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An Election Delay Can Help Avert Kenya’s Crisis
An Election Delay Can Help Avert Kenya’s Crisis
A Kenyan policeman guards a shipment of presidential election ballots arrived from Dubai ahead of Kenya's October 26th presidential election at the Jomo Kenyatta international airport in Nairobi, Kenya, on 21 October 2017. REUTERS/Baz Ratner
Briefing 132 / Africa

An Election Delay Can Help Avert Kenya’s Crisis

The rerun of Kenya’s presidential elections scheduled on 26 October risks escalating a political crisis, as the main opposition leader has withdrawn and the risk of violence is high. The election commission should seek from the Supreme Court a 30-45 day delay to the vote. Kenya’s political leaders should support such an extension and commit to participate.

  • What’s happening?  On 26 October, Kenya is scheduled to hold repeat presidential elections following the Supreme Court’s annulment of the previous vote held on 8 August. Proceeding in current conditions risks escalating the political crisis.
     
  • Why is the vote contentious?  President Uhuru Kenyatta says he is ready for the vote, while opposition leader Raila Odinga refuses to participate, citing the lack of electoral reform since 8 August. The election commission chairman has said that he cannot deliver a credible election on 26 October.
     
  • Why does it matter?  The risk of clashes between rival supporters or between security forces and protesters seeking to block the vote is high. New violence would be devastating for Kenya, the economic hub of East Africa.
     
  • What should be done? The election commission chairman should petition the Supreme Court for an election postponement of 30 to 45 days, which would permit a delay without violating the constitution. All parties should contest the new vote, accept the outcome or pursue complaints through the courts.

I. Overview

The rerun of Kenya’s presidential elections, scheduled for 26 October, threatens to provoke a serious political crisis. Opposition leader Raila Odinga has declared he will not participate; an Independent Electoral and Boundaries Commission (IEBC) commissioner recently resigned and fled the country; and the IEBC chairman has signalled that he cannot guarantee a credible vote within the expected timeline. The risk of deadly clashes between the two main parties’ supporters, or between security forces and groups seeking to block the vote, is high. Proceeding under current conditions would deepen Kenya’s ethnic cleavages and prolong a stalemate that has already claimed dozens of lives and come at a high economic cost. Kenyan institutions and political leaders should consider a short delay; Odinga in turn should pledge to take part; business elites as well as Kenya’s neighbours and donors should help promote such an outcome.

II. A Contested Electoral Process

Kenya’s Supreme Court 1 September annulled the presidential election held on 8 August. It did not find evidence of widespread fraud or question the outcome – according to official results Kenyatta won 54 per cent to Odinga’s 45 per cent – but found irregularities and illegalities during the IEBC’s results transmission and announcement of tallies. It ordered the electoral body to conduct a new vote within 60 days “in strict conformity with the constitution and applicable election laws”.

As Crisis Group noted shortly after the court decision, the manner in which political leaders have responded to the judgment has hindered preparations for a new poll. Members of Parliament from President Kenyatta’s Jubilee Party have used their majority in the National Assembly to push through contentious electoral reforms. These include provisions that declare that an election cannot be annulled on the basis of a failure to relay or record tallies electronically – key grounds for the Supreme Court’s invalidation of the 8 August ballot. As the European Union (EU) and other observers have indicated, passing such legislation so close to election day runs against global best practice. Parliament endorsed the amendments on 11 October but Kenyatta is yet to sign them into law.

For his part, Raila Odinga responded to a court decision that appeared to vindicate many of his complaints about the election’s administration by drawing up a list of conditions for his participation in a new vote. On 10 October, the IEBC wrote to Odinga saying that it would implement some of his requested changes, including improvements to its IT management and security protocols. The Commission also gave party agents and observers further access to key aspects of the electoral process, including to its IT systems, within the limits permitted by its security protocols. Other demands, it said, such as replacing the service providers for the IT vote management system and using another company to print ballots and returns forms, were not feasible in the time remaining before the vote. That same day, Odinga withdrew from the election. His statement some days later that “no election” would take place on 26 October was interpreted by diplomats, media commentators and the government itself as an implicit threat of violence.

Tensions, already high, have further intensified. Several parliamentarians from Odinga’s coalition, the National Super Alliance (NASA), have been arrested for assaulting election officials and disrupting IEBC training seminars in NASA strongholds. On 20 October, Odinga called on his supporters to end attacks on electoral staff and Jubilee supporters. He also reiterated his intention to boycott the vote and promised to address the nation on the “way forward” on 25 October.

