RASNA WARAH – Can the IEBC Be Trusted to Deliver a Free and Fair Election?

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It is exactly five years since Chris Msando, the Independent Electoral and Boundaries Commission (IEBC)’s ICT manager, was brutally killed in mysterious circumstances. Msando was murdered after giving media interviews days before the August 2017 election in which he spelt out in detail the various measures he and his ICT team were taking to prevent technical glitches and rigging during the election.

Then there was a lot of hue and cry for justice, but efforts to investigate and prosecute Msando’s murderers have come to naught; they have yet to be found or prosecuted. Chances are they will never be found.

At that time, there were attempts to sully Msando’s reputation and cast doubts about his personal integrity. His body was found alongside that of a girlfriend, whose parents are wondering to this day what warranted the death of their 21-year-old daughter. The killings did, however, send a chilling message.

A history of flawed elections

Kenya has held few elections that have been completely free and fair, and which do not carry the threat of violence. Almost every election in the country has resulted in some form of violence, from the so-called “ethnic clashes” in the Rift Valley in the 1990s to the widespread violence of 2007/2008 that left more than a thousand people dead and hundreds of thousands displaced.

After Mwai Kibaki was hurriedly sworn in as president on the evening of 30 December 2007, the late chairman of the now defunct Electoral Commission of Kenya, Samuel Kivuitu, went on record saying that he did not know who really won that election. According to Ken Flottman, an American lawyer who had the opportunity to observe the 2007 elections first-hand, two things contributed significantly to the violence that followed that election: the ban on live broadcasting ordered by the then Internal Security Minister John Michuki and the government’s decision to pull down the media’s reporting of the results.

Since the events of 2007/2008, Kenyans have lived with the fear of a stolen or rigged election resulting in large-scale violence. This fear has made us wary of scrutinising election-related irregularities too closely. We assume that any dispute regarding irregularities, legal or otherwise, will now be resolved in the Supreme Court that was formed after the 2010 constitution was promulgated. The constitution and the various commissions and bodies that it established, including the Supreme Court, are seen as a bulwark against flawed electoral processes.

But are they? In March 2013 the Supreme Court legitimised what many instinctively believed was an election that was ethically, constitutionally and technically flawed, not least because IEBC officials had the gall to announce sometime around midnight during vote-counting that they would be shutting down the tallying center because they needed to sleep, only to announce the election results in the early hours of the next morning.

Perhaps the most disturbing aspect of that election was that the presidential candidates Uhuru Kenyatta and William Ruto had cases to answer at the International Criminal Court. But this did not deter Kenyans from voting for them. On the contrary, a large number of Kenyans decided that the election would be a “referendum against the ICC”. They even remained silent when the IEBC’s BVR kits failed and manual registers appeared at polling stations. A “green register”, which no one had heard of before, also miraculously made an appearance.

The media at that time had been effectively “silenced” for the sake of “peace” and so did not ask hard questions (such as why the commission was shutting down the tallying center in the middle of vote-counting). Although the Supreme Court ruled that the election was free and fair, scandals that emerged- later regarding the procurement of non-functioning BVR kits and the “Chickengate” scandal involving kickbacks given by a British printing firm (whose directors were prosecuted and jailed in the UK ) did raise suspicions about whether the IEBC’s former office-bearers were corrupt. Later, the auditing firm KPMG revealed that the voters’ register may have contained the names of as many as one million dead voters.

Most disturbingly, the High Court had earlier ruled that it had no jurisdiction to determine the suitability of candidates vying for the presidency as this was the job of the IEBC. So, Chapter Six of the Constitution on integrity and leadership was essentially swept under the carpet. This allowed all manner of shady characters, including Mike Sonko, who was the Jubilee candidate and who was eventually hounded out of office by his own party, to vie for office.

The auditing firm KPMG revealed that the voters’ register may have contained the names of as many as one million dead voters.

In 2017, the public’s trust in the IEBC’s ability to deliver a free, fair and credible election was tested again. Signs that the 2017 election was not going to be free and fair began emerging even before a single vote was cast. The mysterious murder of Msando a week before the election was an ominous sign that things were not going smoothly and transparently. On election day, many of the critical forms 34A and 34B that were used to tally the vote seemed to be missing or had not been transmitted electronically.

The perception that the IEBC had been compromised or was just plain incompetent was strengthened by the IEBC’s own commissioner Roselyn Akombe, who cited various anomalies in how the commission conducted its business after she fled the country and resigned. Some reports also suggested that local and foreign that were contracted to manage firms the electronic transmission of results had dubious reputations. Then, as now, there were many questions being raised about the IT company hired to provide voting technology and services for the elections, and whether the IEBC was really up to the job.

