On 26th December 2007, l left Kenyatta International Conference Centre at about midnight.l had just held a final technical committee meeting with the departmental heads during which we reviewed and ran through a checklist containing the final arrangements for the General elections, the voting of which was due on the following day.
Reports received from our Returning Officers all over the country clearly showed that all was in order and ready for the voting the next day. This assurance gave us confidence that all was set. My colleagues and i confidently looked forward to the real test of our efforts planned to take place on the following days.
I hardly slept on that night, as i anxiously waited for the morning. I prayed and looked forward to a credible, free and fair elections to run according to our plans. The last steering committee meeting had confirmed that all logistical arrangements were in place. These included election materials, the personnel who included our officers, peace committee members, security personnel attached to eck, and other stakeholders including those from the media and observers both local and foreign.
Come 27th December 2007, I left my house at around 5.00.am. My first stop was at a poling centre situated at Uhuru Gardens Schools only a few metres from my resident. l was attracted by a huge crowd of voters orderly lined up, and anxious to cast their votes as soon as the station opened. I at the same time observed that the gates to the school were blocked by some rowdy and what appeared to me like self appointed agents who were guarding the gate, making it difficult for anyone to enter. I noticed that amongst those locked out were some of our election officers. The two police officers in uniform at the station, who were expected to maintain law and order appeared overwhelmed by the crowd. I feared that some of the eck officials locked out of the centre, and, who needed time to organise themselves before opening the station for voting were running late, and that would inevitably have resulted in opening the station late.
Consequently, i decided to intervene by way of persuading those responsible not to do anything that would obstruct the smooth running of elections. It took me some time, but finally, managed to convince them to allow officials on identification to get into the compound.
This was only after introducing myself as an eck Commissioner, the position which appeared to command some respect. I left the station only after ensuring that election officials had been allowed in and ready to start the process of voting.
This early single incident caused me some discomfort. As i drove towards the city centre, I kept wondering whether this was an isolated incident or whether other poling stations were going through similar challenges.
One other incident worth mentioning here was what I saw on Mbagathi road. The road was awash with fliers depicting Raila Odinga as Idi Amin in full military uniform. This was indeed unfortunate considering firstly that the fliers were abusive, and secondly that this was a voting day. The official campaign period was over. I reported this incident to the police officer on duty at the KICC with a request that they quickly investigate the matter.
Missing Name.
On arrival at KICC, I received a call from Tony Gachoka informing me that Hon Raila’s name was missing from the register.Hon Raila Odinga was not only contesting for a Parliamentary seat in Kibera constituency, but was also a Presidential candidate. His name missing from the register was inconceivable. Indeed, prior to this, and during the campaigns, there were allegations that plans were underway by his opponents to disqualify him [Raila] from contesting firstly, as a Parliamentary and consequently, as Presidential candidate. ‘Not possible’ was my response to Gachoka’s shocking information, and, as if to add weight to what he had said, he handed the phone over to Mrs Ida Odinga the wife of Hon. Odinga who repeated the same messege.I advised the two to check all the registers at the centre as I believed that the person who raised the alarm could have based his/her information on a single register in one stream, forgetting that there were other steams at the centre with registers, and in all cases, with names arranged in alphabetical order.
These arrangements were meant to reduce congestion at centres that expected large voter turnout. The plan was to have an average of 500 voters per stream to ease the flow of voting.
In order to facilitate and ensure that these arrangements work smoothly, usher clerks were deployed at the entry of centres with multiple streams. Their brief was to assist in directing the incoming voters to their rightful steams. Presiding officers were not only given adequate briefing in this regard, but were also directed to rehearse the arrangements a day prior to the voting.
It was not clear to me how and why these simple instructions were not followed, assuming it was true that some agent went to a wrong stream in Kibera, and was unable to trace Raila’s name on the register leading to his/her raising the alarm. It sounded unimaginable that Raila’s name could miss from the register. I nonetheless called the Eck Computer Manager requesting him to urgently verify the allegations and get back to me immediately. He did this and cornfirmed that Raila’s names were correctly in the register.
Shortly thereafter, Hon Raila came to our offices at KICC to register a similar concern. It was clear and even more worrying that as at that time, the allegation had already been captured by the media and broadcast all over the country causing a lot of anxiety. It was necessary to urgently correct the misinformation and, assure the country that all was well. I advised Hon. Raila that I had checked and established that his name was indeed on the register, and that all he needed to do was to proceed to Kibera and confirm what I was saying by casting his vote.
I took advantage of the media personnel who had accompanied him to correct the misinformation regarding the missing name, and, as severally done before, appealed to all wanainchi to co-operate with election officials in order to allow for peaceful and smooth voting.
