Monthly Archives: September 2022

The election landscape in Kenya has had many ups and downs resulting from the country’s evolving institutional dynamics since the 2007 election, which triggered unprecedented post-electoral violence. These dynamics are driven in particular by the promulgation of a new constitution in 2010. Many of its provisions regarding the bodies responsible for managing the election and adjudicating any disputes continue to underscore many opportunities and challenges.

The constitutional reform process itself was enacted on the heels of a contested result in the December 2007 election between then-president Mwai Kibaki and opposition leader Raila Odinga. Odinga cried foul on Kibaki’s certified victory, resulting in post-election clashes.

The fighting and ensuing political stalemate ended in February 2008 with the formation of a power-sharing Government of National Unity under both Mwai Kibaki and Raila Odinga. This resulted in the promulgation of the 2010 Constitution. The constitution provides two relevant groupings of institutional reforms. These were designed to improve and streamline the electoral process to prevent another 2007-style debacle. The results are mixed and shall be explained hereunder.

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

The 2010 constitution overhauled the institution responsible for managing the vote and certifying the outcome. A new Independent Electoral and Boundaries Commission replaced the Electoral Commission of Kenya. The constitution and subsequent legislation improved managerial oversight and operations by specifying that the new electoral commission’s appointment of commissioners must be non-partisan. The institution is also empowered to regulate political party activities and implement procedures to improve voter registration and voting procedures.

Most critically, it is charged with the tabulation, transmission and certification of results.

The ability of the Independent Electoral and Boundaries Commission to oversee a robust election under the new constitution has been undermined by a number of what seem to be errors. Some were unforced, some forced. Some were of their own doing and some not.

For example, in 2013 and 2017 the commission was beset by scandals over the tendering processes of sensitive election materials and technologies. These are often procured from suppliers abroad. Some of these actions probably arise from compressed timelines and uncertain budgets. But others imply improper actions by commission staff and political agents trying to influence it.

The commission has turned to new technologies to improve the voting and tabulation of results. These include the introduction of biometric voter registration and the Kenya Integrated Election Management System. In 2013, the biometric system failed. This was due to the inability of laptops and fingerprint scanners to work properly or receive power at many polling stations.

The election management system is probably the most controversial and consequential aspect of the commission’s reliance on technology. It was designed to improve the transmission of results from polling stations to the commission’s headquarters. But many kits failed in 2013 and 2017. This was as a result of intentional or unintentional user error, network connectivity problems and/or cyber-hacking.

The commission improved transparency in 2022 by demonstrating to the public how the results transmission works and performing a pre-election nation-wide field-test of the management system.  

THE SUPREME COURT

The second constitutional reform involved the dispute mechanisms available to contest results. The root cause of the post 2007 election violence was due to the fact that the Raila led faction did not see any other legal avenues to contest the election. In response, the 2010 constitution provided for numerous reforms to the judicial branch. It specifically empowers a Supreme Court to hear and be the final arbiter on all electoral petitions.

In 2013, the court heard his petition but ruled in favour of the Independent Electoral and Boundaries Commission and certified Uhuru’s victory. Raila accepted the outcome of the Court and the first step of “post-election peace” was successful.

In 2017, the court shocked the country when it ruled against the commission’s certification of Kenyatta’s re-election and nullified the presidential result. The verdict was based on evidence from petitions and its own investigation. On one hand, this unprecedented action demonstrated the Kenyan judiciary’s newfound independence and willingness to take aggressive action to improve electoral integrity. On the other, it helped to quell tensions between Odinga and Kenyatta’s supporters. Although the nullification required a revote, the commission proved inept at providing credible improvements. Odinga boycotted the re-run.

What next

The new constitution enhances election management, some of which the commission has improved on from its predecessor. But challenges remain. And unlike 2007, the constitution also provides new dispute mechanisms to encourage any petitioners to pursue legal, as opposed to violent, objections to results.

The lessons from 2013 and 2017 indicate that the media, parties, civil society and citizens should be as vigilant as ever. If the commission can improve its performance, the Supreme Court will simply become the “arbiter of last resort” rather than the “go-to” solution for the losing side.

For More Information Please Contact

Mavin.macharia@attorneysafrica.com

Info@attorneysafrica.com