Pegging hopes on the judiciary

The nullification of the August 2017 presidential election results by a majority on the Supreme Court bench renewed hope that the country could resolve electoral disputes and deliver free and fair elections peacefully through the judiciary. The Supreme Court’s decision stunned Kenyans and the world. the economist called it “an astonishing decision” while the New York Times noted that “the ruling offered a potent display of judicial independence on a continent where courts come under intense pressure from political leaders”. Western and other nations, whose election observers were quick to declare this election free and fair, were caught with their pants down.

The Supreme Court sent an important message to the country’s citizens – that no one, not even the president, is above the law and the constitution. As the then Chief Justice David Maraga stated, “The greatness of any nation lies in its fidelity to the constitution and to the rule of law.” Countries in Africa and elsewhere that had become accustomed to electoral fraud and violent elections could now look to Kenya for inspiration.

The Supreme Court sent an important message to the country’s citizens – that no one, not even the president, is above the law and the constitution.

But the subsequent 26 October 2017 repeat election could hardly pass the test of being free or fair because only one leading presidential candidate – Uhuru Kenyatta – was running. The opposition leader Raila Odinga had urged his supporters to boycott the election (which they did) because the IEBC had still not resolved many of the issues raised in the Supreme Court ruling. It was essentially a one-horse race that led to the election of Uhuru Kenyatta and his deputy William Ruto. Many international observers said that postponing the election with a view to making the electoral process more credible would have been a wiser option, which is what Ghana did prior to its 2016 election.

Lessons from Ghana

Ghana managed to avert a looming crisis by significantly improving its electoral processes. In the months preceding the 2016 elections, violence broke out during various electoral processes and politicians began using hate speech in their campaigns. However, Ghana managed to have a peaceful election because of its Electoral Commission, political leaders and civil society took steps to ensure that the elections were credible.

First, the Electoral Commission took highly visible steps to improve the credibility of the voters’ register by cleaning it up and publishing the list of names online. Second, it made it easier for people to vote; Ghanaians could change their original polling station to one that was near the place where they lived or worked. Third, the National Collation Centre, where the election results were tallied, was made more accessible to the media, civil society and party supporters. Local observers stationed in each of the country’s 275 constituencies could also record the election results. Because the polling station data had become so accessible and transparent, Ghanaians knew the results of the election long before they were announced by the commission. Has the IEBC ensured these processes? The IEBC has allowed the media to set up parallel tallying centers at polling stations but it is not clear whether this is enough to ensure transparency. On the contrary, conflicting figures from the IEBC and the media might ignite tensions in a country where there is already so much mistrust of the electoral body.

Ghana managed to have a peaceful election because its Electoral Commission, political leaders and civil society took steps to ensure that the elections were credible.

Many Kenyans, including Raila Odinga, who has the support of the outgoing Uhuru government, thanks to the famous 2018 “handshake” between him and the president, have stated that they are not convinced that the IEBC can be trusted to conduct a free and fair election this month. A KPMG audit report has revealed weak protections against hacking of the voter database and other lapses and irregularities, including tbe registration of 246.465 dead voters. The audit shows that up to 2 million voters on the 2022 voters’ register may not qualify to vote either because they have invalid IDs or because their details do not match existing records. Nearly 5,000 voters have registered more than once using either their Kenyan IDs or passports. These are astoundingly large numbers that could be subject to manipulation and vote rigging in an electoral contest where there is no overwhelming support for just one candidate. Even more alarming is the revelation that there are 14 “ghost” IEBC officials who are not returning officers but who have the authority to transfer, delete, truncate or update the voters’ register. One of these mysterious officials has super access to the register and can change it at will.

As various reports emerge of strange goings-on at the commission, including the mysterious arrival in the country of Venezuelans carrying IEBC materials, hopes of a free and fair election are fading fast. The loud and boisterous defense of the IEBC and its commissioners by the leading presidential candidate William Ruto despite such anomalies has led many to suspect that perhaps some commissioners are partisan and might already have been compromised, or that Ruto has information that the rest of us don ‘t. Moreover, IEBC commissioners whose terms ended or who resigned have not been replaced, and the current chairman, Wafula Chebukati, oversaw a flawed 2017 election inundated with irregularities. Can he be trusted to not repeat the mistakes of 2017? There is also the troubling question of why the IEBC has cleared so many candidates of objectionable or dubious backgrounds. As for the technology, it has failed us twice before. Will it fail again?

The 9 August election will likely be another test for the IEBC, the judiciary and Kenya’s democracy.

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