In the meantime, the Chairman of eck Mr S. M. Kivuitu who was touring various poling stations in Nairobi, on hearing the news, headed straight to Kibera to establish the cause of the allegations. He similarly found that Raila’s name was on the register. Indeed his appearance helped to calm the situation which was almost getting out of hand, although he also got a share of the heckling. He further ordered that a single register be readily availed for use/verification by the doubting Thomases.
It was difficult to establish whether this scare was as a result of some agent,s relying on a single register as stated above or whether it was a deliberate propaganda gimmick by some unknown characters bent on causing confusion and unrest.
Free, Fair and Credible Elections, Or Was It?
. In order to make a fair assessment of the 2007 general elections, and the very unfortunate consequences witnessed in the country thereafter, it may be useful to critically examine eck’s preparedness at various stages, as mirrored against the electoral process cycle. In so doing, I wish to focus on electoral activities, and the work done by eck in an effort to enable Kenyans to hold a free, fair and credible elections. The following questions asked at every stage of the electoral process may in my view assist in establishing whether or not the eck was sufficiently prepared to run the 2007 election.
- was the legal framework necessary to guide the electoral process in place, and if not, what action was taken by the eck to complement the then existing laws?
- was the delimitation of electoral units (constituency and ward boundaries) in place, and if not, what corrective measures were taken by the eck?
- was the voter registration and hence voter registers complete and inclusive of all willing eligible voters, and if not, what corrective measures were taken by the eck?
- was the voter education programme conducted to assist wananchi and other stake holders to understand and effectively participate in elections done to their expectations?
- were the preparations for voting, tallying and the announcement of results in place? and finally,
- was there sufficient arrangements for petitions for those who may have been aggrieved during the election process.
Although preparation for the 2007 General Elections picked tempo at the conclusion of the 2005 referendum which was conducted by the eck and praised as free and fair, the actual planning had commenced much earlier upon the conclusion of the 2002 general elections.
Immediately after the elections, the Commission embarked on an evaluation exercise which resulted in several recommendations amongst which was that the Commission prepares it’s Strategic Plan covering the years 2004 to 2008.
The plan as a road map to the Commission’s work was meant to guide and to prioritize all the Commission’s activities. It indeed, proved to be a very useful tool in our preparatory work.
Preparations started by:
- examining the electoral legal framework. This was meant to identify areas of weakness and consequently recommend them to the Parliament with a view to having it to amend and/or enact laws/regulations deemed necessary in improving the management of future elections
- reviewing the constituency and electoral areas (ward) boundaries in order to correct the imbalance in representation which had become a matter of great concern.
- increasing the number of polling stations, while at the same time adding to the number of streams in each station in order to ease congestion and quicken the pace of voting.
- Organizing voter registration exercise to complement the continuous voter registration program. The law required us to conduct such yearly comprehensive all inclusive voter registration exercise.
- While performing the above assighnments, other important activities including the procuring of election materials, recruiting training and deploying of election officials, the co- opting and involving other stakeholders such as the media, civil society, government departments, religious organizations etc in the electoral process were simultaneously being undertaken.
- l) Legal framework.
A committee was set up under the chairmanship of Mr G.K. Mukele the then Vice Chairman of the Commission with a brief to review various sections of the law relating to elections, and make recommendations pointing out areas that required amendments. The committee moved with speed completed it’s assignment and prepared a memorandum covering the electoral law.
The said memorandum was presented to the Constitution of Kenya Review Commission in May 2002. The same recommendations were later given and appear to have been adopted by the Kriegler Commission of inquiry.
The following areas were covered.
- A) Recommendation to the Constitution of Kenya Review Commission. (CKRC)
covered the following areas:
- Conflict resolutions on matters arising from electoral malpractices.
- Service of Petition Documents on Respondents: The issue of presentation and service of petitions to respondents had and continued to be controversial. The requirement that service on respondents must be presented to them personally had in many cases proved difficult to implement especially where respondents were powerful individuals surrounded by security agents. In some cases, respondents fearful of being served merely went into hiding until after the service period. It was therefore recommended that the law be amended to include service by gazette notice or by advertisement in any of the daily newspaper with a nationwide circulation.
It was recommended that the electoral commission expenses should be
charged on consolidated fund, and be subject to the usual government
audit procedures. It was felt that apart from enhancing the Commission’s
independence, such arrangements would expedite the Commission’s operations.
