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Technological and Administrative Doubt: Kenya's 2013 Elections in Perspective

JURIST Guest Columnist George Kegoro of the International Commission of Jurists argues that the results of the 2013 presidential election in Kenya are unavoidably marred by technological failures and the shortcomings of the Independent Electoral and Boundaries Commissions...

Now that Kenya has completed the general elections for 2013, which ended with the declaration of Uhuru Kenyatta as the fourth president of Kenya, it is useful to reflect on the whole electoral process in perspective.

The country must be relieved that large-scale violence — a hallmark of the elections in 2007 and about which there was much fear — did not materialize this time round. However, there was still serious violence, most notably in the coastal regions of Kenya where alleged members of the Mombasa Republican Council (MRC) staged a series of daring attacks aimed at preventing voting. To their credit, the people of the coast bore the threat of violence with great stoicism and still voted in numbers. There is fear, however, that those numbers would have been larger if the violence had not happened.

In retrospect, the government must review its approach in tackling this group. It should be remembered that in July 2012, the High Court of Kenya gave a breath of legality to the MRC by lifting a ban that had been imposed on the group by the Kenyan government, which regarded it as an "organized criminal group." At the time, the MRC was not known to espouse violence as a means of achieving its secessionist agenda. The attacks last week have changed all that and it will now be difficult for the MRC to justify their continued right to legal protection. The attacks last week must lead to a re-appraisal of the group with a view towards bringing about an end to its activities.

The elections gave the Independent Electoral and Boundaries Commission (IEBC) its first chance to run an election. Formed only in 2010 in the place of the now-defunct Electoral Commission of Kenya, the IEBC has not had the opportunity to run elections before. While acknowledging that these elections were novel in many ways — as they gave rise to a situation in which the electorate was required to elect six offices in the place of the three traditional offices in Kenya — the IEBC did not meet the challenges particularly well. Two issues are worth noting in this regard.

Not unexpectedly, voting was very slow as there were many elections in one. This led to massive queues around the country, the worst of which were in urban centers, particularly Nairobi. The violent attacks in Mombasa also led to a delayed start of polling in the affected areas. The effect of these delays was that the IEBC had completed the voting and started the announcement of results in some areas, while Kenyans in other areas were still standing in slow-moving queues, waiting to vote. This is highly undesirable, as the announcements probably affected the electoral choices of those that were involved. Not surprisingly, one of the participating political parties complained about this reporting problem in the immediate aftermath of the election. With better planning, the IEBC could have minimized these delays. In the future there should be a reporting deadline before which the transmission of election results cannot begin so as to allow those that are still waiting to vote to do so without the influence of rolling results.

In these elections, the IEBC embraced technology to promote accountability. Without exception, all of that technology failed. Specifically, the biometric voter registration system (BVR) aimed at identifying voters and preventing ballot stuffing were scrapped by the IEBC in the run-up to the election. In most places, the failure of these systems were the result of the batteries of laptop computers running out of electricity — often within one hour of the start of the voting. Surely, it was foreseeable that computer batteries would need to be charged. IEBC's failure to prepare for this after the organization acquired the expensive BVR kits smacks of monumental incompetence. The IEBC must be held accountable.

As a result of this technological failure, there will always be a difficult-to-dispel suspicion surrounding the election results. The Kriegler Commission, which identified the problem of the 2007 elections, dealt with the issue of improbably high voter turnouts and recommended [PDF] reforms. Based on the performance of the IEBC, Kenya is still far from achieving reforms against ballot stuffing and related malpractices.

There was also a failure of the electronic results transmission system. In the face of this failure, the IEBC resorted to a manual tallying of results which has been criticized for its lack of transparency. In particular, the failure of the transmission system resulted in an inability on the part of the IEBC to declare results as and when they were available. Delayed declaration is regarded as prone to fraud. As part of this manual tabulation system, the IEBC used Form 36, which was used to collate polling-station-level election results. As a direct result of this failure, there will always be inherent doubt as to the integrity of these election results.

Throughout these elections the media and other sectors of society — perhaps nervous about the failed elections of 2007 — shunned stories portraying problems with the management of the elections, in general, and the shortcomings of the IEBC in particular. In truth, the presidential elections of 2013, like those of 2007, have been a failure. The similarity is that, like Mwai Kibaki in 2007, Kenyatta has acquired a massive mandate without a commensurate amount of popular legitimacy. The difference is that the failure in 2007 produced violence. Fresh memories of such post-election violence no doubt helped this time around.
The overall lesson from the 2013 elections is that Kenya is still a long way from carrying out credible national elections. In the coming months, these problems must be addressed; starting with an audit of the affairs of the IEBC including the expensive, but ultimately useless, gadgets acquired to run the elections.

George Kegoro is the Executive Director of the Kenyan Section of the International Commission of Jurists.

Suggested citation: George Kegoro, Technological and Administrative Doubt: Kenya's 2013 Elections in Perspective, JURIST - Hotline, Mar. 17, 2013, http://jurist.org/hotline/2013/03/george-kegoro-kenya-election.php.

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