Detailed Review of the Kenyan Supreme Court Decision

Wananchi

The Kenyan Supreme Court decision about the March 4, 2013 General Election was very long. It was 113 pages total.

Accordingly, with the assistance of my wonderful GA, Jillian Underwood, I have taken on the task of giving you a blow by blow of what the opinion said. A future post will give my analysis of the same. But do to the length of the opinion, this post will simply tell you what was in the opinion.

Please note that I am a licensed lawyer. I graduated with honors from the University of Texas School of Law. I also clerked for Justice Jack Hightower on the Supreme Court of Texas. Finally, I was an honors trial attorney for the United States Department of Justice. I am not licensed in Kenya. However, both Kenya and the US are essentially common law systems. Accordingly, I do have enough knowledge to comment intelligently on this topic. However, what follows below is an outline of the court's decision.

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The IEBC was created by article 88 of the Kenyan Constitution (2010) and the IEBC is responsible for conducting free and transparent elections.

Three Petitions were filed. On March 25^th all three petitions were consolidated.

1)   Complaint One was filed on March 14 by Moses Kiaarie Kuria, Denise Njue Itumbi, and Flowrence Jematiah Sergon. Claim:

a.     Respondents’ decision to include rejected votes in the final tally had a prejudicial effect on the percentage of votes won by Kenyatta.

2)  Complaint Two was filed on March 16 by Galdwell Wathoni Oteieno and Zahid Rajan. Claim:

a.     The election was not conducted in accordance with the Constitution

                                               i.         IEBC failed to establish and maintain accurate voter register that was publically available, verifiable, and credible as required by the Constitution.

                                              ii.         IEBC is obligated under the constitution to tally and verify the results and the polling stations, give electronic transmission of the provisional results and include party agents in the National Tallying Centere.

b.     The true number of registered voters was unknown and without the credible principal voter register the validity of the election is tampered.

c.       IEBC failed to meet the mandatory legal requirements to electronically transmit election results.

3)   Filed on March 16, 2013 by Raila Odinga. Claim:

a.     The process was so fundamentally flawed that the presidential results must be reconsidered.

                                               i.         Evidence included the IEBC changing their official tally of registered voters several times and the final total of registered voters differing from what was recorded n the Principal Register. Some polling stations reported higher numbers than those registered.

 Main Issues:

1)   Whether Kenyatta and Ruto were validly elected.

2)   Whether the election was free, fair, transparent, and credible in manner in compliance with the Constitution.

3)   Whether rejected votes should be included in determining the final tally votes.

4)   What consequential declarations, orders, and relieves should the Court grant.

Rejected Votes

·      The petitioners state the respondents unlawfully used a format that included rejected votes as a basis for determining met the threshold as stipulated by 138, or at least their understanding of the article. They also cite Rule 77 of the 2012 General Election Regulations that state rejected paper ballots should be void. Therefore, if they are not counted towards a particular candidate, they should not be factored into the overall counting and percentages.

·      The respondents argued that the basis for the first petition is invalid as the Constitution does not directly say that rejected votes should not be included in the threshold percentage for the win.  HOWEVER, they do urge the Court to settle the issue as it will likely arise in future elections.

Voters’ Register

·      Petitioners argued that there can be no free and fair election is there is no credible register. The Voter Register provisional numbers, the numbers announced by the IEBC, and the numbers released upon the inspection of the machines were inconsistent (each number higher than the last).

·      The petitioners further argued that Kenyans have the right to vote but they must be registered to vote and that no provision under the law allows for non-biometric (referred to a “green-book” or the “primary reference book” hat was used in some constituencies) register and therefore, there is no valid reason for the numbers to be inconsistent.

·      The Respondents explained that under the Constitution the IEBC was to deploy appropriate technology in the performance of its function, including the Biometric Voter Register (BVR), however, the BVR was not mean to completely replace the manual system of registration, but was instead intended to add an additional layer of efficiency.