Appointment of Commissioners:
A clear and generally acceptable criteria for the appointment of Commissioners was in our view central to the way the Commission was perceived by the public. While the then Constitution gave the powers of appointing Commissioners to the President, the 1997 IPPG [ Inter Party Parliamentary Group of 1997 ] resolved and gave the responsibility of appointing Commissioners to Parliamentary Political Parties. The sharing was to be done in ratio to Party’s Parliamentary strength. Unfortunately, and perhaps deliberately, the 9th Parliament did not find it necessary to enact this agreement into law, leaving it to remain as a mere gentleman’s agreement subject to abuse.
Establishment of viable and regulated political parties.
Given the important role Political Parties play in any electoral process, it was recommended that they be elaborately catered for in the Constitution and a law be enacted to regulate their activities. The Commission observed that disciplined and well organised political parties with clearly set out ideology and party programmes were a must for a conducive political environment. It was further recommended that those parties that met the set criteria be registered and be assisted by way of funding by the Government. This was considered necessary especially at the formative stages when parties with sound vision for the country needed support for a take off. Funding Parties would also neutralise the self serving practice of rich individuals habit of funding and in a way appearing to own them. The set threshold required to form a political party would deter briefcase politicians whose only purpose of forming political parties is to use them as a means of making money.
Demarcation of Constituencies:
The commission considered that while the provisions under Section 42(3) of the Constitution provided useful guidance in the process of constituency boundary delimitation, a complementary amendment providing for a variation formulae should be added. This would clearly show the % variation from the average population allowable per constituency/ward, ie the minimum and maximum allowable population figures in each constituency and ward bearing in mind the country’s topographical differences.
The contrasting landscape of Kenya necessited a variation formulae allowing for a population plus or minus the country’s constituency average.
Separation of Presidential and Parliamentary election’s day from that of the Local Government.
The commission observed that following an increase in the number of political parties and the consequent increase of candidates participating in any given general elections, there was a resultant major logistical challenge. Voting locations like schools where classrooms are utilised are inadequate to accommodate observers who include agents, media, election officials etc. It was therefore recommended that the law be amended to allow for Local Government elections to be held on different dates from that of the President.
The alternative type of representation [Proportional Representation]
While our current electoral system is based on constituency First Past the Post, consideration should be given to supplement this electoral system with that of Proportional Representation. The Commission recommended a system referred to as Mixed Member Proportional System.
Other recommendations included,
The need to have election calendar enacted in our laws so that voters know in a advance when elections would be held. The Commission was at the time under
Pressure from several groups to consider December period as inappropriate for
Election.
Level playing ground
The need to legislate level playing ground between the parties in Government and those in opposition especially during election period. This would keep in check the common abuse of positions and misuse of public resources by those in power. Public servants wishing to run for elective positions should be required to resign in time to avoid taking advantage of their positions to campaign.
Gender balance.
The Commission considered the disadvantaged position of women arising from our cultural practices, poor economic power, aggressive and even violent political campaigns etc, and recommended that affirmative action be taken in favour of women to accelerate their promotion in elective and other public offices and hence, the need to enact laws that would guarantee gender balance in representation.
- B) Consolidation of electoral law:
It was often difficult to identify relevant peaces of legislation as one had to combine different provisions from different law documents to get a clear and full picture of what was applicable. The laws governing elections were by then covered under:
- The Constitution of Kenya (1998 edition)
- The National Assembly and Presidential Elections Act (Cap 7 Laws of Kenya 1998 Edition)
- Electoral code of conduct
- The Local Government Act (Cap 265 Laws of Kenya,1998 edition)
- The Election Offences Act (Cap 66 Laws of Kenya)
- The Societies Act (Cap 8 Laws of Kenya)
- The Public Order Act ( Cap 56 Laws of Kenya)
- The Kenya Broadcasting Corporation Act ( Cap221 Laws of Kenya)
- The Penal Code ( Cap 63 Laws of Kenya)
- The Constitution of Kenya Review Act (Cap 3A Laws of Kenya) and the
- Constitution of Kenya Amendment Act 2004.
By the time we went for the elections in December 2007, the revision and consolidation of the Elections Bill 2007. in draft form was almost finalised and ready to be forwarded to the Attorney General for his input and thereafter, to Parliament for debate with a view to coming up with a single Act.
- C) Political Party Law:
Consequently, the Commission initiated the convening of meetings with relevant stake-holders, including, political parties, civil society groups, Institute of Education and Democracy, Attorney General, etc who jointly drafted the electoral law. The object of this draft was to regulate the registration, activities and funding of political parties. The Political Parties Act, 2007. which came into force on 1st July 2008. was as a result of those efforts.
- D) Elections Regulations.
