Essential Guide to Kenya’s High Stakes Election on 8 August
Essential Guide to Kenya’s High Stakes Election on 8 August
Kenya: Avoiding Another Electoral Crisis
Kenya: Avoiding Another Electoral Crisis
A Kenyan woman casts her vote at a mock polling station during a pre-election exhibition in Nairobi, Kenya, on 12 June 2017. REUTERS/Baz Ratner
Commentary / Africa

Essential Guide to Kenya’s High Stakes Election on 8 August

Kenya’s 8 August elections are rapidly approaching and concerns continue to mount over the prospect of electoral violence. In this Q&A, Senior Kenya Analyst Murithi Mutiga looks at what is at stake and assesses efforts to prevent another violent fallout from the balloting.

Kenya is scheduled to hold a general election on 8 August. The vote comes ten years after a disputed presidential poll brought the key East African country to the brink of civil war. Hundreds of thousands were uprooted from their homes and 1,100 killed in weeks of ethnic fighting and street protests that were met by a brutal police response following the election in December 2007. The next election in 2013 passed off relatively peacefully. In 2017, the presidential race between two scions of Kenya’s most prominent political families has drawn the most attention. But local elections for powerful elected governors are also likely to be bitterly contested.

Why are elections in Kenya so closely watched?

Kenya’s position as one of Africa’s major democracies, its importance as the transport and commercial hub of Eastern Africa and its closely contested races – particularly for the presidency – explain the huge interest its elections attract. Just as during the relatively smooth 2013 election, thousands of observers and local and international media outlets will monitor the elections on 8 August.

At the same time, election outcomes in Kenya are hard to call, campaigns vigorously fought and any violent fallout risks spilling over across its borders. In 2007, when a disputed presidential poll resulted in weeks of bloodletting, major highways leading to neighbouring landlocked countries such as Uganda and Rwanda were blocked, sharply increasing the price of essential goods, including fuel. Aid supplies to the eastern Democratic Republic of Congo were also stranded.

What are the prospects the election will pass off peacefully?

Although there are eight candidates contesting the presidency, the 2017 election is essentially a two-way race between the incumbent, Uhuru Kenyatta, 55, son of the country’s first president, and opposition leader Raila Odinga, 72, son of its first vice president. Several factors explain why there is some concern that the country could witness a crisis similar to the one in 2007.

First, the stakes for both campaigns are extremely high. Kenyatta, a member of the largest ethnic group, the Kikuyu, does not want to make history as the first Kenyan president not to secure re-election. On the campaign trail, he has argued that he used the first term to lay the ground for major projects that can have a transformational impact and urged the electorate to give him another five years to complete the job.

Odinga, who has contested the presidency thrice before, is making his last serious stab at clinching office. Odinga hails from the Luo ethnic community whose members chafe at years of exclusion from state power, mainly by ruling elites from the Kikuyu community, and many voters view him as a champion of marginalised groups in the country.

Second, the state is a major player in the Kenyan economy and for that reason the electoral outcome could mean gaining, retaining or losing control over decisions that will determine the allocation of tens of millions of dollars in contracts and business opportunities to the candidates and their allies.

In the past, closely fought elections have stretched the capacity of key institutions to cope and maintain peace.

Third, these elections are expected to be close. Major pollsters indicate a gap of 4 per cent between the candidates, which is within the margin of error. In the past, closely fought elections have stretched the capacity of key institutions to cope and maintain peace.

Fourth, the electoral commission has faced enormous challenges. A commission of inquiry appointed after the 2007 election crisis recommended that commissioners who run the Independent Electoral and Boundaries Commission (IEBC) should be in office at least two years before the vote. Yet commissioners in charge of the 2017 election were only installed at the end of January after those who ran the 2013 poll were ousted from office following opposition-led protests. The commission will seek to implement an elaborate electronic system of identifying voters and relaying results but the tools they will use repeatedly have failed in other African elections, most notably in Ghana in 2012. On 31 July, the electoral commission’s official in charge of managing the electronic equipment was found killed and his body dumped in a town in the outskirts of Nairobi. Police promised a probe into the murder but the shocking development added to the tension in an already febrile atmosphere.

Fifth, local elections – notably for the position of county governor – will be bitterly contested as a result of the devolution of power to such localities, with the danger of clashes in multi-ethnic areas.

What has changed since the last round of fighting in 2007?

The substantial institutional reforms enacted following the 2007 post-election crisis raise the prospect that despite all the worries surrounding the 2017 election, it still could pass off relatively smoothly.