·      Further, the respondents urged that the voter registration is a critical tool for enforcing universal suffrage and the special register was a tool aimed to ensure no disenfranchisement of the citizens that had the right to vote.  For example, if someone is disabled and their fore-limbs are unavailable for capturing their biometrics or those whose fingerprints are scarred or lost impression such as the elderly or people who participate in physical labor.

·      The IEBC claimed that they were transparent as they issued press statements and provided notices on its website regarding information all aspects of the electoral process. Further, they stated they took robust measure to involve members of the public and the political parties in verifying the integrity and accuracy of the Voter Register. 
-   In fact, all political parties received a copy of the provisional register of voters in the form of a CD and all political parties agreed that in the event of failure of the electronic voter-identifying (EVID) device, the print out from the electronic register would be used in the election.

Electronic Support for the Electoral Process: Validity

·      Petitioners claim that all electronic processes adopted by the IEBC failed- primarily the transmission of results, and therefore did not meet the 2011 election regulation guidelines – Section 39 and regulation 82 of the 2012 general election regulations. Without electronic transmission, there was not basis for verification of the results as verification requires provisional results to be compared to final tallies and, therefore was susceptible to manipulation and corruption.

·      Petitioners claim that since the BVR malfunctioned- the procurement process was taken over by the Government and therefore led to the loss of independence. Since, they argue, the procurement process was illegal, the EVID kits were inevitably faulty and since they failed, “millions of voters” did not have their votes counted accurately.

·      Further, they argue that the consistent gap between the leading candidates is scientifically impossible if they were truly being randomly delayed.

·      Overall, the petitioners argued that the machines should have already had the bugs worked out- i.e. – have the ability to automatically subtract from the main register voters who has already voted.

·      The respondents argued that under the constitution, IEBC is only required to process, tally, and transmit the final results and no where does it explicitly say what means are to be used- electronically or manually. The IEBC suggests the technology was only to be used as an added layer to the process and was to be utilized as part of other numerous check and controls not as a complete replacement.

·      The respondents did acknowledge the technologies deployed experience challenges, but such challenges were not catastrophic and did not impact negatively on the outcome of the election. They have learned from the challenges and will provide a basis for strengthening the electoral process.

·      Analysis of Court- voting process most technical of claims- petitioners argue that the act of voting is the totality of the electoral process and therefore a weal link ensure total collapse and therefore the results are likely to be inaccurate. Respondents argue that the voting is the action of marking the ballot paper and the process before and after only ascertains the voter’s choice. The respondents cite cases from the Philippines to argue that even there was failure in the support of the process, the right to vote is not defeated.

·      Analysis of Court- Regulation 60 of the Elections regulation, 2012 reveal that voting may be done by marking the ballot paper OR electronically. Therefore, the voting system envision was to be manual. Polling stations in rural areas have “distant dream” of a reliable supply of electricity but voters still conduct their civil duty via paper ballots.

Vote Tallying: Reflect Voters’ Choice

·      Petitioners argued that the tallying exercise was seriously marred by irregularities. Specifically: material alteration of documents used in the tallying and verification exercise; inconsistent numbers between those registered and those tallied; exclusion of Presidential candidates’ agents and accredited observers from the National Tallying Center; overall inflation of votes for Kenyatta and deflation of votes for Odinga

·      Petitioners evidence- 26 polling stations where the number of valid votes casted exceeded the number of registered voters.

·      Argue that the respondents did not put in place measures to ensure the accuracy of vote-count, after the failure of the electronic results-transmission system.

·      Respondents: maintain the counting, tallying and transmission was efficient and lawful and they went well beyond the thresholds of the Elections Act by establishing an elaborate audit process. They stated they resolved many issues as they arose. The results and forms were verified by multiple officers. As for the National Tallying Center, the officers were allowed in the room, however, they came rowdy and threatening, and thereafter moved to a separate room.

Some Issues of Facts: THE COURT’S FINDINGS

·      On March 25th,  the court ordered scrutiny of all Forms 34 and 36, which were used in all 33,400 stations to gain a better sense of the electoral process and its integrity.  Aggregated results of Form 36 voters from 75 counties were missing. Forms 34 were missing in a handful of polling stations. They specifically cite 10.

