Thoughts on Kenya’s Supreme Court opinion [Updated]

UPDATE–April 21: Read Kenyan lawyer Wachira Maina’s devastating critique of the Court’s opinion from the new East African. Or at the AfriCOG website here: “Verdict on Kenya’s presidential election petition: Five reasons the judgement fails the legal test”.

Here is the full Kenyan Supreme Court opinion released this morning. It’s 113 pages, but most all of it is taken up by accounts of some of the arguments presented by the various attorneys.

The Court elected to apply a standard of proof that would require “in the case of data specific electoral requirements” petitioner to prove irregularities “beyond reasonable doubt”.

Overall, the Supreme Court simply deferred to the IEBC to decide how to run the election. The Court justified its constrained rulings on allowing evidence on the basis of strict and very short deadlines which it asserts are justified by the importance of the Presidential election–thus leaving more detailed trials for the more than 180 other challenges filed so far in the Courts below for the other races.

The Court did not give rulings on the admission of evidence such as the videotapes presented by AfriCOG’s counsel of results being announced at the County level that differed substantially from those announced by the IEBC at its national tally centre in Nairobi, or otherwise grapple with any specifics of reported anomalies, including those among the sample of 22 polling stations that were to be re-tallied. Nor did it address the fact that its order to review all 33,000 Forms 34 and the Forms 36 from all constituencies was only slightly over half completed.

The Court declined to impose legal consequences in terms of the announced election outcome from the failure of the IEBC’s technology, but significantly did find that the main cause of the failures of the electronic voter identification system and the electronic results transmission system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”

See my previous post asking why we should trust the IEBC in light of the procurement integrity failings.

In closing, I have to note that the Court gave itself an extra two weeks after the deadline for its ruling to make any kind of explanation for that ruling. Then gave itself an additional two days. Similar flexibility in considering the facts of the case itself could have allowed it to do a more credible and substantive job of actually reviewing the election.

[Updated] “The People’s Court” launch Friday morning in Nairobi

Update: Here is the story from The Star.  And here is “The People’s Court”!

The Daily Nation coverage is here.

10:00am Friday at the Sarova Stanley in Nairobi InformAction and AfriCOG will launch a new online collaboration:

The website is a joint project between AfriCOG and InformAction and is an attempt to present in public all the evidence around the recent elections. Some of that is from the cases filed at the Supreme Court, but it will also include material and information from citizens, observers and others. Citizens will be provided a location to post /Number to send text messages in order to submit any information and evidence they gathered so that the complete truth on the recent elections can emerge.

Importantly, The People’s Court will be an accountability mechanism on the IEBC and the Supreme Court. Analysis of the Court’s decision will be posted on the website hoping to engender critical and constructive discussions on why they took the decision that they did, in the face of the evidence that will be presented.

The People’s Court gives the public unique access to all the evidence filed at the Supreme Court in the Civil Society petition challenging the election process.

By inviting citizen participation, we aim to make institutions accountable and uphold the high democratic standards of the constitution. We also hope that the website will be used as a forum for debate and opinion, celebrating freedom of expression in Kenya and our vibrant tradition of democracy activism.

Kenya needs a better election review process next time . . . as respondents argue that IEBC has done “so much” that presidential election announcement should stand as good enough

So we are down to the hearing of the challenge to the presidential election involving some ten to twelve million voters in a country of over forty million. All of the voting was done by paper ballot and counting by hand. At the time of the hearing there is no list available to the petitioners or the court of who did and did not vote, nor one defined list of who was eligible as a voter.

Even with the breakdown of the intended election technology across the board, the IEBC announced a final vote count on the evening of March 8, just over three days after completion of the voting, in spite of having seven days available for the process, then formalized the result the next day, March 9.

It now comes down to one day of oral argument on each side in an adversarial proceeding between the IEBC represented by government counsel and AfriCOG and CORD for the Supreme Court to decide whether to let the IEBC pronouncement stand, or not.

