New court ruling may reshape power over Kenya’s votes

Kenya challenged vote

Kenya election ballot

A Kenya High Court ruling has determined that the presidential election votes–which are counted only at each polling station–are to be treated as final when announced at the initial parliamentary constituency tally centre.  This means that any changes to the tally at the national level in Nairobi by the IEBC, the electoral management body, will have to come in the form of a court challenge.

This approach would have prevented the ECK and IEBC from taking the approach of 2007 and 2013, where national results relied on changed and missing vote counts.

The key thing to remember about Kenyan elections is that the votes are all hand marking of paper ballots, which are counted only at each polling station.  The results are recorded on Form 34 and–if law is followed–posted for the public on the door to the polling station.

The ballots and another exected copy of the results are sealed in the ballot box.

After that, it is all a power struggle and smoke and fog–high tech and low tech.  Arithmetic is done or not done in accordance with power and interests.

The court appears to have moved some power back toward the voters and away from central government.  We shall see.

I will follow up after I’ve read the opinion and caught up on some of the “moving pieces” on the election preparation.

Congratulations to Maina Kiai and his colleagues who brought the constitutional challenge.

Carter Center quietly publishes strikingly critical Final Report from Kenya Election Observation

Another reversal on a Kenya election observation? Without additional fanfare that I have picked up on, the Carter Center published on the web on October 16th their Final Report on the Election Observation Mission for Kenya’s March 4 elections.

I admit to being pleasantly surprised upon wading through the details to find much more direct acknowledgment of the shortcomings of the process, especially the tallying and reporting of results, than I would have expected from the previous media reporting on the various communications about this observation mission over the months since the vote, as well as a major change in conclusions.

Read it for yourself if you are interested in Kenyan elections and the extent to which the announced presidential result in this most recent election was or wasn’t reliable, but the bottom line here is that the Carter Center has commendably stepped back from their previous assurance from April 4, a month after the election, that “in spite of serious shortcomings” the IEBC’s improvised paper-based tally process “presented enough guarantees to preserve the expression of the will of the Kenyan voters”.  In the Final Report the tally/tabulation process is discussed in Pages 51-58, concluding in summary, “Overall, Kenya partially fulfilled its obligations to ensure that the will of the people, as expressed through the ballot box, is accurately recorded and communicated.” (p. 57).

The report itemizes and discusses five categories of “Challenges in Tabulation”:

I.  Failure of Electronic Transmission of Provisional Results

II. Inadequate Publication of Tabulation Procedures

. . . .

Therefore, the available instructions appeared to be insufficient to guarantee the integrity and accuracy of numerical tabulation. . . . (p. 54)

III. Inadequate Observer and Election Agent Access to National Tally Center

. . . .

However, the national tally center did not provide enough transparency for observers or party agents to assess the overall integrity of tally of presidential results.  Unfortunately, the Center regrets the IEBC decision to confine party agents and observers to the gallery of the national tally center, making effective and meaningful observation impossible.

The Center observed many of the same kind of discrepancies in the tally procedures that had generated so much criticism and speculation in 2007; results announced at the national tally center differed from those announced at constituency level, missing tally forms, inconsistencies between presidential and parliamentary tallies, instances of more votes than registered voters, discrepancies between turnouts of the presidential and parliamentary elections, and expulsion of party agents from the tally space at the national tally center.

. . . . (p. 54, footnotes omitted)

IV. Discrepancies Between the Published Voter Register and Announced Results

The Center’s examination of reported final results for the presidential election, recorded on form 36, showed noteworthy discrepancies. . . .  (p. 55)

V. Nonpublication of Detailed Election Results

One of Kenya’s core obligations concerns promoting transparency in elections and other public processes. . . . The Center remains concerned that the IEBC has not published detailed official results disaggregated at the polling station level. (p.55)

For more information on the Kenya election vote count, although not cited by the Carter Center, please see the audit performed by the Mars Group Kenya, noting the “missing” status of the Form 34s recording the tallies from each of 2,627 polling streams.

See Africa Confidential: “Carter’s quiet doubts“.

Previously:

*Are “free and fair” elections passé in Kenya?

*Carter Center calls it as they see it in the DRC

*Why would we trust the Kenyan IEBC vote tally when they engaged in fraudulent procurement practices for key technology?

Expanded: Didn’t we learn from the disaster in 2007? Kenya does not need to be anyone’s “model” anything; it does need truth in its election

U.S. Secretary of State Hillary Rodham Clinton...

U.S. Secretary of State Hillary Rodham Clinton (center) walks with Kenyan Minister of Agriculture William Ruto (left) and Kenyan environmental and political activist Wangari Maathai (right) during a tour of the Kenyan Agricultural Research Institute (KARI) near Nairobi, Kenya August 5, 2009. (State Department Photo) (Photo credit: Wikipedia)

One could get a certain sense of deja vu from Secretary of State Hillary Clinton’s remarks in Nairobi this weekend about next year’s Kenya election.  The theme, that Kenya has the opportunity to be a “model” for other countries in Africa in how it conducts it’s election is the same one that Ambassador Ranneberger was expressing for the State Department in the Bush Administration in 2007.

Realistically we all know that the Kenya election will not be a model.   Kenya’s incumbent government took too long to pay off and disband the old ECK after the 2007 debacle (while covering up what actually happened at the ECK).  And too long to pass a new constitution as promised by both sides in the 2007 campaign and to then create the new IEBC and too long to address enabling legislation needed for campaigns, voting and governance under the new system.  It is only the extraordinary situation created by the  extended term of the “Government of National Unity” beyond five years that has allowed the IEBC hope of being prepared for an adequate, as opposed to “model”, election next March.