·      The court also ordered a re-tallying of 22 poling stations. It was determined that 5 of the stations had discrepancies.  

·      The court also found that in some instances, the number of registered votes was not reflected in Forms 36. In other instances, there were two Forms 36, attributed to the same constituency and both were counted during the tallying process. Even after the register of voters was closed, there were instances where voters were still being registered. In several polling stations, the number of votes cast exceeded the registered voters as per Forms 34. The results from these polling stations should have been nullified but they were included in the tallying of results.

·      This evidence and data, as the court conducted it, now overrides the results expressly relied on by the petitioners and respondents.

·      The court stated that the respondents answered each of the discrepancies highlighted in the court’s report. 

•   While there were some missing forms, it was not in bad faith, merely an oversight given the limited time-period the respondents hand to deliver the documents. For forms 36 that were provided twice, they were not included in the tallying process. In some instances the second form was merely used during correction of mistakes where then the first form would not be counted.
•   In every instance where more votes cast than registered voters, the Green Book, which contains the manual register, was given to the court for scrutiny.
•   As for the 22 polling stations, these were spread out through the country, giving no advantage to one specific candidate. While there are clerical errors, no foul play can be attributed.

Burden of proof vs. standard of proof: While it is conceivable that the law of elections can be infringed, especially through incompetence, malpractices or fraud attributable to the responsible agency, it behooves the person who thus alleges, to produce the necessary evidence in the first place – and thereafter, the evidential burden shifts, and keeps shifting.

•  The lesson to be drawn from the several authorities is, (stated the court) that the Court should freely determine its standard of proof, on the basis of the principles of the Constitution, and of its concern to give fulfillment to the safeguarded electoral rights. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt.

Judicial Restraint: the facts and special circumstances of this case (86% turnout, no loss of life, peaceful) require restraint in the judicial approach. The institutions of democracy and constitutionalism requires a certain degree of public confidence which, for the judicial process, is a treasure, that can only be nurtured through restraint, where the electoral will has been made known.

• Technology- (See page 86) The technological failure was the main argument of the petitioners. Technology is rarely perfect and those employing it must remain open to new technologies. 
•   It is clear the failure of these systems primarily rose from the misunderstandings and squabbles among IEBC members during the procurement process – squabbles which occasioned the failure to assess the integrity of the technologies in good time.
• The acquisition process was marked by competing interests involving impropriety, or even criminality: and (THE COURT STATED) We recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution of suspects.
• Integrity of the election itself in regards to the technology, there was no other option but to revert back to the manual system.
• The court noted from the evidence that the manual system, though it did serve as a vital fall-back position, has itself a major weakness which IEBC has a public duty to set right. The ultimate safeguard for the voter registration process, namely “the Green Book,” has data that is not backed-up, just in case of a fire, or other like calamity. (THE COURT STATED)We signal this as an urgent item of the agenda of the IEBC, and recommend appropriate redressive action.

Since such technology has not yet achieved a level of reliability, it cannot as yet be considered a permanent or irreversible foundation for the conduct of the electoral process. This negates the Petitioner’s contention that, in the instant case, injustice, or illegality in the conduct of election would result, if IEBC did not consistently employ electronic technology. It follows that the Petitioner’s case, insofar as it attributes nullity to the Presidential election on grounds of failed technological devices, is not sustainable.

·      National Tally Center- the respondents admit that the officers were taken to a different room. The IEBC has an obligation to operate transparently without retreating from public visibility and without disengaging stakeholders of the electoral process. However, the values will operate only in conditions of good order. The Court concluded that the tallying was indeed conducted in accordance with the law, and the relocation of political party agents did not undermine the credibility of the tallying, nor provide a basis for annulling the outcome of the Presidential election.

·      Voter Register- The court found no mystery about the “Special Register” which was used throughout the country and diverse are. There is no proof that this register served any improper cause that favored any particular candidate. 

