The Supreme Court ruling on the Kenyan presidential election

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Kenyan Supreme Court members on the bench

 At the beginning of this week the Supreme Court  released a report that described their full judgment in detail. This report explained that simply there was not enough evidence that supported the claims that the technology errors would have influenced the results of the election (Mayabi-election, 2013). The report also noted that further investigations and possible prosecutions of the IEBC tender committee members who participated in the procurement of faulty technologies during this presidential election is needed (Mayabi-IEBC). In response to the Supreme Court’s decision regarding the IEBC, a website, “People’s Court” that contains all the evidence used in the Supreme Court was launched by Gladwell Otieno and Zahid Rajad from Africa Center for Open Governance and Maina Kiai from Inform Action (Mwangi, 2013). The creators hope the website will allow for members of society to engage in an open debate about the transparency of the government.

I am going to try to closely examine the Supreme Court opinion and get back to you with my thoughts. 

Trying to press on, Kenyatta and the new administration have a long road ahead. On top of facing the challenges with the ICC and a slow economy, Kenyatta must tackle corruption and ethnic divisions during his term. Bonny Khalwale, a newly-elected senator explained that it’s not the tribes that divide the country, but the unequal distribution of resources, specifically land(Ngugi, 2013). According to the United Nations Development Programme (UNDP) Kenya has one of the most unequal societies in the worlds: 30% of all citizens live in poverty.  Therefore, food insecurity, unemployment, and corruption, must, Khalwale argues, be on the top of Kenyatta’s agenda. Economists and policy exerts explain that some of the promises made during Kenyatta’s speech aren’t feasible with the challenging economy, and instead, open dialogue about ethnic divisions and corruption is needed (Ngugi, 2013).

~WMB

Moving past the election controversies in Kenya

 

President Uhuru Kenyatta his Deputy William Ruto share a light moment with Former Prime Minister Raila Ondinga and his running mate Mr Kalonzo Musyoka at State House Nairobi. Photo credit, the Daily Nation

In the past week Kenya is slowly moving past the election controversies and the Supreme Court ruling that upheld Kenyatta as the newly elected president. The Carter Center released a report that heavily criticized the election procedures and the IEBC but also praised the handling of the situation by the candidates and the government. Overall, the Center argued, the results of the election are "an expression of the will of Kenyan voters" (Carter, 2013). I am particularly gratified by the Carter Center's results, because I have said since the beginning that the technological problems were very dissapointing, but the election was free and fair. I hope we can look forward to even better elections in the coming years.

The Chairman of the IEBC, Issack Hassan, stated that despite the problems of this past election that have been painfully scrutinized, they will be continuing the use of electronic technology after a full audit of the equipment is completed. Hassan stressed, “Overall the election was credible and transparent; we did not hide anything; all the failures were seen by the public” (Mayabi, 2013).

Moving forward, on Tuesday, April 9^th , Uhuru Kenyatta, was sworn in as the nation’s fourth head of state. Although the ceremony went well and was peaceful, there were concerns about violence during the ceremony earlier in the week when reports of youth being recruited to create chaos were made. Eighteen areas of potential threat were identified and four people who were accused of being behind the plans were taken into custody (Burrows, 2013). During the Ceremony, criticism of the ICC trials emerged during various speeches. During his speech, Kenyatta made a slight reference to the court but moved quickly on to other items such as giving a list of his goals and plans for his presidency. He congratulated Kenya for a successful election, although presidential opponent Odinga was not in attendance (Gettleman, 2013). Many have hailed Odinga as a statesman for giving a concession speech. In my personal opinion, which you may not like, it is not statesmanlike at all for him to boycott the inaugural. It lacks style, class and distinction. I for one, am dissapointed.

Now that the election is over, the issue of the ICC trial is front and center. Since the election over a dozen witnesses have been dropped from the cases (Ndonga, 2013), there is sharp criticism over media coverage, and the government has been accused of not cooperating with the ICC prosecutors. The ICC prosecutors stress that the country must follow their protocol and no one, even head’s of state, will be given immunity. Attorney General Githu Muigai exclaimed that since the accusations made by the court have serious implications, the complaints of no-cooperation should be on notice to give Kenya a chance to respond, which has not been done (Kaberia- Sabotage, 2013).

Fergal Gaynor, representative of victims in the ICC case against Kenyatta, backed the ICC’s accusations and asked for the Chamber to speed up Kenyatta’s trial due to claims of witness intimidation. Gaynor claims that charges against former head of state of civil service Francis Muthaura were dropped on basis of witness intimidation and the prosecution should have prevented this and its now an incentive to those who seek to undermine the court through bribery and intimidation. Kenyatta’s council has requested the case be referred back to the pre-trial chamber. Fergal expresses that this is just a tactic to delay that he argues, carries enormous risk (Kaberia -hurried, 2013).