Most of Kenya’s political class is concerned about winning, not about the conceptual quality of the process (hardly surprising–this is the nature of politics everywhere, and certainly in the United States; the difference in Kenya is the specific track record of most of the individual Kenyan politicians in the history of Kenya as a one-party authoritarian state that tortured its citizens for political reasons and has had major violence in all but one multi-party election since; and the uncertainty involving untested brand new institutions intended to keep the Kenyan executive branch from deciding its own election controversies).  Kenyans in general thirst for a fair election, as they did when they went to the polls in record numbers in 2007.  The problem was the disconnect between going to vote and having your vote counted.

Surely it is a bit patronizing to suggest that the chance to be extolled as a model to say   Zimbabwe or, depending on how the wind blows, Uganda, is a relevant factor to Kenyans, given what they have at stake for themselves, in Kenya.

But if it is meaningless to Kenyans, isn’t the “model” meme harmless?  Not necessarily.

Having lived through the disaster last time, I saw the desire for a “model” election morph into the denial of the hard but obvious reality of failure.   Read Ambassador Ranneberger’s cable to Washington from the day after the 2007 vote, Part Six of my FOIA Series.   We, the United States, through our Ambassador at least, wanted that “model” election badly enough that we were not willing to acknowledge that we didn’t get it until things got completely out of hand AND the EU had spoken out on fraud at the ECK.

Here are key quotes from Ranneberger’s December 28, 2007 cable to Washington:

The electoral process thus far deserves a strong statement of support, and clearly meets a high standard for credible, transparent, free and fair elections.  I made an informal statement last night that was carried extensively on Kenyan television.  It is, however, too early to make definitive pronouncements.  The ECK will likely not announce final results until December 29.  The EU and Kenyan domestic observation missions will make statements on the 29th.  By COB Washington time on the 29th we will send a proposed draft for a statement by Washington.  IRI will make a largely positive statement the afternoon of the 28th. (emphasis added).

.  .  .  .

“Advancing U.S. Interests”

We will keep the Department closely informed as results become clearer.  At this point, there are sound reasons to believe that this election process will be a very positive example for the continent and for the developing world, that it will represent a watershed in the consolidation of Kenyan democracy, and that it will, therefore, significantly advance U.S. interests.  The Kenyan people will view the U.S. as having played an important and neutral role in encouraging a positive election process” [End]

So on December 30, after the ECK named Kibaki as the winner of the election, the State Department issued official congratulations to Kibaki and called for acceptance of the results, as Ranneberger was doing in Kenya.  Ranneberger acknowledged in his own post-action cable of January 2, 2008 that he himself witnessed the failures at the ECK along with the head of the EU Election Observation Mission:

Other alleged irregularities, such as
announcing results that ECK personnel personally inflated should have been, could have been, but were not corrected. At one point Kivuitu told me that his concerns about the tabulation process were serious enough that “if it were up to me, I would not announce the results.” In the end, he participated with other commissioners in an announcement late on the 30th . . . . (emphasis added)

Either we wanted a “good” election badly enough to pretend that it had happened when in fact we knew better, or we wanted to support the outcome chosen by the ECK rather than a true count of the votes.  I don’t know yet which it was, but as an American it would be more comforting for me to believe that we were sincere in our pre-election expression of hope for an honest election, even if I knew from my own personal interactions with the Ambassador that he was taking some steps consistent with his more favorable view of Kibaki over Raila, such as his intervention in the pre-election public opinion polling to lower the expectations of the opposition (see his own depiction to Washington on December 14, 2007 in Lessons for Kenya’s 2012 election from the truth trickling out about 2007–new cables from FOIA (Part One)) and the McIntire/Gettleman New York Times story “A Chaotic Kenya Vote and a Secret U.S. Exit Poll” and his praise in the Kenyan media of Kibaki’s record on corruption vis-a-vis the John Githongo critique just before the vote.

Secretary of State Clinton and Assistant Secretary Carson appear to be getting a pass on how to handle the next round of Kenyan voting due to the delay of the election into the tenure of the next American administration.  A new Ambassador, reporting to a new Assistant Secretary, reporting to a new Secretary of State, whether appointed by Obama or by Romney, will have this early up on their collective watch.  I hope they will all know as much as possible about exactly what happened last time so as to approach this with realistic sobriety.

Vote Count News from Somaliland

The party of President Riyale Kahin, UDUB, has called for a delay in announcing election results due to “huge irregularities“. Since then, a new AFP report this morning carries a statement from the President that he will step down if he loses the vote.

Thus much weight rests on the shoulders of the National Election Commission to maintain credibility and independence. It has been a long, hard and contentious process over a period of years to get to this point in terms of the composition of the NEC and the creation of a voter registration system from scratch in a “new” and unrecognized country with uncertain borders and much of its population nomadic.

We know from Kenya that a peaceful transition of power requires not only a willingness to step down by a leader who loses the vote, but also either a willingness by the leader to lose the vote in the first place or an independent election commission. In Kenya neither of the latter two conditions were met at the end of the day.

The President’s elective term in office ended as I was ending my term of service with IRI and we were opening our new office in Hargeisa. The serial delays and extensions have extended the time in office and it may be that we will now see a lot more about whether this truly reflected the best efforts to get the process right or as some critics suggested were more motivated by a wish to stay without a new decision by voters. It is encouraging that the President has made this new personal statement, which is certainly something that did not happen in Kenya during the vote counting. Although it has been awhile now since I have been there personally, I did feel that my colleagues and I had cordial working relationships with the leadership of all three parties and I would be personally optimistic about the sincerity of my friends in UDUB in making wise choices in a difficult time, serving the interests of the country as first priority–something we are all called to do to have a democracy.