The question we may never find an answer to is if Kenya’s history relating to the elections of 2007 would have been different had the 9th Parliament enacted some if not all the recommendation that were proposed by the Commission. Perhaps not. These same recommendations were adopted by the Kriegler Review Commission, and there after belatedly enacted after the nasty election experiences of 2007. There was no will on the part of the political class to enact laws that appeared to check the excesses they had been so much used to.
Even then, the political will to enforce the rule of law inadequate as it may have been at that time was lacking. The selective application of the law coupled with assumed impunity and the resultant immunity of Kenya’s political class from prosecution especially during election time leave no doubt that the conflicts experienced during the previous elections would most probably have been repeated in 2007.
11] Delimitation of electoral units.
The law as at then required that constituency review be carried out every after ten years or after a national census.The last review was held in 1996 just before the general elections. Three years thereafter, the country held a national census in 1999.
It was therefore considered absolutely necessary to review the boundaries before the next elections which were due in 2007.Guided by the Law as contained in the Constitution and Cap 7, the Commission in consultation with relevant actors including Government Ministries, Political Parties, and the University of Nairobi, worked out a formulae on how to review the electoral units. After consultations, and bearing in mind the input of the mentioned stake holders, the Commission proceeded to formulate a formulae to be applied.
Taking the population as central to the review, the Commission decided to use the 1999 official census of 28,686,607 people. This total gave us an average of 136,603 inhabitants per constituency, considering the then 210 constituencies in the country. The commission was also mindful that the law allowed for variations based on differences brought about by topographical features, community of interest, means of communication etc. In consideration of the above, Commission settled on a variation formulae of 30% from the average 136,603. constituency population. In effect this meant that densely populated constituencies like urban areas would each have a population of 136,603 plus 30% giving a maximum of 177,584 people per constituency. On the other end, sparsely populated areas would have a population of 136,603, minus 30% giving a maximum of 95,623 people per constituency.
After developing the formulae and before the Commission embarked on field visits, we as a matter of courtesy briefed the President and all registered political parties. A letter was written to all registered political parties informing them about the formulae we planned to use and seeking their further input if any.
A consultative meeting between the eck and all registered political party leaders was held on 22nd July 2004, with the main agenda being the planned review of constituencies bearing in mind the criteria the Commission intended to use.
In determining the number of additional seats in Parliament, Commission was guided by the population increase between the years 1989 and 1999.
The country’s population according to the 1989 census was 21,448,774 people. By 1999, this figure had increased to 28,686,606.people, an increase of 34%.
Accordingly, we recommended that Parliamentary seats be increased in proportion to the population increase. This would have resulted in an additional 64 seats. However, since there was an increase of 22 seats in 1996, the balance left for consideration would have been 42 extra seats.
This was the figure eck settled for bearing in mind the economic burden required to sustain a large Parliament. Consequently, the 2008 Parliament would have had 252 elected Members of Parliament.
It was hoped that this moderate figure would have gone along way to progressively narrow the gap between the largely populated constituencies and those that are relatively small in terms of population, and thus make a first step towards achieving some level of equity in parliamentary representation.
Armed with this background, Commission carried out a comprehensive review of Parliamentary constituencies and Local Government electoral areas between 2004 and 2006. The review was not without threats. In some places such as Mandera Central, Narok, and sections of Teso, and Eldoret town, among others, locals expressed fear that the democraphy presented a risk of domination by migrant communities and hence were very un co-operative with the commission’s review process.
This in our view presented a challenge that required careful handling considering the sensitivity and hostility which was largely based on ethnicity. This challenge is real and must be carefully and rationally addressed by all of us and in particular, our political and economic giants in order to avoid future disintegration of the nation.
In spite of such incidences, we nonetheless completed our assignment and grafted extra constituencies bearing in mind the views expressed at both local and national levels.
At the Local Government level, we increased civic electoral areas or wards by 368, bringing the total to 2,472 wards countrywide. It was felt that councillors at the grass-root level play a major representation role for their people. In regard to parliamentary seats, we identified 42 most deserving constituencies and, at the same time made an allowance of 18 extra seats to give some leeway to Parliament should it consider it absolutely necessary to increase to a figure beyond the 42.
At the same time, and driven by the need to ease congestion at the polling centres, we increased polling stations from 14,114 to 21,652.This increase effectively meant that there would be on average 500 voters per stream, a figure which we expected would make it possible to complete voting and counting of the votes before sunset.
It was unfortunate that the Ministry responsible for tabling our proposals in Parliament ignored our recommendations and tabled figures that were at variance with the Commission’s. The motion was rejected with the unfortunate consequence of Kenyans holding yet another election with uneven parliamentary representation.