·      Rejected Votes- With regard to the marked ballot papers that fail to comply with the approved marking format. Article 138(4) of the 2010 Constitution states that the a candidate will be declared President if he receives half of “all the votes cast.” The wording indeed presents a problem of interpretation.  In the 1969 election, the world “valid” is included in the clause.

•   This interpretation is significant to Kenyatta for the reason, as he believed, that if all the “rejected votes” were included in the computation of vote-tally percentages, then it would raise the Odinga’s towards the 50% mark, and lower his own tally to a figure below 50% – the direct effect being that the Court would have to order a run-off election between the two leading candidates.

•   Petitioner in Petition No. 3 of 2013 had moved the Court not only to exclude the “rejected votes” in the Presidential-election tally, but to go further and, on that basis, order a re-calculation and re-tally of the votes properly attributable to each of the candidates. His hopes were that the Court would, in this way, reach a finding that Kenyatta’s percentage vote-tally was significantly above 50%. We have already held, however, that such a process of re-tallying of votes, re-computing and re- assignment of value, falls beyond the election-contest mandate of this Court, and is excluded by the “rule of remoteness”.

·      The Legislature, nor IEBC, had attached any significance to the possibility of differing meanings; which leads us to the conclusion that a ballot paper marked and inserted into the ballot-box, has consistently been perceived as a vote; thus, the ballot paper marked and inserted into the ballot-box will be a valid vote or a rejected vote, depending on the elector’s compliance with the applicable standards.

•  Need to answer the question: why should such a vote, or ballot paper which is incapable of conferring upon any candidate a numerical advantage, be made the basis of computing percentage accumulations of votes, so as to ascertain that one or the other candidate attained the threshold of 50% + 1 – and so such a candidate should be declared the outright winner of the Presidential election, and there should be no run-off election?

  The court interpreted the Constitution in a manner that contributes to good governance.

• Go back to the 1969 Constitution- refer only to valid votes cast, and does not include ballot papers, or votes, cast but are later rejected for non-compliance with the terms of the governing law and Regulations.

·      Possible reliefs- “fresh election”- Determined that if the Court finds the President-elect to be invalid, a “Fresh” election would only involve the candidates that participated in the original poll, rather than new nominations.

Determination of the Petitions

The court came to the conclusion that, by no means can the conduct of this election be said to have been perfect, even though, quite clearly, the election had been of the greatest interest to the Kenyan people, and they had voluntarily come out into the polling stations, for the purpose of electing the occupant of the Presidential office. 

In summary, the evidence, in the court's opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such. 

The court, therefore, chose to disallow the Petition, and uphold the Presidential- election results as declared by IEBC on 9th March, 2013.

Trouble at Kenyatta University and other news

The Daily Nation reports that

Kenyatta University students on Friday went on the rampage after unused election materials were discovered in the institution.

The students smashed windows and broke into the Business Students Service Centre where the materials had been kept.

However, the administration explained that the materials were in a room that had been used as a tallying centre by the IEBC.

The commission had hired the university facilities from February 22 to March 15 and election officials were to clear up yesterday when the rental ended.

The IEBC materials included jackets, stamps, marker pens, ballot boxes, ballot papers for presidential, governor and women representative for Nairobi  County.

Read more at "Riots at Kenyatta University"

Unless the students found actual unused ballots, this is a non-starter!

I do hope there are no riots. From what I saw, the police and military are very well trained. I am praying things do not get out of hand.

In other news, the VOA reports that Raila will be filing his election challenge on Saturday

After the Supreme Court receives the petitions, it will have 14 days to make a ruling.

The Office of the United Nations High Commissioner for Human rights has congratulated the government and people of Kenya for the broadly successful national elections on March 4.  Press Briefing on Kenya

And of course, everyone is reading Ngugi A Dictator's Last Laugh. In a moment of irony, everything in Kenya comes for full circle. The funding for my dissertation was, let us say, suboptimal. Accordingly, I did a stint at Kabarak University for nearly two years in Eldama Ravine, Nakuru, Rift Valley. I taught a book by Ngugi to one of my courses on writing, sort of to stick it to Old Man Moi, who would ride around in a blue van, with a rose corsage in his smart suit. But that, my friends, is a different story. 

