In their judgement, five judges of the court said where there are discrepancies between results in Forms 34A and 34B, the chairman should announce the results and leave the matter to the court.
The judges said Mr Chebukati has the duty to verify the results as transmitted electronically.
However, whenever he detects errors, he should notify the parties, observers and the public and leave it to the election court.
. . . .
However, the Supreme Court faulted Wafula Chebukati, who is national returning officer, of announcing the winner before comparing the results in Forms 34A and 34B.
The court stated, “There can be no logical explanation as to why in tallying the Forms 34B into Forms 34B into the Forms 34C, this primary document (Forms 34A) was completely disregarded.”
I would say that the underlying factual–if not “logical”–explanation is that Mr. Chebukati gambled on August 11, likely under great pressure, that the “Maina Kiai decision” left unappealed by the IEBC, left a loophole that could be exploited to announce a national “result” early from the purported constituency returns in spite of the knowledge that a huge number of the polling station returns had not been transmitted as required by law. This gamble did not work and Mr. Chebukati has now obtained from the Supreme Court notice to all interested parties that it still will not work going forward.
Events of the last few days are more twists, turns and wrenching associated with Kenya’s status as being stuck or frozen by the stolen election of 2007 and its aftermath, pending forward movement to truly realize a new system under the new constitution approved overwhelmingly in 2010, or back into a now-digitized/globalized version of a single party power structure based on elite-level tribal bargains.
Based on the 2013 election and Kenyan history, in the immediate run the continued retrenchment of democracy is surely likely, but we can hope otherwise. And most importantly, Kenyans can keep their eyes on the horizon and recognize that much of the work of getting Kenya (back?) to the state of democratic openness that was preceived to have existed in the early times after the defeat of KANU at the polls in 2002 will remain regardless of who is president.
And the vital task of acheiving a transparent and trustwothy, bona fide independent electoral commission must not stop with the immediate “fresh election” regardless of when it is or whatever limited progress is obtained through current NASA demands for “irreducible minimums”.
ODM and Wiper and other parties made a mistake by waiting until early 2016 to focus on forcing reforms of the Issaak Hassan “Chickengate” IEBC of the badly administered 2013 election. Even though agreement was obtained to replace the Commission with loss of life of protestors killed by police by mid-2016, the old Hassan Commission stayed in control until early this year, after budgets and plans (and some contracts apparently) were in place, assistance programs by the United States and others contracted–and apparently adjusted by demand of the incumbent ruling party.
The new Commission inherited Hassan’s staff and remains quite murky as to the extent that they are de facto independent enough to effectively manage and discipline that staff. The selection process was messy and murky and the Vice Chair of the Commission turns out not to have resigned her job with the UNDP but rather taken “leave” of undisclosed terms while serving. Are other Commissioners of uncertain independence from other players in administration of the elections? (I am not concluding that Dr. Akombe is not independent of the UNDP–just that there are unavoidable questions which neither the UNDP nor Dr. Akombe seem willing to address–nor Kenya’s media to take up.)
No incumbent president in Kenyan history has been found by Kenya’s election management body to have lost an election–certainly the opposition has always known it had an uphill battle to have real hope of winning, aside from the fact that the incumbents have strong support in their bases and were ahead by a few points in most polls as of late July. In this environment, the failure to achieve deeper reform of the old IEBC by early 2017 was probably fatal to a real chance to win all other things being equal.
The surprising and gutsy decision of the Supreme Court of Kenya to rule that the IEBC’s conduct was just too far beyond the pale to pass legal muster gave everyone another chance, but of course it did not change any hearts and minds of people who were never willing to risk of losing office at the polls in a free and fair vote.
The United States and other donors attracted a lot of published advice from its own employees and through indirectly supported sources like the International Crisis Group stressing the importance of transparency for trust building but elected instead to continue to stay the course of underwriting the ECK-IIEC-IEBC and publicly promoting its output to Kenyans without re-consideration of the risks and costs of non-transparency and undisclosed failures with the electoral management process, such as the alleged bribery in 2007 that warranted undisclosed US “visa bans” and the subsequent “Chickengate” bribes and the bogus procurements of technology that left Kenyans exposed again in 2013.