111] Voter registration
In the year 1997, the Commission computerised its voters’ registers. Since then, a master register of voters was maintained. Prior to this, voters were registered afresh every time there was an election. In 2002, and, on the initiative of the Commission, the Parliament enacted a law providing for a continuous voter registration. Consequently, officers were recruited and deployed in all districts to carry out this exercise. Their work involved:
- Registering of new voters consisting mainly young people who had attained voting age.
- Capturing particulars of voters who wished to transfer their voting locations.
- Deleting from the register persons who may have died.
- Replacing of voters lost or mutilated cards
- In conjunction with the District co-ordinator, organising and running voter education activities in their respective districts.
Over and above this, the law required that once every year a massive voter registration be carried out with registration officers operating at voting centres at village level and cover the whole country. However, owing to financial constraints it became difficult to carry out this yearly exercise as required by law. Additionally, the heavy work lord that was necessitated by the 2005 referendum limited the Commission to three major registration exercises as follows:
- Between 15th August and 14th September 2006, we held a registration
- Between 1st March and 30th March 2007, a second national-wide registration exercise was carried out netting, 601,706 new voters, and 716,033 voters transferred to new stations.
- Between 11th June and 31st July, 2007 a final exercise was carried out capturing 1,241,278, new voters.
Removal of dead voters from the register.
As mentioned above, prior to 1997, voters were registered every time there was a general election and hence, the question of names of dead people appearing on the register did not arise.
However, following the 1997 computerisation of registers, a permanent record containing names of registered voters was maintained. This called for regular up-dating of the register by adding newly registerd voters while at the same time deleting the names of those who had died. The latter turned out to be a challenging exercise. It was discovered that not all death in the country were captured by the Registrar of Birth and Death.
The Commission made efforts to use local Provincial Administration officers like chiefs and sub chiefs, however this was equally unsatisfactory as not all death were recorded. In the majority of cases, identification card numbers of the dead were unavailable making tracing difficult.
During the major registration exercise, registration clerks displayed registers containing all registered voter’s names and appealed to the general public to assist in identifying those who had died. Through these efforts, and by the time the 2007 register was ready, we had managed to delete a total of 513,148 diseased registered voters.
It was difficult to establish how many more names of the dead were not captured, especially given that the computerised register had been in use for over ten years. Having observed such challenges, the Commission resolved that in order to solve the problem of having names of dead people on the register, a fresh registration exercise would be carried out immediately after the election in order to have a completely new register starting in the year 2008.
Double/ Multiple registration.
. It is noted with regret that despite the campaign for voter awareness, we still had a very big number of voters who had registered more than once. There were 188,222, voters identified as having registered more than once, and some so repeatedly that they appeared 421,522 times. Indeed all were deleted from the main register and hopefully were not allowed to vote.
Part of the Commission’s post mortem exercise was to make a follow up of these cases with a view to taking corrective measures which could have included taking legal action where evidence was sufficient.
- IV) Voter Education
Voter education was only recognised as essential to the promotion democracy in Kenya during the 1997 Inter Party Parliamentary Group debates and consequently itemised as one of the functions of the eck. In consideration of the important role voter education played in elections, and given that the item was always under funded, the Commission’s Chairman took the initiative and approached various development partiners seeking to raise funds and other resources necessary for voter education.
Among those who were first to come on board were the Netherlands Government, whose ambassador in Nairobi worked very closely with the Commission, and in particular, assisted in the funding of voter education activities prior to the 2002 general elections.
The Australian Government had ealier on undertaken to assist by way of providing funds to the Institute of Education in Democracy, who partnered with Commission to run voter education programmes. UsAid played an important role in the Commission’s capacity building both by providing materials and activities relating to human resource development.
Voter Education Objectives.
In general, voter education programme aimed to achieve:
- Increased participation of Kenyans in the electoral process by sensitising them on the importance of taking part in elections.
- Increased participation of women and other marginalised groups.
- Increased awareness for Kenyans to make informed choices
- Reduced electoral violence
- Strengthened political parties.
- Knowledge on how, when, and where one should vote.
Although there were few cases of delay in the disbursement of funds given that under the arrangements, some cases were to be referred to New York for approval as per UNDP requirements, the aid project enabled various voter education and training programmes undertaken by the Commission and it’s partners to be effectively accomplished.
Voter Education Programme.
In readiness to the 2007 elections, a comprehensive ‘Community Based Voter Education programme was carried out covering the whole country. The program commenced with the training of trainers (ToTs) at a workshop held in Nairobi in early September, 2007. The ToTs later trained approved civil society voter education facilitators under the Election Assistance Programme. This was complemented by training of the Commission appointed batch of ToTs numbering (52), in early October, 2007. The Location based voter education providers (VEPs) were trained at District level from 11th to 20th October, 2007. In total, 5102 voter education providers were trained and deployed two in every Location, for forty days.