Kenyatta and Ruto still claim the ICC trials will not interfere with their work and that their trial is only a minor, and temporary distraction. During his inauguration speech Kenyatta offered words of hope and stressed that politics should not divide the nation. He promised that he will lead all Kenyans to prosperity and peace and his government will be inclusive, which will reflect the “true face of Kenya” (Matata & Omino, 2013). 

During his first 100 days is office, Kenyatta promises that he will reallocate the SH6 billion ($70 million) he put aside for a possible run-off election to a youth and women’s fund. He also promised to provide free maternal health care as well as making laptops the standard for students next year (Matata & Omino, 2013). As an educator who studies technology, until all children in Kenya have the benefit of free standard secondary education, I do not think that laptops are a good investment. The best investment is that every Kenyan has mastered reading, writing and arithmetic at high levels by age 18.

Analysts and economists, however, wanted to focus on Kenya’s economic growth and bridging the gap of inequalities, realistically. On March 5^th Kenya implemented a new devolved system of government where decisions affecting the 47 countries will be addressed at the local level rather than the national and during his speech, Kenyatta has promised to create a million jobs (Gathigah, 2013, Lattus, 2013).  Analysts speculate that the economic environment looks promising and with the implementation of the constitution and government spending, investor’s confidence will likely boost and therefore bring economic growth (Lattus, 2013).  Further, the most logical place to expand jobs is in the government sector, due to the local government offices being built because of the devolved system of government, which will improve distribution of resources (Gathigah, 2013).  Unfortunately, expanding government jobs will not strengthen the Kenyan economy, but will place an additional burden on Kenya's already top-heavy government.

In other news, Kenyatta has made it clear that no cabinet members from Mwai Kibaki and former PM Odinga’s coalition government will serve under him. He stated their tenure has came to an end and all members should vacate their offices immediately. Permanent secretaries and accounting officers will continue to look after affairs until new appointments are made. He did offer since gratitude to the Ministers for their service. Burrows, 2013 Further, Vice President William Ruto has been given the responsibility to coordinate and supervise ministries in the next government. Ruto will name half the Cabinet under the terms of the Jubilee coalition agreement while his URP party has large blocks in both the National Assembly and the Senate. Kenyatta has delegated supervision of government to Ruto, which will allow him to deal with other components of the Presidency. Since both are on trial at the Hague, and have been denied video-conferencing, this consultation is crucial. It was noted that Ruto called former PM Odinga and discussed range of topics, including the need for Odigna to work with the Kenyatta administration to unite the country. It was reported that Odinga wished him nothing but the best in the new position.

Mathenge, 2013

Huge thanks to my fabulous GA, Jillian!

Uhuru na Kazi In the Shadow of the Election

 

Photo of Mzee Jomo Kenyatta, with his son, Uhuru.

 If you do not know by now, the Kenyan Supreme Court upheld the election results this Saturday. Kenyan Supreme Court upholds Kenyatta's Win The decision was unanimous, which gives Uhuru Kenyatta some political capital going into the presidency. 

Uhuru na kazi. This phrase variously means Freedom and Work or Independence and Work. That was the motto of Kenyan independence, and some say it was one of Mzee Jomo Kenyatta's favorite phrases. Kenya attained independence in 1963. That makes 2013 the Jubilee year of Independence.


Uhuru Muigai Kenyatta was born the son of Jomo Kenyatta--who would become Kenya's first President-- in 1961. He was named Uhuru, in anticipation  for Kenya’s upcoming independence

Kenya's National Flag

 I took my time to write about the Court's decision, because I needed time to think about what it meant. I was happy at a visceral level, because as an observer, I saw a free and fair election. So I was happy to know my observations were not mistaken. I was also very happy that the Court took its time to make a thoughtful decision, that they ordered a partial recount, and that the errors which were present in the election were not so severe as to prevent it from being free and fair.  I am sad, however, that we have simply elected another representative of the Black Colonials, the political class, which knows no tribe. Who Will Mourn Wanjiku?

Kenya has proven that it can run a peaceful, free and fair election. Kenya has shown the world that it has strong democratic institutions, a strong and free press, and a competent and even-handed judiciary. Kenya has shown that it can maintain peace in a sea of conflict, even as wars rage in nearby Somalia and the Congo. Hongera. Mungu ni Mwema. 

The election has just ended, however, I also think that now is as good a time as any to reflect on whether dynastic succession is what is best for Kenya. One could argue that even if this election went peacefully and (relatively) fairly, the victors are not likely to implement major political change.  Both Uhuru and Ruto were politically groomed by President Moi. Why former President Moi is a political genius.  Rather, they are likely to maintain the status quo. Their incentive is to protect the "political class" and not the common wananchi.