This is not rocket science. Kenyans who are increasingly divided by tribalism as their politicians offer and deliver less democracy and less other models of leadership, are more likely to accept and trust what they are openly shown and explained.
I will be prepared to more substantively address the 2017 vote/s once I get the documents I am due and expecting from my 2015 FOIA request about the 2013 election. Until then, we can still decide to do what we know can be most helpful to build trust if we want to.
Today the Carter Center Election Observation Mission released an additional report discussing briefly the findings and proceedings of the Supreme Court of Kenya in deciding the presidential election petition but primarily focused on the negotiations and preparations for the “fresh election” scheduled by the IEBC for 26 October.
There has been some public controversy and debate, as well as confusion, about the role of the UNDP in the funding and management of this years Kenyan election to a degree that was not apparent in the last two cycles. The UN is a big presence in the Nairobi and Kenyan economic and political scene, so it hardly surprising that their role in the overall outside democracy assistance program would come into scrutiny where things went badly and the election was annulled. Most recently there was an offer made by the IEBC to have the UNDP undertake ballot paper procurements, for instance, which was declined by the candidates. (I am not ready to wade into the thickets of the controversy about the fact that the most public face of the Commission itself other than the Chairman has retained her employment with UNDP in a leave status while accepting appointment from the President and taking office as an IEBC Commissioner in January and related matters,)
From an EU report at the beginning of the year:
The UNDP-led “Strengthening the Electoral Processes in Kenya Project” aims to strengthen Kenya’s electoral institutions, systems and processes in Kenya in view of the 2017 elections.
Following the EU’s support to Kenya during the 2013 elections, the EU is capitalising on the lessons learnt from that period to provide a better electoral support mechanism for future elections. The EU’s financial contribution to “Strengthening the Electoral Processes in Kenya” aims to develop stronger legal and institutional structures that will lead to transparent, credible and peaceful elections, as well as leading to more informed participation in the electoral process. In particular, we expect:
a strengthened institutional and legal framework for the electoral processes;
a strengthened participation of voters, parties and candidates in the electoral process with emphasis on women, youth and disabled
the delivery of more efficient, transparent and peaceful elections
a strengthened electoral justice and increased compliance with the electoral framework
The programme supports activities that cover the whole country. Beneficiaries of it include the Independent Electoral and Boundaries Commission (IEBC), which will be the largest recipient of the programme’s assistance. Other beneficiaries include Kenyan institutions and organisations involved in the drafting of legislation, dispute resolution between political parties, media regulation, women’s empowerment and security, including:
the Office of the Registrar of Political Parties
the Kenya Law Reform Commission
the Judiciary and Political Parties Disputes Tribunal
the Director of Public Prosecutions
the Police Service
the National Cohesion and Integration Commission
other government agencies including county governments
civil society (including women movements) and media
The EU is contributing EUR 5 million to a projected total basket fund amount of EUR 21,5 million (US$24 million). The other donors to the “Strengthening the Electoral Processes in Kenya” project are currently DFID and USAID; some other donors might also join. To date (as of January 2017) US$14.65 million has been raised. The basket fund became operational in the second half of 2015, and activities will last till the end of 2018. The implementing partner is UNDP, with support from UNWOMEN.
It is in fact very unfortunate that time has been running hard against the 60 day deadline for the “fresh election” necessitated by the failure of Kenya’s IEBC (significantly supported by the United States and, at least indirectly through the UNDP so-called “basket funding”, other donors) to conduct a lawful presidential election on August 8 as determined by the Supreme Court of Kenya.
With the passage of time things like the then-shocking torture/murder of acting IEBC ICT head on the eve of the election are no longer mentioned in such statements as today’s from the envoy group. Too long ago that murder (passing 60 days) and with no sign of progress or serious effort to solve the case we should of course “accept and move on” that it was simply an unfortunate coincidence (or at most one of those political murders that happen periodically in Kenya that are agreed to be ignored so that we don’t have to face the darker realitity of how “democracy” really works in such a pretty country). Of no relevance to the August 8 election or its rerun in the hands of the his suspened predecessor who got his job back when Msando was killed even though he had been earlier suspended as ICT director for refusing to cooperate in an audit.