If things can cool down, maybe I will have a minute to write about technology! Here is a teaser  IEBC and CORD ordered to agree on documents (Daily Nation)

Cord has also withdrawn a demand that Safaricom release a printout of all messages sent through the hand-held transmission devices; contracts signed with IEBC in connection with the General Election and information transmitted to the IEBC server on March 4 and 5.

Safaricom welcomed the withdrawal of the petition.

That would have been a lot of text messages . . .  

~WMB

Moto Sana, Cool Down

Found a cool image for the above. Check these bad boys out. Maybe they know what they are doing!

Wenzangu, can we make an agreement with each other? Can we just have a conversation? I feel that the coverage of this election is polarizing folks. The media,journalists, observers, activists, and scholars are as stressed out and angry after the election (such that it is) as CORD and Jubilee candidates going in. We all need to just take a deep breath and relax. As my very calm Kenyan cousins are always telling me, "Cool Down."

There is a war of words going on regarding media coverage. I research the nexus between science and technology and the state, and lately, have spent a lot of time on information and communications technology (ICT). ICTs include television, radio, and yes, print media, which is increasingly carried online.

To paraphrase Nelly, "it's getting hot in herre" (C'mon, I am in the diaspora) or as a Kenyan might say, "moto sana."

Poor Michela Wrong, she is just inciting the wrath of the Kenyan blogosphere. But it is a fair matchup, World class author, New York Times blogger and well recognized British journo against the beautiful Kenyan TV journalist Terryane Chebet.

Terryanne is not too happy. Wrong is Wrong You really need to read Terry's piece for yourself, but here is the rundown. She writes "being a reporter in Africa does not make you an expert in African matters." In this sentence, she echoes a sentiment which my former classmate, BBC Reporter Komla Dumor made in a recent talk Telling the African Story. (Disclaimer- I am stealing this link from Terry, but Komla and I went to the JFK School together, so forgive me dada.)

So back to Terry. She is rightfully incensed that for some reason African journalists do not get to run coverage on Africa. I was a little puzzled about this in the coverage of the Kenyan election. Damn, I miss Jeff Koinange. That voice! Koinange at Arise . Why was he not front and center on the coverage? I just do not get it.

Terry is unhappy that Michela Wrong has, in her view, unfairly insinuated that the Kenyan media is corrupt. She notes that "there is a weighing scale that measures the peace and economic future of an entire country against the telling of anxiety that couldn't really be filmed, as really nothing had happened yet."

Okay, so read Terry's article and tell me what you think. Then, there is Gathara. He makes some valuable points. I linked to his article in a previous post, so check out his work. I like his thoughts here, although I am not sure I agree with them.

It is said that truth is the first casualty of war. In this case the war was internal, hidden from all prying eyes. Who cares about the veracity of the poll result? So what if not all votes were counted? We had peace. “The peace lobotomy,” one tweet called it. “Disconnect brain, don't ask questions, don't criticize. Just nod quietly.”

What maturity is this that trembles at the first sign of disagreement or challenge? What peace lives in the perpetual shadow of a self-annihilating violence?


So Gathara, ndugu, I watched the election. I think if not all the votes were counted we need a recount for those contested areas. That is the normal procedure. I am not just nodding quietly, really, I am not. I am just saying that let the process play itself out.


So what I am disagreeing with or challenging is this. Is the fix in? Call me crazy, but I saw a peaceful, free and fair election in the 5 polling stations I was at. That is my story and I am sticking to it. I went to one out of 290 constituencies and then to Bomas. I am waiting to hear about the other 289.

I am beginning to feel like I am considered an "apologist" or a brainless, knee-jerk Jubilee advocate for stating this position.  (I think I made it clear in an earlier post that I hold no truck with UK) But I refuse to let my views conform to the hegemonic discourse when that is not what I saw.  Let's count the 30 constituencies that are having problems. Lets see what happened. Let's let our well trained, highly capable Kenyan jurists have their moment. Lets have a discussion about the spoiled ballots, and how to handle that, and rafiki, lets not panic.