Political disagreements are not the sole impediment to the repeat election. Just as before the 8 August vote, court cases filed by politicians and others and the rulings on those cases may have had a bearing on preparations for the new vote. An 11 October High Court judgment, for example, ruled that all eight candidates in the 8 August vote – not just Kenyatta and Odinga as initially planned – could contest the fresh election. The IEBC has indicated that it has insufficient time before 26 October to reconfigure the electronic results transmission kits to include all candidates.

The IEBC itself is in disarray. Disagreement among commissioners over how to handle the court’s decision and the refusal by some to entertain a postponement were among the reasons cited by IEBC commissioner Roselyn Akombe for her resignation and departure to the U.S. on 18 October. A day later, with public pressure mounting, IEBC chief executive officer Ezra Chiloba, whose departure Odinga has demanded, departed, reportedly on leave. Kenyan media outlets report he will play no role in the repeat election.

III. Delaying the Election Rerun

Kenya has made remarkable progress since the violence after the disputed 2007 elections, notably in the adoption of a new constitution in 2010. But the zero sum calculations of political elites persist. Such calculations are driving Kenya towards a crisis that could imperil both the country’s and the region’s stability. A way forward that can address concerns of both sides and settle the political stalemate sensibly should reflect the following principles:

  • The IEBC chairman should publicly confirm the position he took during an 18 October media conference that holding a credible election on 26 October under current conditions is impossible. He should petition the Supreme Court for a limited extension of 30 to 45 days, which would allow the election to be rescheduled without violating the constitution. Precedent for this exists: the High Court in January 2012 delayed elections by six months, which helped ensure a credible and peaceful vote.
     
  • The Supreme Court should favourably consider such an extension given the IEBC chairman’s own acknowledgment that the commission cannot guarantee a credible vote within the allotted timeline. Because only parliament or the Supreme Court can allow a postponement, and given that parliament would need a minimum of two weeks to debate and pass a bill extending the 60-day window for a new vote, such a call at this point only could come from the court.
     
  • Should it grant a delay, the court ought to state clearly that President Kenyatta would remain in office pending the fresh vote. The constitution is silent on who holds power in the event no election is held within 60 days of the annulment of the previous vote. But insofar as the court, in its 1 September decision, concluded that the president had committed no offence leading up to the 8 August election, he should remain in office until the new balloting occurs. Such a clarification would assuage the concerns of some in his camp who fear the constitutional ambiguity on this point could encourage legal challenges to his position. If the court rejects such a petition, Odinga should accept the decision of a court he praised not so long ago and urge his supporters to abide by the judges’ orders.
     
  • Odinga should participate in a delayed vote without additional conditions. He should renew the welcome public pledge against violence that he made on 20 October. He also should rein in and hold accountable supporters who have attacked election officials, made inflammatory threats to disrupt the election or otherwise broken Kenyan law. He should stress that disputes should be resolved by Kenya’s institutions and not through violence. If Odinga nonetheless decides to boycott a postponed election, he should encourage supporters to stay home rather than disrupt balloting, attack voters or otherwise stoke trouble.
     
  • Both President Kenyatta and Odinga should publicly commit to supporting the IEBC if a new poll date is set and accept the results or take complaints to the courts.
     
  • The Kenyan police chief should issue clear instructions to officers to restrain and arrest – not shoot – demonstrators breaking the law.

In light of the extreme breakdown of trust between both camps and to avert a protracted political crisis, the African Union should help nudge the parties to accept a short delay under the conditions described above to allow the commission to ready itself, and crucially, seek assurances from President Kenyatta and Raila Odinga that they will accept the vote’s outcome.

Many Kenyans are exhausted by the extended election drama, one that already has damaged the economy and further polarised the country. But faced with two bad options – proceeding with a vote despite the boycott of a candidate who won some 45 per cent of votes the last time round; or accepting a limited delay – the latter option is the better one. The IEBC should seek a limited postponement to allow sufficient time to prepare for an election that both main parties contest. Kenya’s political leaders should support such an extension and commit to participate in a new vote.

Nairobi/Brussels, 23 October 2017

Residents walk past a closed shop, with a message calling for peace painted on its doors, as life returns to normal after post-election violence in the Kibera district of Nairobi, on 16 August 2017. AFP/Tony Karumba
Briefing 129 / Africa

How to Ensure a Credible, Peaceful Presidential Vote in Kenya

Following the annulment of August’s historic vote, Kenya must hold repeat presidential elections by 1 November. But rising tensions and the threat of an opposition boycott could result in missing the vote's deadline and risk a constitutional crisis. Both political camps must move away from harsh words and find mutually acceptable electoral reforms to allow elections to proceed.