The training facilitator were required to develop weekly work- plans for submission to the District Election Coordinator’s office for the purposes of monitoring and follow up. The education providers conducted door to door campaign, utilising religious gatherings, market place gatherings etc to disseminate voter education knowledge. Materials including posters, booklets, stickers, circulars, public address systems, bill boards, banners, etc were extensively used
I believe that more than any other year, voter education activities were done extensively and satisfactorily.
Assistance by our development partners.
As mentioned above, a number of our development partners working under the auspices of UNDP made generous contributions towards our elections. They developed a programme dubbed ‘Election Assistance Programme’ with the commitment to contribute money meant to assist in the funding of various electoral activities amongst which were;
- capacity building for the Commission’s staff.
- voter registration exercise.
- voter education programmes.
- Training media personnel with emphasis on impartial media reporting.
- Funding of Domestic Election Observers.
Some of the countries/organizations that contributed towards this programme included:
USAID, Denmark, CIDA, SIDA, Norway, Netherlands, DFID, UNDP, and EU.
Other countries including Finland, German, France, Thailand, etc had during that period assisted especially in areas of capacity building for the Commission. Their contribution to the electoral process of this country is greatly appreciated.
Consultative meetings
Another activity undertaken in preparation leading to the 2007 General Elections involved the convening of various consultative meetings, conferences and workshops which brought together the Commission and various stakeholders. Key among these activities was the General Elections Conference held from 13th to 15th March, 2007. It was attended among others by political parties, civil society organizations, the media, religious groups, NGOs Universities etc. Three additional preparatory workshops involving Commissioners and senior ECK staff were held prior to and following that conference. These included the Windsor Golf and country club workshop from 4th to 6th December 2006, Holiday Inn workshop held from 31st January to 2nd February2007, and the Utalii hotel workshop held on 27thto 29th August 2007.
The idea was to involve as many electoral stakeholders on board the electoral process as was possible, and to share information/ideas that would contribute in perfecting the imminent elections .
- V) Electarol Petitions
The laws of Kenya allowed individuals or parties that felt aggrieved in an election to petition the courts for redress. This provision must have been provided bearing in mind that where there is political competition, there was likely to be misunderstanding leading to squabbles which sometimes end up in violence.
Regrettably however, this line of action was rejected by the aggrieved party following the 2007 disputed Presidential elections. The reason advanced for this refusal was that they did not expect fair play in Kenya’s Judicial system.
Incomplete electoral process cycle.
The failure by the aggrieved parties to petition the courts meant that the electoral process as explained above was not allowed to run its full cycle. It was brought to an abrupt end following the announcement of the results This was indeed unfortunate. I believe the country’s history would have been different had petition avenue been explored.
CHAPTER TWO
I now wish to recollect events leading to the election day, and up the time the results were announced. Note that this is my personal recollection and in no way reflects the collective thinking of the Commission. I have attempted to recall what I personally observed as one of the Commissioners charged with the responsibility of manning the process and in no way
- I) The Electoral Commission of Kenya.
Eck was composed of twenty one Commissioners and the Chairman. Commissioners were functionally assisted by the Secretariat headed by the Commission Secretary. The secretariat officers were based both at the headquarters and in the Districts.
At the headquarters, the commission organisationally had a plenary committee composed of the Chairman, Commissioners and the Commission Secretary.
This was the policy making organ of the Commission. It was assisted by nine standing committees as shown bellow.
- Liaison and General Purposes.
- Finance and Logistics Committee
- Electoral Programmes Committee
- Public Education and Outreach Committee
- Human Resource and Manpower Development Committee
- Electoral Research Committee
- Audit Committee
- Administration of Political Parties Committee
- Legal and Electoral Reforms
Alongside these committees, ad –hoc committees were sometimes formed to perform specific tasks. Such committees dissolved immediately following the completion of the task.
Temporary Election Officials.
In the run up to the 2007 general elections, the Commission recruited various categories of temporary staff to assist the process. These were recruited on temporary terms with clear understanding that their work would end after the given assignments were completed. Such recruitment was undertaken by the Commission every time there was an election or such similar exercise. The officials recruited fell into various categories including;
- Returning Officers/ Deputy Returning Officers
- Assistant Returning Officers (Administration/Training)
- Presiding Officers /Deputy Presiding Officer
- Polling/Counting Clerks
- Policemen and other security personnel, counting officials,
- Peace committee members
- Other support staff as may be required
Recruitment and training.