Now that we have gotten through an election in one piece, the next challenge is to elect a person, whether male or female, who can challenge the extreme inequality in Kenya, and represent the aspirations of the people. Kenya has a robust constitution, with well laid out rules and procedures. The challenge will be to implement its vision, and give the document a lived meaning. This election, with all its flaws, is a good first step.

So now we have had a free election and we have some kind of Uhuru, yet, I suggest, it is not the real Uhuru the Mau Mau fought for. Now comes the kazi, the work. And indeed, it will be kazi kwa bidii. Can we all pull together to reach that vision of a free and independent Kenya that so many have fought for?

Technology and the Kenyan Elections

Dear readers

I do not know if you have seen my op Ed Al Jazeera today.

Here is my big takeaway.

The Kenyan election of 2013 can teach scholars, and observers of democratisation numerous lessons. First, a completely successful election in Kenya as well as other parts of Africa depends on large part on processes with high levels of transparency, consensus, and a careful chain of custody of votes. Second, technology must be carefully tested far in advance of elections, and care should be taken to identify weaknesses. Third, governments and civil society can work together to create independent institutions with clear rules, and well-trained voting officials. Finally, the 2010 Kenyan Constitution has helped to create institutions and laid out rules to promote democracy, which has already led to improved electoral outcomes.

For the rest, click here.

~WMB

Tension as Supreme Court Reviews Election Results

Chief Justice Willy Mutunga (third from left) leads the Supreme Court during the pre-trial conference on March 25, 2013. he other judges are (from left) Njoki Ndung’u, Jackton Ojwang’, Philip Tunoi, Mohammed Ibrahim and Smokin Wanjala Credit. Nation Group.

 

My cousins tell me that Nairobi is at a standstill as all wait for the Kenyan Supreme Court to issue its ruling on Saturday

The Kenyan Supreme Court ordered a recount of votes cast at 22 polling station. The re-tallying is meant to determine if the votes casted exceeded the number of those registered. The court also ordered the inspection of all forms 34 and 36 used by the IEBC in tallying the results.

AFRICOG and Odinga argued before the Supreme Court that various polling stations had increased Kenyatta’s number between when local polling stations announced publically their totals and when the numbers reached the tallying center. Since Kenyatta only hit the 50% mark by 8,400 votes, they are demanding the votes to bee invalidated. For example, in once center, Nyeri Country, they announced publically that Kenyatta won 53,252 votes but the election commission reported that he won 55,726. They are asserting that this would trigger a run-off election. (Washington Post, March 27, 2013)

The African Centre for Open Governance (AFRICOG), which is generally viewed as being on the CORD side, requested that the IEBC produce marked voter registers used during the March 4 election. They allege registers the court currently has in their possession (electronic) are not the registers actually used during the election (manual). Africog’s lawyer argued that over 70,000 voter discrepancies exist between the electronic and marked registers. Counsel Kethi Kilonzo explained that it was only the principal register that could verify the actual number of registered voters. IEBC’s lawyer Paul Nyamodi stated that the request to supply the registers was unreasonable and was filed late, therefore cannot be accommodated. He said that to gather all the registers in the 33,400 polling stations would take about 2 weeks but would gladly avail them at the petitioner’s expense. Chief Willy Mutunga said the court would decide on Wednesday. (All Africa, March 26, 2013)

At the end of the day,  the Kenyan Supreme Court rejected an application by Odinga to carry out a forensic audit of the IEBC information technology systems used during the election. The court stated the application was time-bared as it was filled 4 days after filing the petition. The application would require production of the IEBC’s entire IT system, which is not feasible. If the application would have been submitted at the time of the initial filing, it would have been possible for the court to order IEBC to provide the audit. (March 26, 2013)

Justice Philip Tunoi ruled that an additional affidavit (nearly 900 pages long) filed by Odinga will be removed from the records as they were filed after his initial petition. “The court said that it could not shoulder the burden of the omissions of the petitioners, who failed to make available all the affidavits in time or seek through an oral application, the leave of the court to file the affidavits.” There is no provision for additional affidavits in the Supreme Court rules, it is left to the court’s discretion.

The judges ruling on Saturday will focus on four core issues.

• The first issue, he said, is: Whether the Third and Fourth Respondents (Uhuru Kenyatta and William Ruto) were validly elected and declared as President-elect and Deputy President-elect of the Republic of Kenya, respectively, by the Second Respondent (Ahmed Issack Hassan) in the Presidential Elections held on the 4th of March 2013.
• The second is: Whether the presidential election held on March 4, 2013 was conducted in a free, fair, transparent and credible manner in compliance with the provisions of the Constitution and all relevant provisions of the law.
• The third is: Whether the rejected votes ought to have been included in determining the final tallies of votes in favour of each of the presidential candidates by the First and Second Respondents (IEBC and Chairman Ahmed Issack Hassan).
• The fourth is: What consequential declarations, orders and reliefs should the court grant based on the above determinations. 