I. Overview

Kenya must hold repeat presidential elections before 1 November, after the country’s Supreme Court annulled a first vote that took place in early August. The Court’s decision was historic, unprecedented in Africa’s electoral history and applauded across the continent and beyond. It has, however, provoked a response from Kenyan political leaders that has introduced new levels of tension and uncertainty ahead of the fresh vote. Both camps – President Uhuru Kenyatta’s ruling Jubilee Party and his rival Raila Odinga’s National Super Alliance (NASA) – have adopted inflexible positions; both mobilise supporters in the streets. An opposition boycott of the forthcoming vote or failure to hold it before the deadline could provoke a political or constitutional crisis. Graver still are risks of escalating clashes between protesters and security forces.

The immediate challenge is to find a formula, centred on electoral reforms, that persuades Odinga’s camp to participate, is acceptable to President Kenyatta and Jubilee, and does not involve changes to the Independent Electoral and Boundaries Commission (IEBC) so extensive that it is hamstrung and unable to administer the polls in time. One way to break the logjam might be for both parties to embed representatives in the IEBC to observe election preparations. This, together with significant changes to electoral procedures – some of which the IEBC already has proposed, others of which should follow – could increase confidence in the vote. Kenya’s international partners, who retain a degree of leverage and good-will with players on both sides of the divide, could help mediate such an agreement.

Even if the parties find a path to elections, the threat of violence afterwards, whatever the outcome, is high.

Even if the parties find a path to elections, the threat of violence afterwards, whatever the outcome, is high. A firmer stand by Kenyan leaders against hate speech and pledges to campaign peacefully and take any complaints back to the courts after the vote would go some way to lower the temperature. Security forces should prepare to manage protests impartially; holding to account officials that overstepped in August would send a positive signal. International observers should also adapt their approach based on their experiences during the first vote, potentially reviewing the timing of their post-election assessments. With its decision, the Supreme Court made a bold statement about judicial independence and the need for improved and more transparent election administration; Kenyan leaders now need to move away from harsh words and towards compromise.

II. Deepening Fault Lines

In its detailed judgment released on 20 September, the Supreme Court’s majority criticised the Independent Electoral and Boundaries Commission (IEBC) for its conduct of the vote. In essence, they found no evidence of flaws in polling and counting but such widespread “irregularities and illegalities” in results tabulation and transmission as to render the process a violation of election regulations and the constitution. They cited in particular the announcement of final results before the IEBC chairman had received scanned returns forms from over 10,000 polling stations and the IEBC’s refusal to open its server to scrutiny and allow the court to investigate further.[fn]Olive Burrows, “Blame for nullified poll lies squarely on IEBC: Supreme Court”, Capital News, 20 September 2017.Hide Footnote

Fault lines have deepened since the court’s decision. Opposition candidate Raila Odinga feels vindicated by a judgment that largely upheld his petition against the IEBC’s handling of results (official tallies showed his rival, President Uhuru Kenyatta, winning by 54 to 46 per cent). Odinga’s NASA party has presented a set of demands ahead of the new vote.

These include the replacement of several senior IEBC officials, notably its chief executive officer, Ezra Chiloba, more transparency in the electoral body’s IT systems and new returning officers – officials responsible for constituency tallying centres. NASA threatens to not only boycott the fresh vote but to prevent it from taking place at all if these demands are not met. “You cannot make a mistake twice and expect to get different results”, Odinga told reporters on 5 September.[fn]“Kenya’s Odinga rejects election re-run date without ‘guarantees’”, VOA News, 5 September 2017.Hide Footnote On 26 September, his supporters began a round of what they promised would be weekly street protests until Chiloba quits.

[President Kenyatta] portrays the justices as having subverted the people’s will, has labelled them “crooks” and has signalled his intention to clip their wings, a dangerous escalation against the judicial branch.

President Kenyatta, seeking a second and final term, initially adopted a measured response to the judgment, saying he disagreed with it but would respect it. Since then, however, his rhetoric has hardened. He portrays the justices as having subverted the people’s will, has labelled them “crooks” and has signalled his intention to clip their wings, a dangerous escalation against the judicial branch.

On 14 September, a parliamentarian from Kenyatta’s ruling Jubilee Party filed a petition to remove Chief Justice David Maraga from office, only to withdraw it two days later in the face of public backlash. Ruling party supporters also have taken to the streets; on 19 September, they burned tires and blocked the Supreme Court’s entryway. Those actions, Maraga said, were designed to “intimidate the judiciary”. Kenyatta and his Jubilee Party reject NASA’s demands for reforms ahead of the forthcoming vote; Deputy President William Ruto, cites them as proof Odinga has no intention of participating. On 28 September, a group of Jubilee MPs sought to impose their own reforms, proposing legal amendments that would institute significant changes, including dropping the electronic transmission of votes as the primary mode of relaying results.