In particular, a new constitution endorsed in a 2010 referendum reduced the power of the presidency and sought to spread power more evenly to institutions such as parliament and the judiciary. Significantly, the new law introduced a system of devolution that guarantees that at least 15 per cent of all national government revenue will be allocated to counties run by elected governors. The governors and elected county assemblies enjoy quasi-autonomy to manage funds channelled to the counties to run local agriculture, health care and early education. They also can allocate funds to local infrastructure projects. The reform, which is extremely popular, has had a dual effect. As noted, it raises the stakes for local elections, and thus the risk of violence. At the same time, it ensures that the all-or-nothing competition that marked past presidential elections is a thing of the past; while the stakes are high for the candidates, they arguably will not be quite as high for voters and citizens insofar as all parts of the country can expect a share of what Kenyans call the “national cake”.

[U]nless there is large-scale failure of electoral equipment on election day or if the defeated candidate refuses to concede, a crisis on the scale of what occurred in 2007 is unlikely.

Moreover, a large number of the killings that occurred in 2007 took place in the Rift Valley, an area where political incitement and disputes over land ownership have driven repeated cycles of violence. This time around, a political pact between elites from the Kalenjin and Kikuyu communities – the region’s two largest ethnic groups – means that major fighting related to the presidential vote is unlikely to occur. That said, tensions surround local-level battles for the position of governor, particularly in the counties of Narok and Uasin Gishu.

Finally, in 2007, the widespread violence came as a shock to virtually all observers. This time, the country is better prepared; there have been major efforts by security forces, civil society and the business community to try to forestall a crisis.

In short, unless there is large-scale failure of electoral equipment on election day or if the defeated candidate refuses to concede, a crisis on the scale of what occurred in 2007 is unlikely.

What are the issues dominating the campaigns?

President Kenyatta’s pitch to voters is that his government has chalked up a number of achievements, particularly expanding national infrastructure. A $3.8 billion Chinese-built railway connecting the port city of Mombasa to Nairobi began operation on 31 May. It is expected to be extended to neighbouring Uganda and Rwanda. The Kenyatta administration has also waived fees in maternity hospitals and expanded electricity coverage in rural areas.

The opposition, however, contends that Kenyatta has failed the test of inclusiveness. They say his administration is dominated by elites from the Kikuyu community and that of Deputy President William Ruto’s Kalenjin group. The opposition also claims that the ruling Jubilee Party has failed to tackle corruption and that the cost of living is too high. The opposition National Super Alliance promises better stewardship of the economy, reduction of the national debt and focused efforts to reduce the cost of living.

What can be done to ensure the election goes off smoothly?

Diplomats and observer missions have been quietly reaching out to the two main candidates, urging them to sign a peace pact committing to renounce violence, adhere to the electoral code of conduct, accept the will of the people as expressed in a fair and credible poll and to challenge results that do not favour them through the court system.

Both leading candidates have convinced their supporters that they are on course to guaranteed victory.

Those efforts should be stepped up. Both leading candidates have convinced their supporters that they are on course to guaranteed victory; neither has prepared its supporters for eventual defeat. That creates a volatile situation that could lead to violence once vote tallies are announced. In this context, the fact that various observer missions will be headed by high profile individuals potentially able to shape the behaviour of political leaders is welcome. The Carter Center mission will be led by former U.S. Secretary of State John Kerry, while former South African President Thabo Mbeki will head the African Union observer team. Ghana’s former President John Mahama will lead a team of Commonwealth observers. These missions can play an important role in helping to guard against the kind of vote tampering in the main candidates’ ethnic strongholds that has marred past elections; in this context, they should heavily deploy in the Central Kenya and Nyanza backyards of Kenyatta and Odinga. Their presence in those areas would be particularly important because political party agents often consider it overly dangerous to deploy in their rivals’ strongholds, potentially opening the way for mischief.

The electoral commission for its part should seek to communicate clearly and effectively before and after the election in order to reduce the risk that spoilers might stir tensions.

Finally, although 180,000 security personnel and electoral officers have undergone training under a program supported by the United Nations Development Programme to promote conflict-sensitive policing and enhance security going into the election, a clear message from the leadership of the security services that they should be non-partisan and avoid using excessive force would help to limit chances of bloodshed.

Officials from the Independent Electoral and Boundaries Commission (IEBC) record the finger prints of a man during the launch of the 2017 general elections voter registration exercise within the Kibera slum in Nairobi, Kenya, on 16 January 2017. REUTERS/Thomas Mukoya
Commentary / Africa

Kenya: Avoiding Another Electoral Crisis

Political tensions are rising in Kenya ahead of elections in August for the presidency and other senior posts. Measures taken now can avert the risk of a repeat of electoral violence that killed hundreds of people in 2007-2008.

Kenyans go to the polls in August, and fierce contests are likely in the race for the presidency and other elections the same day to county governorships and other senior posts. Electoral commission preparations are dangerously behind schedule amid political polarisation, growing distrust and lack of communication between parties. Given the country’s troubled electoral history, it is essential that politicians and other key stakeholders discuss and agree on the measures necessary for credible polls and a way forward on the electoral timeline.