Rather it is noted today that it is “too late” to replace staff hired under the removed Issack Hassan Chickengate regime or otherwise substantially reform the IEBC.
Longstanding CEO Ezra Chiloba doubled-down last week and signed (reportedly) a new (amendment??) with the controversially sole-sourced ICT vendor OT Morpho now owned by a US-based fund and a fund of the Government of France. Pretty much an “in your face” gesture toward reformers if true. [Update 4/17: The IEBC twitter feed has reported that the OT Morpho contract will be released – I gather this is confirmation of the reported new agreement but we shall see.]
Either the donors have lost all significant influence, if they had any, toward transparency and trust building at the IEBC or they are really gambling hard on selling whatever the IEBC in existing form–without meaningful reform–will offer up on October 26 and the seven days thereafter.
As for me, I think this is a bad gamble, both in terms of odds and because the known character of the other players at the table.
As an American who was involved in the 2007 fiasco from part-way inside and witnessed 2013, I would like to see my Government cease to help underwrite this IEBC as a matter of our own integrity and of our long term ability to provide some future positive influence to the future development of independent democratic institutions in Kenya.
The American dollars supporting through USAID this IEBC would be much better spent on urgent humanitarian needs (see the UNDP’s call for additional funds of more than $100M for Kenya famine relief).
It may be that NASA will throw in the towel and agree to go along to run in a “not so fresh” election without IEBC reforms. That is for NASA to decide. I just do not want my Government to interfere in that decisionmaking process unless we are willing to provide some independent assurance of transparency and support for fairness to all Kenyans (not just NASA) that the Government of Kenya cannot be expected to agree to unless we are willing to stand up to them in a way that I have not seen from us in 2007 or 2013.
Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq. This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)
We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well. Our choices have consequences, too.
We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence. If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.
You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income). Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.
In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).
Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates Continue reading →
The Supreme Court of Kenya’s long awaited reading of its full opinion on the presidential election petition this morning squarely hammered the discrepancies between the process requirements of the law and what the evidence showed happened.
The Court found explicitly, for example, that the affidavit submitted by the IEBC asserting that all of the tally papers had security features was contradicted by the documentary evidence eventually produced by the IEBC under order of the Court in the hearing.
The Judiciary website seems to have been down from before the announcement so I will have to wait to read the opinion.
The Court made clear that there would be no basis for it to uphold a similarly compromised process in a fresh election.
The ball is squarely in the “court” of the IEBC and its advocates and funders to grapple with the “contamination” and its causes to find a solution.
(On the submission of the Preliminary Statements of Election Observation Missions as evidence to bolster the defense of the IEBC, the Court said they could not be considered as they did not go beyond looking at the voting and counting at a sample of polling stations. This is good news in correcting one of the flaws from the original 2013 presidential petition litigation.)
The exit poll was publicly released by the the University of California San Diego research team at an event at CSIS in Washington only in July 2008 after the six month publicity restriction in their consulting contract with IRI. [ed. note: Remember it was then released in August by IRI.]
By that time, it mattered for “the war for history” as to whether the election had actually been stolen or not, but had no real time impact in that Kibaki’s second full term was well underway. The “Kreigler Commission” reporting to President Kibaki was staying off the question of what really happened to the presidential tally at the ECK.
Lessons for today, in time to matter?
What if vital information about what happened with the presidential tally is in the hands of people working for the donor-funded election assistance operations who wish they could provide that information and answer the vital questions?
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.
One of the most important lessons from today is how cowed Kenya’s media really is by the Government. This decision did not have to come as quite such a suprise if Kenya’s media had felt free–or been brave enough–to just cover the polling stations and constituency tally centres. But we went through this in 2007 (when results were broadcast then taken down), and 2013 when self-censorship was the order of the day.
Today, Kenya took a big step forward on the rule of law — a sign that perhaps the press can become in the future in fact as free as the Constitution provides and the West pretends.