The IEBC has set the election date for 26 October. But considerable distance remains between the two camps over how the balloting will be conducted. An opposition boycott could lead to a lasting political stalemate. Failure to hold a vote before 1 November could provoke a constitutional crisis, given that Kenya’s 2010 constitution is silent on what would happen in such an eventuality. With memories of past election-related violence still raw, there is a real risk of further clashes between opposition supporters and security forces, with grave potential to escalate.

III. A Workable Compromise

The immediate priority is to find a formula that is both acceptable to both sides and workable for the IEBC. This will be no mean feat, given that both political parties appear to have settled into intransigent positions and the IEBC itself is now beset by infighting, with memos between the chairman and chief executive officer seeking to assign blame being leaked to the media.[fn]Samwel Owino, “Leaked Chebukati memos reveal infighting in electoral body”, Daily Nation, 20 September 2017.Hide Footnote

In principle, the court’s decision should give all sides room to compromise. For Kenyatta, though the decision absolved him personally of any wrongdoing, the scale of the problems it identified casts a shadow over the August 8 results. A new vote, with improved electoral procedures, would be an opportunity for him to try to secure a clearer mandate. For Odinga, the court decided in his favour, vindicating his longstanding complaints about the integrity of Kenya’s electoral system. It did not, however, identify systemic fraud or evidence that the widespread irregularities and illegalities affected the outcome. For the IEBC, the judges did not find any electoral official individually culpable, but did identify major problems with its handling of results and demanded it adopt significant remedial measures, which the IEBC must do in full if it is to restore public confidence.

Both Jubilee and NASA should approach forthcoming talks with the IEBC in a spirit of compromise to find a path forward.

Little time remains before the expiration of the statutory 60-day deadline for holding a fresh election. Both Jubilee and NASA should approach forthcoming talks with the IEBC in a spirit of compromise to find a path forward. Both must avoid acting unilaterally or in ways that undercut the credibility of the vote or prospects for compromise. In that light, Jubilee’s proposed amendments to electoral legislation should be shelved and such changes made only if they enjoy cross-party consensus.[fn]John Ngirachu, “Jubilee Party begins plan to change election law”, Daily Nation, 28 September 2017.Hide Footnote

One way forward might be for both camps to embed an agreed number of party representatives in the IEBC to observe every stage of preparations. This would include, in particular, active monitoring of tallying and results transmission. A compromise along these lines would echo a 1997 deal pursuant to which then-President Daniel arap Moi agreed to the opposition appointing representatives within the electoral commission to avoid an opposition boycott. It could assuage fears of vote tampering and go some way to reassure NASA that the vote will be credible, even in the absence of sweeping changes in the IEBC’s ranks.

The IEBC already has proposed significant changes to protect the integrity of the vote. These include, for example, bolstering the number of United Nations and Commonwealth experts within the electoral commission to help manage the IT system.[fn]This text was changed on 2 October 2017. The former text noted that the IEBC had proposed to the parties that it could request UNDP to print ballot papers and results forms for the re-run; while this was part of the IEBC's proposal to parties, the request was never formally submitted to UNDP. The previous text also said UN and Commonwealth experts would "monitor" the IEBC IT systems; in fact those experts form part of technical assistance teams helping the IEBC manage those systems.Hide Footnote Before the election is held, the IEBC should take further steps to address problems identified by the court. Particularly important is that it develop and publicise its plan for the electronic transmission of votes from all 40,883 stations as required by law. It should heed the judges’ suggestion that it put in place a backup system in case the electronic transmission system fails. And it should clarify how it will handle the polling results transmission from the 11,115 stations not covered by 3G mobile network in the last election. Electoral commission officials in many of these areas sent in results without accompanying scanned forms for verification of the tallies, one of the judges’ chief complaints in annulling the vote.

Before the election is held, the IEBC should take further steps to address problems identified by the court.

Another priority is fresh training for all personnel, notably presiding and returning officers who will serve in polling stations and constituency tallying centres. Moreover, the IEBC should consult with representatives of the two camps on key decisions and procedures; the Election Technology Advisory Committee and Interparty Liaison Committee can serve as avenues for it to do so. The commission should communicate regularly and often to the public, avoiding late announcement of key procedures. The IEBC chair should inform all staff in writing that by law they must share information at the polling station level, including final tallies, with all party agents.