~WMB

Legal Battles in the Kenyan Election

Supreme Court judges from left: Njoki Ndung'u, Jackton Ojwang, Philip Tunoi and Chief Justice Willy Mutunga during a November 15, 2011 sitting.  Photo by PAUL WAWERU. Photo Credit: Daily Nation.

As previously noted, according to the IEBC, Uhuru Kenyatta has (arguably) won the presidency as he received just over 50 percent of the vote, avoiding a runoff election with rival Raila Odinga. At least for now . . . . . Immediately after the IEBC made this announcement, Odinga stated that he would challenge the result with a petition to the Supreme court citing irregularities and asserting that the IEBC supporting a “tainted” electoral process (Mutai). Odinga is expected to file an official petition sometime this week. Odinga has seven days after the election results are announced to file a grievance and the Supreme Court has another 14 days to rule whether a recount or new election is warranted (Wallstreet Journal). 

Many praised Kenya’s election process as it was peaceful. However, the technical problems have raised concerns. These challenges have been confirmed by the IEBC including the electronic voter identification kit failing, forcing the IEBC to switch to manual identification. Also, the electronic transmissions of votes malfunctioned.  (Mutai). The IEBC however, denies any foul play or wrongdoing.

Claims have been made by CORD (Odinga's party) that over 30 constituencies in which voter turn out total was more than 100%. A political consultant told Al Jazeera, “purely from a legal point of view, they have a very strong chance of success- they have pretty good, solid grounds for filing the case” (Aljazeera). Others agreed, Joel Barkan, a renowned African scholar (whom I have met) at the Washington, D.C.- based Center for Strategic and International Studies, acknowledges that the breakdown and delays have given people a right to question the election’s validity. “Odinga’s supporters have legitimate questions that have to be answered before this election an be accepted. Kenyatta may in fact have won the election, but that hasn’t been demonstrated to supporters of Odinga nor to logical people watching the election” (Wallstreet Journal). Professor Barkan, their questions should be answered, but I am a logical person who watched this election.

All are pleased that the dispute has been brought to the court instead of the streets, in my view a real sign that Kenya's legal institutions are strengthening, but some believe the results are credible and nothing good will come from Odinga’s claims or a court ruling. The Court may order the districts that are accused of foul play or errors to recount or order a completely new election, which many urge against as they country is quite fatigued. Even with a recount, tensions are expected to mount. “With Kenyatta's total count just over 8,000 votes above the 50 percent mark, and with around 100,000 rejected ballots, a recount in these areas could cause Kenyatta's tally to drop below the crucial 50 per cent threshold, triggering a run-off election” (Aljazeera). The petition will test Kenya's judicial reforms and the independence of its high court. However, Chief Justice Willy Mutunga declared that the supreme court will handle any challenge in a fair, impartial, without fear, and speedy manner that is in accordance to the constitution (Reuters).

The issue of Kenyatta and his running mate on trial for the ICC is also of major concern. New York Times explains that western powers, including the U.S., have congratulated Kenya on a peaceful election, but has yet to identify, or congratulate Kenyatta directly.  “It is not clear what the West will actually do given that Kenya has become such a strategic partner in a volatile region” (New York Times).

~WMB (with assistance from Jillian Underwood)

Stressed OUT!

Raila Odinga flanked by CORD party members. Photo Credit, Nation Media.

Just finished chatting with a Masai friend and a Luo friend, and both are in an uproar. Good grief. Can this election just stop turning from sweet to sour?

My Luo friend says that if the Supreme Court does not rule correctly, the Luo may secede from Kenya!

My Masai friend says "the CEO and Chairman of IEBC got bribed and were threatened if they refused to take the bribe."

I am really struggling with their version.  I am struggling because if it is true, everything I thought I saw is a sham. I am also struggling because I just do not want to believe things can go this wrong, this fast.


I am not going to rely on rumours. Going back to a technical level, here is my logic.