All these categories were recruited and trained well enough to run election in an efficient manner. The training function focused mainly on equipping temporary or short term officials with knowledge and skills necessary to perform various electoral activities.
In particular, the training aimed at enhancing the capacity of the officials to deal with new electoral challenges, technologies and processes in order to realize a professionally managed free and fair elections.
For the conduct of the 2007 General Elections, preparatory workshops were held in Nairobi in March and late August, 2007. A core group of trainers was t trained on the legal framework and election processes and procedures. A cascade system of training was adopted starting with seniors and ending up with polling clerks as last tier to undergo training. The District Election Cordinators, (DECs,) Election Officer (EO IIs,) Returning Officers (ROs,) Deputy Returning Officers (DROs) and Assistant Returning Officers (AROs) were trained for five days in the twenty one (21) designated ECK training centers. The officers were at all times updated and/or briefed on emerging issues on elections.
Presiding Officers (Pos) and Deputy Presiding Officers (DPOs) and polling clerks were trained separately for a period of three days. Security officers were trained and briefed alongside the POs/DPOs. Constituency Peace Committee members from all the 210 constituencies in the country were trained on lst December, 2007.
During the training, apart from relying on experienced Commission’s trainers, a professional firm by the name South Consulting was hired by the Project Management Unit under the auspices of the UNDP to supplement the Commission’s efforts. The firm did a splendid job by identifying suitable personnel and training them as trainers before deploying them all over the country to conduct training of election officials.
It is therefore difficult to understand why some of our officers appeared not to have measured to our expectations given the drilling they went through. The causes for the inability to deliver attributed to some of the Commission staff cannot in my view be because of inadequate or lack of proper training.
The adage that one can take a horse to the river, but cannot make it drink may help to explain the unsatisfactory performance attributed to a few of our officers. On the other hand, I have not ruled out the possibility that some officials, temporary as they were, lacked loyalty to the Commission, and hence became vulnerable to external ethnic/political party pressures ending up in compromising their trust.
Deployment
In all cases, Returning Officers (ROs) were deployed outside their home Districts while their deputies worked within their home Districts but outside their home constituencies.
The Presiding Officers (POs) and Deeputy Presiding Officers (DPOs) were posted within their constituencies but outside their localities to limit exertion of influence on voters as the POs are considered as opinion leaders within their local communities.
In some instances, ROs were shuffled to different provinces or districts in cases where the electorate or political leaders expressed discomfort. In some such cases, the security of the officers in question was in jeopardy. In all cases, effort was made to allay local voter fear of our officials It was important that the Commission boost the confidence of voters in the electoral process.
Work plan
. After the successful referendum of 2005, the Commission prepared a detailed list of activities that were to be accomplished before, during, and after the elections. This list was generally referred to as the ‘Order of Events for General Elections’ it was operationalised in September 2006, and ran up to 31st May 2008.
In all, the activities covered the plan for capacity building for the Commission staff, the review of constituencies, electoral areas, and polling stations, the registration of voters, the continued review of electoral laws with a view to introducing legal reforms where necessary, the procurement and distribution of election materials, the recruitment of staff, the training and deployment of election staff, the engagement of the Commission’s partners and stakeholders who included Political Parties, Government agencies, the media, the civil societies, religious organization, and development partners, etc. All these activities were carefully planned and their implementation closely monitored during that period.
Eck’ engagement with the Government..
Immediately following the 2002 elections, the Ministry of Justice and Constitutional Affairs attempted to make the Commission a department in the Ministry. The Commission bearing in mind the provisions of the Constitution regarding it’s independence, resisted that design. A series of meetings were held with the relevant Minister. He finally appreciated the Commission’s concerns/position and decided to let it continue operating independently as before.
However, these cordial working relations with the Ministry continued only up to the 2005 referendum. After the referendum, and for some unknown reasons, the Commission’s working relations with the Ministry deteriorated damaging the trust that had been build over a period of time. It appeared that some inner cycle government functionaries were uncomfortable with the Commission, falsely accusing and blaming it for the loss of the referendum.
It was at about that time that a minister addressing the media said that it was necessary to tame the Commission so as to avoid a situation of it transforming itself into a rogue Commission. Allegations were made to the effect that the Commission’s secretariat was full of one ethnic group, a matter that compelled the Chairman to sent a full staff list to the Ministry of Justice and Constitutional Affairs to show how reasonably balanced the secretarial staff list was. It was not therefore, surprising that later when a decision was taken to disband the Commission, the entire Secretariat was bundled out alongside the Commissioners, causing innocent members of the Secretariat to suffer loss of their jobs. The group was thus condemned and sentenced unheard, human rights consideration notwithstanding.. .