IV. Lowering the Temperature

While a deal between the two camps on election administration would go a long way to cooling the fraught environment, Kenyan leaders should take additional measures. Here Kenyatta and Odinga could borrow a leaf from their counterparts in similarly high-stakes polls in other African powerhouses, Ghana and Nigeria. In particular, they publicly should pledge to pursue grievances related to the forthcoming vote in the courts not the streets. Consensus on election procedures might offer an opportunity for joint statements by the two candidates or other Jubilee and NASA leaders calling for a peaceful campaign. Their very appearance together would do much to reverse the polarisation deepening between the camps.

The leadership of both parties also should invest in greater efforts to curb hate speech. President Kenyatta took a welcome step on 12 September, when he condemned politicians from all sides who engaged in such discourse. That same day, the director of public prosecutions charged two senior figures – Moses Kuria, a Jubilee Party parliament member representing Kenyatta’s home constituency and Johnstone Muthama, a leading opposition politician – with hate speech. Even so, widespread skepticism remains. Few senior Kenyan politicians have been successfully convicted for hate speech and doubts will be erased only when that changes. The office of the prosecutor and judiciary should prioritise such cases and ensure culprits on all sides are prosecuted in a timely and effective manner.

In the same vein, the government ought to call off its harassment of civil society groups. A week after the 8 August election, the board that supervises NGOs ordered the closure of several prominent organisations, including some believed to be planning to challenge aspects of the vote in court. While a high court ruled the decision illegal and forced the government to backtrack, the board’s attempt nonetheless sent a chilling message about the lack of tolerance for such groups’ activities.

A. Securing the Vote and its Aftermath

Outbreaks of violence after the August vote largely were contained, but not before 24 protesters were killed, mainly by the police using force in opposition strongholds.[fn]“24 killed in post-election violence in Kenya, rights group says”, CNN, 13 August 2017.Hide Footnote This time too, regardless of the outcome of the new polling, the potential for bloodshed is significant. Police are likely to deal with protests again, and it is vital they respond in a way that prevents or contains violence.

To improve such prospects, the Independent Policing and Oversight Authority – the state agency charged with probing police abuse – should expedite its investigation of the killing of protesters in August. The inspector general of police should issue instructions, including publicly, to officers to obey Kenyan law and avoid excessive force when handling protests. He also should provide security to figures playing a role in the wider electoral process, including judges. On 19 September, Chief Justice Maraga specifically complained about the failure of the police to heed requests for enhanced security for Supreme Court justices who have endured a campaign of vilification since their decision to annul the election.

B. Lessons for Observers

NASA leveled considerable criticism at international observers, accusing them of rushing to pronounce Kenyatta the winner in August. Here some correction is necessary. None of the preliminary statements by major observer missions could be read as wholesale endorsements of the vote, even if that was the impression created by subsequent media reporting.

That said, observers should adjust their approach based on the August precedent. The judges in the majority concluded that they could not rely solely on observers’ preliminary statements because few missions “interrogated the process beyond counting and tallying at the polling stations”. Given the controversy surrounding the electronic tabulation system, observers should negotiate with the IEBC terms for monitoring that system and focus there as well as on polling, counting and tallying in polling stations.

Observers also could review the timing of their initial statements after the polls, to take into account findings on results tabulation, or at least redouble efforts to make clear which aspects of the process those statements cover. In an interim statement issued on 14 September, the European Union team undertook to improve the clarity of its future communications and to consider allowing more time between the vote and its issuance of a preliminary assessment.[fn]Recommendations for the Re-Run Based on Findings Since the 8 August Election Day”, interim statement, European Union Election Observation Mission Republic of Kenya, 14 September 2017.Hide Footnote

Critics of international observers nevertheless should be careful not to undermine the useful role independent voices can play, particularly in such a high stakes contest. To denounce them or seek their exclusion risks making the rerun more fraught still.

V. Conclusion

Kenyan elections too often are fierce contests for power, with the quasi-existential nature of competition between rival elites leading to violent fallouts before and after balloting. Though reforms after the 2007/2008 crisis and Kenya’s new constitution went some way to addressing the zero sum political competition, politics remain rooted in ethnic polarisation and attempts to capture the spoils of the state.

In this light, the uncertainty over the rerun is particularly dangerous. The two camps ought to agree on a compromise that allows preparations for the vote to advance and prevents a crisis that could spill well beyond Kenya’s borders, given its place as a regional anchor whose port serves economies including those of Uganda, Rwanda and the eastern Democratic Republic of Congo. In light of the extreme polarisation in Kenyan society, diplomats can help bring both camps together, press politicians to play constructive roles and encourage key institutions, particularly the IEBC and security forces to fulfil their duties impartially at an exceedingly delicate time for Kenya.

Nairobi/Brussels, 2 October 2017