Kenya vote: target turns from “will of the people” to “free and fair, peaceful and credible” to “fair, orderly, credible and nonviolent”

Old KANU Office

Solo 7–Kibera

In the 2013 Kenyan election John Kerry was the American Secretary of State, speaking to Kenya’s elections that year in his role as lead American diplomat.  The U.S. provided key funding as well as embedded technical support for the IEBC in that election, including funding for the failed procurement of an electronic results transmission system.

It was suggested that the election, in spite of a certain disarray and incomplete results, reflected “the will” of Kenyan voters–and was subsequently upheld by Kenya’s Supreme Court (with preliminary observer statements from the Carter Center and EU as evidence offered by the IEBC in litigating against the challenges).

Likewise as Secretary of State Kerry addressed Kenya’s 2017 elections during his official visits in 2015 and 2016.  The second quote above, “free and fair, peaceful and credible”, comes from Secretary Kerry in Kenya last year.  The new terminology for the 2017 vote, “fair, orderly, credible and nonviolent”, comes now from former Secretary Kerry, wearing a new hat as co-leader of the independent International Election Observation Mission being conducted by the U.S. based NGO, The Carter Center. (See Daily Nation 14 July “Ex-Secretary of State insists on fair election“)

Over the years I have written and noted the potential distinctions involved in the decision of international observers to suggest that a particular election “reflected” or corresponded to a standard labeled “the will of the people” on one hand, and on the other to label an election “free and fair.”

An overview and “gateway” is my post “An insider’s explanation of the difference between a ‘free and fair’ election and a ‘will of the people’ election — Kriegler deputy’s memoir“.   The issue is discussed in relation to the internationally supported South African election of 1994 discussed in the recent memoir referred, and on into 2007 and 2013 in Kenya, with Kreigler and IFES re-engaged in a different context.

See especially my post “Are free and fair elections passe in Kenya?“.

The most important point for Kenyans is that the 2010 Constitution adopts explicitly as law a “free and fair” standard.  Peace, order and nonviolence are good and important societal goals.  Many of us are skeptical that tolerating corruption or other substandard conduct in administration of elections is somehow a useful tool to serve peace, order or nonviolence (just as war, disorder and violence do not clean up the election process).

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

Air Show

 

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.