 
~WMB

Technology, Transparency and Tallying

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Edge of a computer screen

Two things stand out in the Kenyan General Election of 2013:  IEBC’s late procurement of both services and equipment related to the election, and the fact that all technology should have been tested and debugged far in advance of the election. The failures that occurred were both foreseeable and preventable. Of note was the failure to plan for backup power. Electricity fails routinely in Nairobi, and is often absent in rural areas altogether. In addition, the cell phones and biometric scanners were not procured until approximately one month before the election, and were most likely not tested sufficiently for either load or other stresses.  Professor Makau Mutua asks whether the collapse of the computer systems during vote tallying was due to incompetence, technological illiteracy, or lack of adequate preparation. The most likely answer is a lack of adequate preparation, combined with a failure to follow good advice. 

Despite the massive technological failures, it can be argued that their main impact was a significant delay in reporting the results, not the integrity of the election itself. Importantly, the physical count of votes was the final and official record of the election. The manual voter register worked well to identify voters at the polling station level. No vote count was finalized at the polling station level without agreement of the presiding officer and political party agents. This process was repeated again as all presiding officers reported their numbers to the reporting officer in full view of political party agents and observers at the constituency level. All marked and unused ballots were locked into the transparent tally boxes with final numbers. Those boxes were tracked from polling station level to the constituency level, and eventually flown to Bomas to ensure that the final vote was correct.

The idea that manual ballots trump electronic systems is widely accepted internationally. A symposium on Voting, Vote Capture, and Vote Counting was held at the Harvard Kennedy School of Government in June 2004 in the wake of the counting failures in the Bush vs. Gore presidential race in the US. At that event scholars indicated that best practices for a secure voting system include a hybrid system that includes paper for audit and an electronic system for speed and flexibility. Ironically, their study noted that digital systems can actually produce more complex failure modes and concluded that paper ballots, carefully tracked through a custody chain remain necessary to ensure accurate voting outcomes. The Kenyan election of 2013 illustrates those conclusions well.

Global Justice, Accountability and the Kenyan election

As we move forward please consider the following views by scholars. I am personally familiar with the work of all three of these scholars, and I respect their views.

Jendayi Frazer

Jendayi Frazer--former US Assistant Secretary for State for African Affairs, former Harvard Kennedy School Professor, and current adjunct senior fellow for Africa Studies at the Council on Foreign Relations-- critiques the role of the ICC in the recent Kenyan election. She makes several important points that I think are worth noting. First, she notes that The Supreme Court of Kenya correctly allowed Uhuru Kenyatta to run on February 15, 2013 because the ICC cannot bar candidates. Second, she argues that the ICC was pre-emptively trying to try and convict Uhuru Kenyatta in the court of public opinion. Further, she states that the ICC's legitimacy has been compromised by the fact that Luis Moreno Ocampo has only found cases of atrocities and crimes against humanity in Africa. ICC has Fallen Fromt the High Ideals of Global Justice, Accountability, Jendayi Frazer Daily Nation, March 16, 2013. Most importantly, she states that "Kenya's new institutions must be respected and allowed to operate autonomously."

Mahmood Mamdani

 The world renowned Africanist Mahmood Mamdani, whose work  I teach in my class, ( I recommend Citizen and Subject, among other books) weighs in as well. He argues that there were two key issues in this election, land and the ICC.  Indeed, tragically, the three largest landowners in Kenya are its three presidential families, Kenyatta, Moi, and Kibaki. (As an aside, this fact breaks my heart, and it indicates to me that since Independence, Kenya has been more of a predatory state than a developmental one.) Mamdani notes that the explanation for the ethnic reconciliation which occurred this March the 4th between the Kalenjin and the Kikuyu can be found in the domestic impact of the ICC. He argues that the ICC re-ethnicised Kenyan politics, re-dividing the country into two large ethnic coalitions. Kenya 2013: The ICC Election, Mahmood Mamdani, Al Jazeera March 15, 2013

Makau Mutua

  Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the Kenya Human Rights Commission. (He has an excellent book entitled Kenya's Quest for Democracy, Lynne Rienner Press) He emphasizes the need for the candidates to accept the court's opinion, even if they disagree with it. He notes that for an election to be gree and fair, there must be universal suffrage. All eligible voters must be able to register in credible, verifiable, tamper proof rolls. Candidates must enjoy an environment free of repression. The state must not favor a candidate or doctor the process. He emphasizes the need for the IEBC to be independent. What Is Odinga's Case Against Uhuru Kenyatta? Makau Mutua, The Daily Nation, March 16, 2013 Importantly he notes

"The Supreme Court would most likely nullify the presidential vote if it's proved the numbers tampered with were sufficient to cannibalise the 'will of the voters.' But this is a tall order, and the statistical evidence must be damn near impeccable."


Food for thought, indeed. 

~WMB