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.

“We are aware that over two million dead people voted in 2007” says US Undersecretary Otero in Nairobi

Lead from the Standard (and today’s most read on-line story):

A US official revisited the controversial 2007 presidential election when she said her country was aware two million dead voters were not weeded from the electoral register as pressure on reforms mounted.  US Undersecretary for Democracy and Global Affairs Maria Otero said America is aware that there were over two million dead voters whose names remained in the register and voted in 2007.   “We are aware that over two million people voted in 2007, so we will support the process of compiling a new voter register. At a time the whole world is watching Kenya, we want to be there with our support,” Ms Otero said.   She spoke on Thursday during a meeting with Prime Minister Raila Odinga in Nairobi where she affirmed the US pledge to fund the reform agenda, including new voter registration by the Interim Independent Electoral Commission.  Otero, who was accompanied by US Ambassador Michael Ranneberger, said America will support the IIEC with the ambassador saying they are putting together “a couple of millions of dollars” for IIEC.

One of the devilish inconsistencies here, of course, is reflected in what the State Department’s Africa Bureau had to say about the 2007 election in a new edition of its “Background Notes” for Kenya issued January 10: “On December 27, 2007, Kenya held presidential, parliamentary, and local government elections. While the parliamentary and local government elections were largely credible, the presidential election was seriously flawed, with irregularities in the vote tabulation process as well as turnout in excess of 100% in some constituencies.” The problem of course is that 2 million dead people didn’t vote for President alone–they also voted for Members of Parliament. The Standard article ties Otero’s remarks to the report of the Kreigler Commission, which noted large numbers of dead voters on the roles, among many systemic failures and basically found the whole process deeply questionable (while declining to excercise its mandate to investigate the presidential voting and tallying specifically–citing lack of time and resources as well as lack of feasibility–not so surprising perhaps from a Commission reporting to the Kenyan President, which met privately with the President before reporting, and that was funded by at least one donor who was not supportive of that mandate). You really can’t have this both ways. If the major problem with the 2007 elections was systemic then you cannot plausibly act like there isn’t a problem about who did and didn’t end up in Parliament vis a vis how actual live Kenyans voted or intended to vote.

This matters a lot right now when you have the Constitutional Review process seemingly taken over by a Parliamentary Commission. My personal opinion is that both sets of election problems are fully real: the presence of dead voters and all the other across-the-board systemic failures identified by the Kreigler Commission are substantiated; likewise, the observations and allegations of specific misconduct in the presidential race asserted by civil society and international observers and diplomats are also real. Thus, we do not have a legitimate democratic government in Kenya and the notion that the present coalition of convenience could effectively govern the country for a full five year term and actually deliver major reforms is wishful thinking.

In the meantime, the British High Commissioner warned of the potential for 2012 poll violence.