The elections matter well beyond Kenya’s borders. The country is the transport and commercial hub of East Africa, so a protracted crisis would result in significant disruptions further afield. The 2007-2008 post-election violence, which left 1,000 dead after a brutal police response to protests and ethnic killings, shut down international road links and slowed cargo shipments at Mombasa port to a trickle. Fuel prices more than doubled in neighbouring, landlocked Uganda and Rwanda, and humanitarian assistance further afield in the eastern Congo (DRC) was disrupted for weeks. It took a mediation effort led by former UN Secretary-General Kofi Annan and supported by international partners to get the main players to agree to a truce and form a power-sharing government.

In the August 2017 poll, incumbent President Uhuru Kenyatta and Deputy President William Ruto face an energised opposition coalition, the National Super Alliance (NASA), that brings together all major opposition figures. It is led by Raila Odinga, whose campaign is all the more determined because this may be his last contest.

A Level Playing Field?

Neither side has made the job of the Independent Elections and Boundaries Commission (IEBC) easy. In December, Kenyatta’s ruling Jubilee Party used its majority in parliament to push through controversial amendments to the electoral laws with little consultation. They provided for a manual backup to the electronic electoral system in case of equipment failure. This is arguably necessary since no electronic system is perfect, and no technology is foolproof against bad behaviour by politicians.

The government’s unilateral measure sowed mistrust in the electoral process. But opposition leaders have not helped matters by claiming the voting will be rigged by the ruling party and threatening to challenge any outcome to the election that does not favour them outside legal channels. After the opposition claimed that the 2013 elections were fixed, the courts ruled against it.

What has not changed is the behaviour of politicians and the zero-sum nature of political competition.

Following the 2007-2008 crisis, the Independent Review Commission (IREC), headed by retired South African judge Johann Kriegler, concluded that the 2007 polls had been marked by large-scale vote-tampering and issued far-reaching recommendations on the conduct of future elections, including that election commissioners take office at least two years before a general election. The review commission concluded that the technical system for tallying, recording and transmitting results was defective and called for an overhaul. It noted that the vast powers vested in the presidency set the stage for a high-stakes contest that increased the likelihood of violence.

Only some of the proposals to improve the electoral process have been implemented. Most significantly, a progressive constitution was adopted in 2010. A two-round presidential election system now requires the ultimate winner to garner more than 50 per cent of the vote nationally and more than a quarter of those cast in more than half the 47 counties. The process for selecting election commissioners was made more inclusive, and power was devolved to counties whose elected governors and local representatives enjoy a fair degree of autonomy over the deployment of resources disbursed from the centre. The 2013 elections were reasonably peaceful, though the opposition challenged the credibility of the tallying process. Parliament has new responsibilities, including the power to vet most presidential appointees. Members also enjoy oversight of the cabinet through departmental committees.

What has not changed is the behaviour of politicians and the zero-sum nature of political competition. Though the 2010 constitution sought to change the division of power between the presidency and parliament, the head of state remains immensely powerful, able to dole out patronage to supportive elites. When the president’s party commands a majority in parliament, that institution can be reduced to a rubber-stamp assembly. By the same token, devolution in the new constitution has raised the stakes in sub-national contests, with heated competition expected for governorships.

Frequent leadership turnover at the IEBC means there will be a different set of inexperienced commissioners going into an election for the third vote in a row. Some who ran the last two votes left under a cloud, accused either of fiddling results (in 2007) or major corruption and political bias (2013).

While the Kriegler report recommended that commissioners be in office at least two years before an election to enable them prepare adequately, the new team took office on 20 January, a mere seven months before the vote. Delays in parliament, dithering by the executive and confusion within a team picked to interview the new commissioners were blamed for the holdup.

This has left the IEBC, now headed by Wafula Chebukati, a lawyer little-known outside legal circles, facing tall odds to deliver a credible election. Overcoming formidable logistical, technical and legal obstacles within existing timelines and in a febrile, divisive environment will be a major challenge.

Hi-tech Ambitions, Legal Challenges

Kenya’s electoral commission, like many in Africa, hopes to deploy a system with biometric voter identification and electronic results transmission so as to avoid the ballot-stuffing and dubious turnout figures that plagued past elections, particularly in 2007. The IEBC estimates that the vendor that wins the contract will need 60 days to deliver the custom-made integrated electoral management system. It is well behind schedule in finding such a supplier.

Legislative timelines initially called for the system to be in place eight months before the polls, which would have required installation by 8 December 2016. IEBC executives asked for more time, citing stringent procurement requirements. In November, Chief Executive Ezra Chiloba said it hoped to have the new system in place by the end of February. In fact, legal appeals by several of the companies that submitted tenders to supply the system meant that bid papers were only submitted in the first week of February. Now, another vendor’s legal challenge has blocked any decision on the tender.

