-corruption crusader John Githongo called the election a failure Sunday. Githongo, an election monitor, said for months a group of community organizations had tried in vain to warn the election commission of problems in its systems and approach.
“In my personal opinion, it’s a failed election,” Githongo said in an interview with The Times. “I think the IEBC performance was catastrophic. I was part of a group of organizations that repeatedly warned them that these problems were there and on the way.”
Commission Chairman Issack Hassan denied the problems and failed to turn up for meetings with the organizations, according to Githongo.
Githongo said Kenyans were so keen to avoid a repeat of the violence that followed the disputed 2007 poll that many, especially in the Kenyan media, kept silent about the obvious problems in the election commission.
. . . .
Githongo’s criticisms come after reports that Safaricom, the mobile phone provider involved in the electronic system that was supposed to transmit results to the central tallying point, also warned the commission of looming failures in the weeks before the election, and was also ignored.
Patrick Smith, editor of the journal Africa Confidential, said Western officials privately condemned the commission’s appalling performance but said nothing publicly “for fear of being seen as interfering in the election”.
. . . .
Yet again, we have a major list of political appointments from President Kibaki announced, apparently unilaterally, with Prime Minister Odinga objecting that he was not consulted. In this case “county administrators” for the 47 counties — new units of government under the new Constitution. The President’s office identifies the job description of these new officials as, among other things, coordinating security, presumably including the upcoming elections when the first county governors are to be elected:
Prime Minister Raila Odinga has rejected President Kibaki’s appointment of 47 county commissioners, saying he was not consulted.
He also wondered what their job would be since the Constitution says it’s governors who will be running counties.
The Commission on the Implementation of the Constitution (CIC) said the appointments should be done afresh because the President did not follow the spirit of the law in making them.
Five Orange Democratic Movement Cabinet ministers have also opposed the selection, many arguing that they were not fair to all tribes.
On Sunday, Mr Odinga’s spokesman, Mr Dennis Onyango, said: “The PM says he was not consulted. He also does not understand what their specific roles are because the Constitution says that governors will be in charge of the counties. He feels their appointment is a recipe for chaos in the counties,” Mr Onyango stated.
While making the appointments on Friday, State House explained that they were in line with Section 17 of the Sixth Schedule of the Constitution.
The sections says: “Within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under this Constitution.”
The county commissioners will coordinate security, national government functions and delivery of services, according to the announcement from the President Press Service (PPS).
. . . .
President Kibaki has now come out more personally in advance of ICC pre-trial proceedings scheduled next month in the Hague to try another “Hail Mary” to get the post-election violence cases from the last election pulled away from the ICC by constituting a new international crime jurisdiction in a fledgling East African regional court that has no such authority now.
. . . .
Going by the behaviour of our politicians as they swing into the campaigns, our new Constitution has already failed us. The idea was that diminishing executive powers, restoring separation of powers and instituting devolution would lessen the intensity of the scramble for the presidency. Well it hasn’t. It is still do-or-die.
Democracy everywhere is an ideal, rather than a reality. And devolution has done nothing yet other than take the battle for the executive spoils of devolution down to the community level all across the country. And create a new battle, for retention of executive spoils, at the centre.
It is hard not to be pessimistic. But it is vital to not get hot and bothered about the electoral farce; we need instead to work to ensure the fallout every five years is not of the 2007 and 2008 variety. This is where the intentions and plans of our security services matter. And this is where the love-hate relationships between all the would-be pilots matter as well. How they group in formation is critical. It tells us who’s in and who’s out — and who among us is likely to be targeted this time round.
In this sense, all the movements away from ODM could, potentially, be worrying. If Raila Odinga is painted as the “enemy” and that portrait extends to his entire ethnicity, we know where to look for the fire next time. We are meant to have an early warning system now. Is it working?
Meanwhile, in Uganda, hope for a “deeper” democracy continue to become more distant in the short run at least, but the Ugandan military continues to grow into a role as a regional force for multinational missions:
KAKOLA, Uganda — The heart of the Obama administration’s strategy for fighting al-Qaeda militants in Somalia can be found next to a cow pasture here, a thousand miles from the front lines.
Under the gaze of American instructors, gangly Ugandan recruits are taught to carry rifles, dodge roadside bombs and avoid shooting one another by accident. In one obstacle course dubbed “Little Mogadishu,” the Ugandans learn the basics of urban warfare as they patrol a mock city block of tumble-down buildings and rusty shipping containers designed to resemble the battered and dangerous Somali capital. . . .