There has been no administrative process or review, there has been no neutral body involved prior to the Supreme Court. The IEBC has been in an adversarial mode in defending its decision since the decision was made. The Court has determined that there is no time for detailed discovery of evidence sought by petitioners.

The Court will ultimately have to decide this case on the basis of generalities–either recognizing the standards required by the Constitution for voting were not met systemically:

Article 86:

At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple,
accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results
announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and
accurately collated and promptly announced by the
returning officer; and
(d) appropriate structures and mechanisms to eliminate
electoral malpractice are put in place, including the
safekeeping of election materials.

or, alternatively, the Court will defer to the the IEBC on the basis that its decision is unimpeachable except to the extent that it can be disproven vote by vote in detail through admissible evidence in adversarial litigation in one day.

Election Observers and the “Emperor With No Clothes” Phenomenon

Surely there is embarrassment over the allegation made by observers that hundreds of thousands of Kenyan voters confused the green ballots for National Assembly and blue ballots for Senator, and made similar improbable errors, due to “lack of civic education”.

This was offered as an explanation for huge numbers of “invalid ballots,” which turned out to be the bogus data from the IEBC from their electronic reporting system before it was taken down.

In other words, when the Kenyan IEBC reported something that did not make sense–and clearly was contradictory to what actual observers SAW in the field with their own eyes since it did not really happen–some self described International Election Observers, rather than point out that they did not see what the IEBC was reporting, instead, sought to concoct specific explanations for why the voters instead of the electoral commission (or hackers or whomever caused the data fault) was responsible.

Kenyan High Court, while finding no jurisdiction to examine IEBC’s process because it touches on the election of a President, states that civil society case raises issue that should be examined in appropriate forum

My personal heroes with Kenyan civil society, the African Centre for Open Governance, went to the Kenyan High Court this morning with a petition seeking equitable relief to direct the IEBC to follow the election law, focusing on the verification of actual voting by polling station as discussed in my previous post.

The court ordered argument on jurisdiction alone at 11:00am in front of a three judge panel appointed by the Supreme Court, with ruling to be announced at 3:00. The ruling was not announced until 4:30. The court ruled essentially that any challenge to IEBC procedure related to the presidential election such that it could only be brought in the Supreme Court of Kenya. IEBC’s lawyer also argued that the Supreme Court could only hear the case after the IEBC declares an election result, although that would presumably be a decision for the Supreme Court itself. Thus the High Court “struck off” the case, finding no jurisdiction to act.

However, the Court did state that they had reviewed the affidavits and other evidence presented in support of the petition and found that they raised issues that were “not idle” and should be pursued in the appropriate forum. And ruled that each side to bear its own costs.

Things remain with the IEBC the time being.

Taking Down My Last Post . . . Kenyan Election Is “Overeported” and “Under Researched” based on lack of transparency

The voting was over by Tuesday, March 5. The IEBC (the Kenyan replacement for the previous discredited Electoral Commission of Kenya or “ECK”) then has seven days to announce final results from the votes, which are cast by paper ballot and counted (only) at the individual polling stations around the country. The results at each of the more than 30,000 polling stations around the country are set out on multiple original official forms which are signed by the election official and the political party agents. One original is then posted on the door of the polling station where the counting has been done. This way the public can see the results while the armed guards at the door keep the public out of the room where the physical ballots are secured back in the sealed ballot box after counting.

Since the digital transmission of results failed for reasons that remain unexplained factually but much pontificated about, we are left with less information early than we would have hoped. But, as long as the forms remain available for each polling station, and are open to the public, we ought to be able to nail down how people voted–at least as the votes were counted.

Unfortunately, there is much pressure to rush and do something less than verification based on the actual documented count of the votes.

