Brand new from Palgrave, Westen K. Shilaho’s Political Power and Tribalism in Kenya. Reading now.
Brand new from Palgrave, Westen K. Shilaho’s Political Power and Tribalism in Kenya. Reading now.
Daily Nation: “Chebukati cannot edit poll results“:
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.
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.)
A Kenyan blogger wrote in early 2008 that I “should be” subpoenaed after I was reported in Slate magazine as “sitting on” the embargoed USAID-funded IRI exit poll. I would have welcomed it. Sadly no subpoena came. No one approached me except from the media as I hoped that the decision would be made in Washington to end the embargo as Joel Barkan and I urged.
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?
Lots of good journalism out today, but this story from Peter Fabricus in my evening Daily Maverick Weekend Thing strikes me as hitting many of the right notes: “Kenya’s courts step up to electoral plate.”
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.
For Kenyan must reads, start with Nanjala Nyabola, “Why I’m proud to be an African today,” at IRINnews.com.
“IEBC’s high-tech system to guard against ballot stuffing” The Standard July 22, 2017
The Independent Electoral and Boundaries Commission (IEBC) has assured that the integrity of the August 8 election has been guaranteed through tamper-proof technology.
The Kenya Integrated Elections Management Systems (KIEMS) has unique features that will make double voting, ballot stuffing, and irreconcilable voting patterns impossible. IEBC is already preparing to deploy 45,000 KIEMS kits to be used in all the 40,883 polling stations across the country.
Every polling station has been allocated a Kit with a maximum number of 700 voters depending on the size of the polling centre. By implication, voters in a polling station cannot exceed the allocated number.
The KIEMS technology has two main functions in this election. The first is biometric identification of voters on the election day and results transmission after counting the votes.
The Commission has made it mandatory for all voters to be identified biometrically to close the doors for possibility of resurrection of dead voters.
IEBC Chief executive officer Ezra Chiloba said the Commission has invested heavily in technology and can guarantee successful transmission of election results.
“We have no choice really. The law already demands of us to electronically transmit presidential results from the polling station to the tallying centres,” he said.
After counting of results, the presiding officers in the presence of party agents are expected to type the total number of votes garnered by each candidate into the kit.
The kit aggregates the results automatically and the total number of votes cast for all the candidates is recorded. In cases where the number of voters exceeds the total number of registered voters, the kits shall automatically reject the results. This measure, according to the Commission, effectively makes ballot stuffing impossible.
As an additional measure to guarantee the integrity of elections results, the presiding officer shall scan Form 34A using the KIEMS kit. The Form 34A is signed by both the presiding officer and party agents. Once scanned, the presiding officer shall, together with the text results, send the same to the national tallying centre and constituency tallying centres.
The kit shall equally report turnout trends periodically throughout the day. With this kind of monitoring, the Commission says, ability to identify abnormal voting patterns is guaranteed.
At the end of the voting, said Mr Chiloba, the presiding officers in the presence of party agents are required to reconcile the number of voters recorded by KIEMS as having voted and the number of ballot papers issued.
“We have two procedures that minimise the risk of ballot stuffing. One, the voter turnout as recorded by KIEMS. Two, the ballot papers reconciliation that happens at the end of voting. The number of ballots papers issued and the records of voter turnout as registered by KIEMS should be able to reconcile,” he said.
The Commission contends that once the presiding officer has pressed the “Submit” button, the results cannot be changed by anyone.
Using an encrypted format, the results shall then be transmitted to the tallying centres through a secure network in real-time. The public will be able to view the results online. Similarly, Media will have a dedicated connection to access real-time results as well.
According to ICT sources within the commission, the KIEMS have a unique in-built audit trail. The in-build audit trail enables the commission to collect all the kits and to retrieve records from the SD cards for any analysis at the end of voting. This in-built accountability tools implies that the process of voting can be subjected to objective scrutiny at any point in time after voting.
. . . .
Clearly, much of what Chiloba and the IEBC described here just over two weeks before the election did not actually happen after the votes were cast and counted on election day.
Why? Well, much of the explanation likely rests on the new information disclosed in the Registrar’s reports on the Forms 34A and Forms 34B and the IEBC ICT review in the Supreme Court litigation. Other things were going on within the process than described.
The voting and counting, as I have previously noted, is the same this year as in the past. The voter register remained messy again with likely more than one million dead voters and plenty of ineligibles, and was not fixed and locked down as required. From outside appearances so far, however, the EVID system seems to have substantially worked this time which may have been a big improvement from 2007 and 2013 in limiting in person voting by ineligibles.