1. Lets assume that the vote was valid at the polling station level. I think it was, because at the five polling stations I was at all political party agents had to agree on the vote.
2. Let's assume the vote was valid at the constituency level. I think it was, because agents and politicians were there, and scores of observers, and it is quite a trick to get 10 presiding officers to tamper with the vote in full view of the media, observers, political party agents (hundreds) and the candidates themselves.
3. Then, at that point, you have to demonstrate that a sufficient number of votes were tampered between the constituency level and Bomas to really turn the election. Remember that there were 290 constituencies.

I want to hear from the following sources 1) the Carter Center 2) the European Union and then . . . . .

Here is the preliminary EU report EU election observer mission to Kenya

Here is the ELOG report Elections Observer Group

I am just going to hang tight and see what the Kenyan Supreme Court has to say.

~WMB 

Feeling Frustrated with Change in Press Tone about Kenyan Presidential Election

Polling Booth in Thika. Election Day March 4, 2013. Photo Credit: the author.

The happiness just could not last. For seven days, I have been very happy, thrilled to participate in a peaceful, transparent election in Kenya with a clear outcome. Now, the happiness is fading.

What I saw with my own eyes was an election that was more fair and transparent than many American elections that I have participated in. Were there problems? Yes. Did they mar the integrity of the election as a whole? Not in my view.

Of course, I am only one person. We do need to wait and see what the Carter Center has to say. I ran into several Carter Center observers in the course of my travels. Carter Center Congratulates Voters on Peaceful Elections.

I feel a little bit as though the international media was looking for problems, and when they could find violence, they had to focus on allegations of rigging. My friend Mwanicks and I agree on this. Press Statement March 9, 2013 for Immediate Release to the International Media

Al Jazeera is really focusing on the Odinga perspective. Sigh. As I mentioned at the beginning of this blog, I am not a big fan of either Odinga or Kenyatta. I really liked Martha Karua and Peter Kenneth, and would have been very happy with Mudavadi. Of course, they all did not make it. So, I am not starting from a position of having believed that Kenyatta "should" have won. But, as an observer what I saw is that from the very beginning, Kenyatta had a sizeable lead, 10 percentage points at its largest. So, the idea that he did not "win" even when all irregularities are taken into account, is somewhat surprising.

I do not think it is inflammatory or unfair to characterize Odinga as "dramatic." He likes a good narrative, and frankly, from my observations, he likes trouble. I am very glad that he has taken his case to the Kenyan Supreme Court. Kenya's Odinga: From the Polls to the Court It sounds like the case will be presented on Tuesday or Wednesday, which is fast. Again, I am annoyed that the international press is making it sound like that is slow. I am an attorney, and people need time to prepare their cases.

I participated in a symposium on voting, vote counting, at Harvard in 2004. We argued that at the end of the day, manual results are what matter. I cannot figure out how to link it, but here is the cite, and you can pull it up easily from Google. L. Jean Camp, Warigia Bowman & Allan Friedman Voting, Vote Capture & Vote Counting Symposium, Proceedings of the 6th Annual National Conference on Digital Government Research, 15-18 May 2005 (Atlanta, GA). pp. 198 .

Indeed, Al Jazeera notes

After electronic vote tallying meant to provide provisional results within 48 hours collapsed the day after polling day, the system was abandoned, and officials reverted to a manual count - which had always been the planned method to establish the definitive result.

Odinga alleges there was massive tampering with the voter register.  I find that a bit hard to believe, as each voter register was locked into the ballot box at the end of the tally, so I will be interested to see what evidence CORD provides to prove this. 

If the Supreme Court agrees with CORD's evidence, there may be a runoff, which will expensive and destabilizing, and may, in my view, heighten the probability of violence. 

What I feel good about is that my perspective as an official elections observer matches nicely with that of both ELOG and the European Union. 

But such cases [of electoral irregularities] remain isolated examples, said election observers. European Union observers praised Kenya for "demonstrating a strong commitment to democratic elections" in an "ambitious undertaking".

Kenya's own Elections Observation Group (ELOG) said the results announced fell within the expected range for each candidate. "ELOG is confident the process was generally credible," the group's chairman, Kennedy Masime, told reporters.