IBANDA, 14 May 2012 (IRIN) – Over 600 Somali troops completed six months of military training in southwestern Uganda on 10 May and are heading home to boost the forces fighting Al Shabab.
Col Winston Byaruhanga, head of Bihanga military training school in Ibanda District, told IRIN the 603 soldiers who trained alongside 248 Ugandans will help bring peace and stability to the country.
“These soldiers will significantly reinforce the Transitional Federal Government (TFG) and contribute to more stable conditions to deliver aid and bring the country on the way to development,” Byaruhanga told IRIN. . . .
“Congo Opposition Rejects Early Poll Results,” Financial Times [It is a bad sign that “the money quote” is anonymous]:
. . . .
According to the latest partial results, Mr Kabila is winning most support from the mining-rich Katanga province, his stronghold. Some observers have questioned the use of an unaudited voter registration system, which allotted Katanga 4.6m voters, 50 per cent more than the capital Kinshasa, home to 10m people.
A UN Security Council meeting last week noted some electoral irregularities but pressed for a peaceful conclusion to the polls.
“There is no [international] appetite to press for transparency, but just pushing to accept whatever result [the poll commission] comes up with is not going to bring peace,” one Congo expert told the FT. “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”
Joshua Marks, of the National Endowment for Democracy, a US-funded foundation, said: “The Security Council wants to avoid violence at all costs. He added: “It’s patronising to the Congolese people. . . You’re still going to have these unresolved grievances in the country and an ever larger number of people against the Kabila regime.”
Despite mineral wealth in copper, gold and diamonds, Congo has slipped to the bottom of global development rankings under Mr Kabila’s latest term, as the country recovers from the 1998-2003 war in which an estimated 5m people died. A clutch of rebel militias still hold sway in the east.
A real election requires credible preparation by a credible election commission and credible dispute resolution mechanisms. The DRC election has already gone this far (past the actual voting) without the “international community” blowing the whistle. The Carter Center and the EU observation missions have made clear that there are serious issues with the preparation and execution of the election by the government. The actors who have supported the process to date need to stay engaged and stay committed as the process continues.
Congolese voters need hope that it makes some difference who they voted for, just like voters anywhere are entitled to expect. A pretense that the voters cannot believe in can be expected to drive violence.
Wednesday morning the Ugandan opposition/protest leader is due to land at Uganda’s international airport at Entebbe. The Museveni government is giving signs of that much less tolerance on the basis of Museveni’s swearing in as his rule extends for another term in its 25th year. Human Rights Watch has issued a report that is sharply critical of the government over violence against protestors, while the EU Election Observation Mission issued their Final Report on the February election on May 6 with a press release that seems more to address the current Walk to Work situation–and in a way that contrasts with the Human Rights Watch criticism–than the actual election. See quotes below.
One obvious question at this point is why the U.S. doesn’t seem to have more ability to influence the Ugandan military in a more professional direction.
At least nine unarmed Ugandans were shot dead – many of them in the back – by government security agents in the recent walk-to-work protests despite not being involved in rioting, a new report says. In a report issued yesterday, Human Rights Watch (HRW) called for a “prompt, independent, and thorough investigation” into the use of lethal force by security forces to counter the protests against the rising cost of living.
“Uganda’s security forces met the recent protests with live fire that killed peaceful demonstrators and even bystanders,” said Maria Burnett, senior Africa researcher at Human Rights Watch. Supporting the need for an investigation, she added: “For far too long Uganda’s government has allowed a climate of impunity for serious abuses by the police and military.” Police spokesperson Judith Nabakooba said the Professional Standards Unit and the Special Investigation Unit (SIU) were investigating all the shooting incidents. “Once there reports have been compiled, the police will be in position to avail details,” she told Daily Monitor last evening. She added that the Masaka shooting suspect was still in custody. “He will be arraigned in court any time from now,” she said, but declined to comment where the force would welcome an independent investigation team from the African Union and the United Nations.
The HRW report was released a few hours before women in civil society organisations marched peacefully and uneventfully through Kampala to protest against the security agencies’ brutal response to the protests that started last month. The women’s march followed a three-day strike by lawyers against the government’s response, which they said infringed on the rule of law and the independence of the judiciary.
The EU EOM drew up its Final Report independent of any European Union institution. However, it will now fall to the EU’s permanent representation in Uganda to follow up on the issues it raises.
Ambassador Ridolfi said: “The question of the legitimacy of the outcome of the election should not now be under question. Moving forward, what is important is that the government, political parties and civil society establish a peaceful and conducive dialogue inside and outside the parliament. “The European union is concerned about respect for the right to peaceful demonstration, as freedom of speech and assembly are fundamental pillars of any democracy. We call on the protesters to respect the law and conduct themselves in a peaceful manner. The police should act always in a proportionate and impartial fashion.” Dr Ridolfi added: “On this, the EU is ready to engage positively with political dialogue and development actions.”