In 2007, the actual voting results were ultimately never released or disclosed, and while many court petitions were successfully adjudicated in parliamentary and local races, the Kreigler Commission appointed under the post election settlement to investigate the failed election passed on any further effort to actually determine the presidential votes as counted and announced at the polling stations. While there are alleged “official results” published by the ECK, they are only alleged aggregated numbers by parliamentary constituency, not by actual unit of voting and counting.

For my American readers, imagine results for the presidential election that are announced only in aggregate by Congressional District.

See my previous post for the results at the polling station where I observed. This information should be available for each polling station, and should then add up to what is reported as a matter derivatively on up the chain.

Closing out polling station and presidential count: amazing Kenyans exceed 80% turnout in spite of technology failure

Okay, congratulations are in order for a great job by presiding officers and polling clerks, and incredibly patient voters at the polling centre where I spent the late afternoon and on until finishing the presidential count and posting the signed off results on the door to be photographed at the stream I was covering.

Everyone got better at adapting to the absence of the technology and the cumbersome process and voters moved much faster through the remaining lines in late afternoon and early evening. Having stood in the hot son all day in huge lines surely motivated everyone to get done, but essentially no grousing was to be heard where I was at that point.

Turnout at the stream I closed was 626 valid votes cast for president from 755 registered voters. So over 80%. The boxes were jammed full of ballots but the system worked. Totals for president were Odinga 433, Kenyatta 170, Mudavadi 8, Kenneth 7 and the rest less. Dida was the only presidential candidate in that stream to get 0.

Will post “snaps” soon.

More impressions from observing voting in Nairobi

One big challenge is slowness of process–certainly no surprise at all which is why my civil society colleagues asked that the contingency plans for this be announced ahead of time by the IEBC (electoral commission). Poll openings at 8-10am appear common in Nairobi rather than scheduled 6am–again no surprise given the logistics involved. It certainly appears that in most cases a paper rather than electronic poll book is in use. Further it appears that complete absence of working electronic BVR for voter identification is common. Some polling streams never received hardware at all; others received too little or found it unusable for whatever reason.

Wholly manual voting then is normal, even though the voter registration was truncated to provide for the use of BVR. Given that the voting is inevitably slow and the turnout is huge, I heard from one fellow observer of polling station workers just taking down names of people who presented IDs and allowing them to vote because it would take too long to try to find and check off names on the paper lists.

The voters are being in general extremely patient with hours of pre-dawn queuing and waiting in hot sun. Ordinary Kenyans in Nairobi certainly are demonstrating both peace and a commitment to the voting process itself.

The unexpected problem, to me and people I have spoken with, is that the ballot boxes were getting close to full with only a relatively small percentage of voters having voted. Presiding officers indicated no backup capacity, but were shaking the boxes to settle the cast ballots..

First impressions–front and back

I covered the opening of a Nairobi polling centre this morning.

Loose general impressions in comparison with 2007: pre-opening lines seemed even bigger than 2007; large numbers of people got out to que in the pre-dawn; actual voting quite slow as should be expected with new and complicated process and six ballots versus three. There was some stream of periodic boisterousness from people waiting and concerned by bottlenecks–things were quiter in 2007.

One thing that annoyed me was to see that the ballot papers are all white paper except for the color on the front only to correspond with the specific race (i.e. “purple” for woman’s representative to National Assembly). This means when you fold the six ballots for secrecy and to drop them in the color-coded box they look the same. My civil society colleagues raised this issue, among many, with the IEBC. The IEBC reported to one member of the civil society coalition who then circulated the response, that the cheaper ballot papers colored only on one side were only for the “mock election” testing, and that today, voters would have the intended fully colored paper.

Apparently not so. Not that the problem in itself is of such magnitude perhaps, but the quality of the information and means of communication from the IEBC were lacking on this point. And of course it would be good to know, even though it will be too late, what happened in the procurement process to cause this.

Enjoyed meeting diplomatic observers from the Danish Embassy and the Eritrean Foreign Ministry.