I just hope that the international media and international multilateral organizations are willing to let Kenya have its success. Let the country, (and the IEBC) have a day in the sun. Let us all get back to work. 

~WMB

Days pass as we wait for the Kenyan Presidential Results

 
Dear readers

I am back in the US now. I feel that my experience watching the Kenyan elections was exhilarating and overwhelmingly positive. Personally, from what I saw, I have a high level of confidence in the IEBC process from what I saw. We still are praying for peace.

When I left Nairobi, over 24 hours ago, people were getting tense waiting for the presidential results. I noticed that the news media were not reporting total percentages for the presidential race anymore. Instead they were reporting official results constituency by constituency. I SPECULATE that this was done to keep things calm both inside and outside of Bomas.

I cannot even get onto the Daily Nation, which is my preferred paper (owned by the Aga Khan). Perhaps the Internet load is too high. The standard is up, and the IEBC is up, although I hear they are updating results to their website manually. I am going to use the East African, which is owned by Nation Media group, as a proxy for the Nation.

I just want to note that, as a matter of logic, the votes from the presidential election must be in and tallied at Bomas. They have already announced the MPs for all 47 counties. Because I watched the votes being counted I know that they counted the presidential race first, before the MP race. Thus, logically, it stands to reason that the numbers of the presidential race are known. I SPECULATE that the delay is being caused by friction between CORD and Jubilee about the final vote count.

The IEBC is reporting results from 14176/31981 of polling stations, in other words, about one half of the votes have been officially verified. The IEBC website, which you can find here  is showing TNA candidate Uhuru Kenyatta leading with 53% with 2,900,198 votes, at the time I am writing this. Conversely, Raila Odinga of the CORD coalition has 2,278,602 votes, for 42% of the total presidential vote. Mudavadi has 3% with 156, 296 votes, Peter Kenneth has 1% with 32,391 votes, and Martha Wangari Karua of Narc Kenya with 20,002 votes or less than 1 percent.

So, the Standard Newspaper is generally considered to be a bit more pro-CORD, whereas the Nation is considered to be a bit more pro-TNA. Nonetheless, the Standard is a reputable media house, so lets see what they say. They are reporting that with results from 153/290 constituencies by 10.20 p.m. Kenya time, Uhuru Kenyatta maintained a lead of  318, 610 votes. The Standard writes that

"Mr Raila Odinga’s Coalition for Reforms and Democracy protested over the incoming results, questioned the process at which they were arrived at, and called for cancellation and fresh start of totaling."

Based on what I saw, I think that the technical failures in the election were dissapointing. However, I think the integrity of the election was very sound, and that the manual process was nearly impossible to rig. I observed tallying at the polling station level, and at the constituency level. I also went to Bomas. It is my view that the only way to rig this election was to steal trucks with ballot boxes (which did actually occur in Mombasa) or to somehow agree at the constituency level among all presiding officers. This would be enormously difficult to pull off, given that at the constituency I went to the POs worked in full view of an audience of 300 political party agents, candidates, and swarms of media and observers. 

The East African (Nation Media Group) is reporting 237 of 290 constituencies reporting. Uhuru Kenyatta has 49.7 percent votes, (5115704) and that Raila Odinga has 43.9 votes (4513233). Under the Kenyan constitution, to win in the first round, a candidate must have 51 percent of the vote, as well as at least 25 Percent of the vote in half of the counties (24). Uhuru has reached this threshold in 31 counties, and Raila has reached this threshold in at least 29 counties. The issue then will be whether Uhuru makes it to 51 percent. 

I ran into Muthoni Wanyeki at Bomas of Kenya thsi week. Writing before the election in the East African, she said Let's hope for the best, prepare for the worst. 

Another issue that was raised is whether the 51 percent should be out of all ballots cast, or out of valid ballots. I will address that in a different post. 

My reporters in the field tell me that people think "Uhuru might win this thing." They tell me that tension in Nairobi is not bad and that "guys jus' want this thing over & done with."

Signing off now to deal with my jet lag. 

~WMB