The RTS system which was to transmit from a unique registered and logged-in KIEMS device for each of the polling stations a scanned image of the finalized executed Form 34A simultaneously to the various tally centres, either was substantially misused or failed to work as advertised and/or some combination of the two. The Jubilee majority in Parliament early this year, coincident with the turnover from the Hassan-chaired IEBC to the Chebukati-chaired IEBC passed over opposition objection the option of allowing a complementary substitute for the electronic system. As far as I can tell the IEBC did not actually plan and establish such an alternative system, nor certainly did they effectuate it in any comprehensive, demonstrable, traceable way.
Nevertheless, rather than take the seven days alloted by law, Chebukati announced alleged final Presidential results roughly 72 hours after poll closing.
Is this “close enough for horseshoes and Kenyans” or is more required to successfully conduct and conclude a presidential election in Kenya in 2017?
Update: my email to a friend regarding the Court-ordered review of IEBC presidential election data:
I haven’t finished reviewing the Registrars report in detail, but it seems clear to me that the IEBC declined to provide, as directly ordered by the Court, the evidence that would verify or falsify alleged transmittal of scanned Forms 34A by KIEMS sets from Polling Stations to Tally Centres (Constituency, Cty, Nat’l).
Whatever the Court decides to do about the on the ruling petition as a whole, allowing the IEBC to flex its muscle over the Supreme Court openly in this way would probably pretty well tell us where things are headed on rule of law issues over the foreseeable future and whether there will be a serious challenge to Ruto in 2022-32.
My update is to just say Kenyan IEBC is not done with their job, but I’m done saying anything at all about this election process so far. Since I’m not involved it doesn’t help to offer public commentary.
Even the most crucial security sectors, including most especially the police services (which, by the way, have received aid in training and other support from the United States since 1977) are pervasively corrupt and widely feared.
Under the circumstances it would be an extraordinary feat–rooted in a resolute act of will–for the Kenya’s IEBC (and its donors) to pull off a relatively clean and transparent election process. You will have to excuse me for being concerned after my experiences in 2007 and 2013.
So far, we have had special legislation passed by the ruling party early in the year in parliament over opposition objections to mandate a “manual” backup system for reporting the votes from the polling stations in the event the electronic system “fails” as it did in 2013. It is now barely more than 30 days before the vote and the IEBC has not explained what this manual system is. I was told in 2014 by a donor insider that in 2013 the IEBC had no “plan B” in place to obtain results from the polling stations even though they had gone ahead and scrambled, kicked observers out of the tally process, and announced final presidential results after the electronic reporting system was shut down. Clearly the IEBC needs a “plan B”–whatever it is–both as a practical matter and now as required by law. And it needs to be transparent, now.
The Kenyan court ruling that the votes as counted at the polling station are legally final and not subject to being unilaterally changed without legal proceedings by the central IEBC process certainly helps–but there must still be a process to gather the numbers as posted on the door of each polling station (and to note any polling stations where the results are not publicly posted as required). According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.
Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure. The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement. What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:
From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:
“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability. IFES will ensure this system is fully installed, tested and operational for the 2012 election. Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.”
[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]
This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015. Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.
In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).
Warnings about transparency have been outstanding for months from the International Crisis Group (See: International Crisis Group on “Kenya: Avoiding Another Electoral Crisis” calls on donors to show “complete transparency”; USAID is apparently not convinced yet.) and most recently Ambassador Mark Bellamy has published a June 29 assessment for the CSIS Africa Program noting the need for more transparency from the IEBC (Kenya’s Young Democracy Put to the Test.)
This year’s version of the “results transmission system” is wrapped into one big high risk procurement for the “Kenya Integrated Electoral Management System” of “KIEMS” which includes both the electronic voter identification system and the results transmission system. The ordinary procurement system failed to generate a legally sustainable award for this system. The new IEBC, running out of time, announced a sole source award this spring to one of the unsuccessful previous bidders, the French company Morpho.
A related company, Safran Morpho, was given a 2012 sole source award for the BVR kits for the 2013 election — which ended up with the election day use of a separate hard copy printed register at each of 30,000+ polling stations rather than an integrated and biometrically verified system. The sole source purchase in 2012 was announced as a “state to state” transaction–which eventually came out to mean some type of loan from the Canadian Government to the Government of Kenya (involving a Canadian subsidiary of the French parent). When the sole source transaction to buy the KIEMS system this spring was announced by the IEBC, it was reported in the media as again a “state to state” deal–with no details as to what states or what terms. The IEBC announcement gives no indication as to whether the reporting of a “state to state” deal is accurate or otherwise whether there is any donor funding involved.
Who has paid for and/or financed the KIEMS system? Will it work as advertised? If not, will the IEBC or the donors tell voters ahead of time?