The EU EOM was invited by the Government of Uganda and the Uganda Electoral Commission to observe the entire electoral process. Around 120 observers were deployed to the country’s 112 electoral districts.
The EU EOM operates in accordance with the “Declaration of Principles for International Election Observation” adopted by a number of international bodies involved in election
observation at the United Nations in New York in 2005.
Why 300 million more people are suddenly poor, by Jina Moore at the Christian Science Monitor:
Kigali, Rwanda In November, 300 million more people around the world were suddenly poor – on paper, at least. The latest numbers on poverty from the United Nations, released Nov. 4, include a new measurement for poverty and reveal some surprises.
The Multidimensional Poverty Index (MPI) raises the number of poor by 21 percent, to more than 1.7 billion. According to the MPI, sub-Saharan Africa is still home to the greatest proportion of the world’s poor, but more than half of the total number of poor lives in South Asia.
These numbers, and the new index that produced them, are part of the UN’s annual Human Development Index (HDI), a statistical touchstone. It covers everything from the number of women who die in childbirth to how many people have Internet access and can sway decisions on US policy, influence where nonprofits spend money, and help determine where donors give.
For years, the HDI has set the standard for just how little a person has to live on to be considered poor. The answer? $1.25. But some researchers have long said income alone doesn’t define poverty.
“There are some things money can’t buy,” says Sabina Alkire, cocreator of the index and director of the Oxford Poverty and Human Development Initiative, which launched the index in collaboration with the UN. “It might not buy electricity; it might not buy a public health system, or an education system.”
Ms. Alkire’s index looks at poverty more experientially. It uses existing survey data and categorizes households as poor if they lack three or more of the 10 poverty indicators, which are spread across health, education, and basic standards of living. “For the first time ever, it measures poverty by looking at the disadvantages poor people experience at the same time,” she says.
Examining more than income changes the equation. It doubles the poor in Ethiopia, where 39 percent of people live on less than $1.25 a day. But 90 percent are “multidimensionally poor,” or lacking at least three of the 10 indicators.
. . . .
Some specialists have raised objections to the new index, including the director of research at the World Bank, which publishes its own income measure for poverty. Among the criticisms is that the measure is still a single standard, even if it looks at many factors.
“If my bosses were to ask for my recommendation on using the MPI as a factor in allocating USAID resources among countries or programs, I would recommend against doing so,” says Don Stillers, an economist for the US Agency for International Development, in an e-mail message. “Rather, I would emphasize the ongoing need to pay attention to evidence on each major dimension of poverty in each country we work in.”
. . . .
Indeed, Alkire of HDI admits her index isn’t perfect. She acknowledges that good data are hard to come by, and not all types of data that researchers want even exist. “These are messy numbers, and comparisons are fraught with danger,” she says. But she also thinks her approach gives existing information more context and helps correct misperceptions.
This seems to me to represent incremental progress in understanding actual living conditions at the type of “overview” level that inevitably influences political decisionmaking and overall public awareness. While the USAID economist is right about the need to look at specifics country-by-country, comparisons are necessary and inevitable. The Ethiopia example seems especially useful in evaluating the performance of the Meles regime which claims credit for a significant level of “growth” and seems to use that as political capital with donors to excuse or divert attention from political repression.
Speaking of Ethiopian governance, Meles has attacked the EU Election Observation Mission for its report issued this week on the May election, which he called “trash“. Thijs Berman, the Chief Observer, responded as reported by VOA:
“If we say 27 percent of the results in the cases we observed had changed between the polling station and the final aggregation, then this is something that warrants a serious investigation about what went wrong and is this something that can be corroborated by other investigations in the rest of the country,” Berman adds.
Tensions about the EU mission have been building, even before the election. The government had laid down strict rules for conduct of the observers, arguing that a previous EU mission observing the disputed 2005 election had violated its mandate. The government has also criticized the long delay between the May 23 election and the release of the final mission report.
But Berman tells VOA the report was ready months ago. He says the release was delayed and the report eventually released in Brussels after it became clear he would not be allowed to present it officially to Prime Minister Meles. “In more than 80 missions in more than 50 countries, it has never happened that the inviting government refuses the presentation of the final report before the first, who are entitled to get this information, namely the Ethiopian citizens. Which is bad for the long-term future of Ethiopia because real stability can only be brought about by improving the democracy in Ethiopia,” he said.