The installation of a transparent, efficient electoral management system would go a long way to assuaging public concerns.

On 28 February, the IEBC admitted it was out of time to procure the new system on schedule. At a press briefing, its commissioners said, without elaboration, that they would explore using “an alternative voter verification” method. A day later, commission officials said they might procure the equipment directly from a vendor by “single sourcing” or issue a restricted tender that might be less open to legal challenge.

The equipment for transmitting results from polling places to the tallying centre is as important as the voter kits. Past elections were compromised by lack of transparency in tallying and transmitting. The installation of a transparent, efficient electoral management system would go a long way to assuaging public concerns. Unfortunately, rushed procurement, with little lead-time for testing, may set the IEBC up for failure. That would also deepen suspicions in a situation already marked by significant tension between parties. Government steps to limit the role of external partners, such as the International Foundation for Electoral Systems, that can offer valuable technical assistance, have not helped.

On 22 December, the High Court granted an order halting the IEBC’s award of a tender to financial services firm KPMG for verification of the voter register, upholding an opposition petition that accused the IEBC of making the appointment without sufficient consultation. On 13 February, the High Court nullified a tender to a Dubai-based firm for printing ballot papers, citing violations of procurement regulations and electoral laws.

A separate 13 February High Court decision that all IEBC executive decisions made before the January appointment of commissioners were null and void had particularly serious implications for preparations. The commission has appealed, but further court challenges to its decisions, particularly on tendering, remain possible and could create additional election complications.

Racing Against the Clock

The greatest operational challenge the IEBC faces is not lack of internal capacity but that there is little time to put in place all the elements required to make the vote transparent and credible. It needs to be clear-sighted and open about this. It should communicate to the public and international partners what extra help it needs to implement the various technical steps, including fast-tracked procurement of technology.

If it becomes clear, however, that the remaining time, particularly in light of possible legal challenges, is insufficient, it should ask for an extension. The opposition may be angling for a postponement for its own reasons. Nonetheless, from a technical perspective the IEBC could well run out of time to deliver credible polls.

If it becomes clear the commission needs more time, it may be possible to achieve consensus on a delay including by turning to the courts, because all parties have an interest in a smooth election. There is a precedent for this. Although the constitution provides that elections should be on the second Tuesday of August every fifth year, the High Court gave the IEBC more time to prepare for the last election. 

With little time left in which to build public confidence, the IEBC needs a communications strategy to update voters regularly. More importantly, it needs a mechanism to discuss progress with politicians and consult on key decisions it makes on preparations to assure them the vote will be credible, free and fair. 

The commission should expand its Election Preparedness Task Force, currently composed of IEBC officials, representatives of the interior ministry, judiciary and director of public prosecutions. Giving civil society and the opposition greater access to all aspects of preparations would boost trust in the process. 

How Outsiders Can Help

International partners should extend technical and financial help to the IEBC to help it better tackle the challenges. This should, however, be done with nuance, flexibility and complete transparency, in light of unfounded claims by the ruling party that external parties are seeking to influence the electoral outcome. International observers should be deployed in time to monitor crucial stages of the electoral process, such as verification of the vote register and procurement of electoral materials.

The UN Development Programme (UNDP) should expand its technical aid initiatives, including deploying staff with experience handling fraught balloting around Africa to support the commission.

The greatest operational challenge the IEBC faces is not lack of internal capacity but that there is little time to put in place all the elements required to make the vote transparent and credible.

Kenya’s raucous politics shows the relative openness of its democracy. That politicians explicitly mobilise along ethnic lines, however, means elections are marked by high communal tension. Since their words carry extraordinary resonance in a still ethnically fractured country, politicians should weigh them carefully during the campaign. The ruling party should not use state resources to gain an unfair advantage. Opposition leaders should play a constructive role in monitoring and supporting the electoral process and commit to using legal channels to air any grievances.

The main presidential contenders could help by publicly signing a code of conduct ahead of the official start of the campaign, including a pledge to seek legal recourse in the event of disputes and a call to supporters to refrain from violence. A similar step during the heated 2015 Nigerian presidential election campaign helped calm tensions before the vote.

Similar codes of conducts should be organised in counties, including pledges not to use violence and to respect results. Establishing peace committees comprising different community leaders in especially contentious areas would help to bring groups together and limit the risk of communal violence once results are announced. The National Cohesion and Integration Commission should also closely monitor hate speech by politicians on the campaign trail and prosecute offenders.

Disputed polls can carry a major human and financial cost, and three of five elections since a multi-party system was re-introduced in 1992 have been marked by violence. Kenya needs to ensure that the 2017 vote goes smoothly. Faced with the extremely tight timelines, all stakeholders should make their contribution to this.

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