The Ministry further rejected improved recommended terms of service for the Commission despite the fact that State House was supportive.
This strained relations meant only one thing, that serving Commissioners were targeted for removal whenever an opportunity availed itself regardless of their performance. It is also possible that the powers that be were focusing on the Chairman, Mr Kivuitu’s imminent end of his tenure. T he more he was negatively smeared and made to look incompetent, the easier it would be to replace him. While replacement of Commissioners was a normal practice, what became politically contentious was the alleged lack of involvement/consultation between the appointing authority and other political parties when appointing new Commissioners.
It may be recalled that the 1997 IPPG, reached an understanding to the effect that Political Parties would in future be consulted in matters relating to the appointment of Commissioners of the eck. The appointment and replacements of commissioners in 1997 and 2002. was done bearing in mind the agreement and spirit of the IPPG, the then written law not withstanding.
It is worth mentioning here that IPPG was a product of reform efforts fronted by reformists most of who later formed the NARK government. One would have expected them to strictly observe the terms of the agreement, however and surprisingly, some of the leaders who indeed played a central role as reformers and worked tirelessly towards the formation and implementation of the 1997 IPPG agreement chose to totally ignore it once they were in power. .
Consequently, political parties complained bitterly regarding such appointments, stating openly that they had no faith in Commissioners’ ability to impartially carry out a free and fair elections.
This became a pet subject during the subsequent campaigns effectively damaging the Commission’s credibility long before the elections. The less than cordial relations between the Commission and some government operatives in some way filtered in the Commission affecting internal working relationships of members.
In spite this poor working relationship between the Commission and the parent Ministry, the Commission continued to get support from State House. I recall an occasion at State House when the question of some Ministers harassing of the Commission came up, the President’s responded by urging Commissioners not to bother but rather continue focusing on their work.
The need for a good working relations between the Commission, (it’s independence not withstanding), and the Ministry of Justice and Constitutional Affairs and by extension the Government need not be over-emphasised. Cordial working relations is vital to the success of most activities relating to the electoral process. It was therefore as unfortunate as it was unexpected that when preparing for an important national exercise such as elections, the requisite support from the relevant Government department would be less than satisfactory,
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- II) Countdown to 2007 elections.
- the repeatedly talked about Memorandum of Understanding between coalition parties of NARK which was allegedly ignored by one group
- .the campaign promise of putting in place a new constitution within a hundred days of NARK rule, this was not done.
- the campign undertaking by the incoming NARK government that every effort would be made to ensure zero tolerance in corruption. It is common knowledge that corruption continued unabated following the NARK take over, remember Angloleasing, Triton, the Arturus, etc.
The referendum left deep wounds in the two main contending parties. Underlying all these is the historical antecedents linked to Kenya’s fragile multiparty democracy. The goodwill that united Kenyans to oust the KANU regime following the 2002 elections evaporated almost immediately after the formation of the NARK government. The alleged failure by a section of the party to observe the terms contained in the Memorandum of Understanding exposed the deep rooted differences of the an uneasy alliance gobbled up a few days before elections, and with a single purpose of rooting out KANU and by extension, Moi and his nominees. The party or better still parties lacked a common ideology, a common political programme that would have helped to bind members together.
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What followed was a total lack of trust between members of the same party. Accusations and counter-accusations became the order of the day. Hate speech at campaign rallies became evident all over the country.
This became a political game that not only served to alienate party leaders, but also their followers. It is indeed unfortunate that little effort was made towards forging some form of unity of purpose as a country.
The Akiwumu Judicial Commission and the Kiliku Parliamentary Select Committee both of which had earlier made very useful recommendations having identified some of the possible causes of unrest in the country were left to gather dust on the shelves as leaders focussed on fighting supremacy wars.
Political campaigns.
The 2007 General Elections campaign started immediately following the referendum in 2005. The campaign were largely unregulated, and in a number of cases violent.
You may recall the incidents including the one where Hon Ruto and Hon Magara were chased from a political rally somewhere in Nyanza with assailants wielding bows and arrows, another incident where a youth was killed in Kibera while attending a political party rally, yet another where Hon Orengo’s aid was killed and his (Orengo) car set on fire, etc, the list is long.
Cases of hate speech and intimidation by politicians were well documented by the Kenya National Commission of Human Rights. Of particular concern was that in some places, certain groups of people were referred to as ‘madoadoa’ (aliens).This had an effect of indirectly calling for their uprooting, something similar to what had happened following the introduction of multiparty politics, and in particular during the 1992 and 1997 election. It was during this time that the word majimbo was indirectly given the meaning of ethnic cleansing.
Free and fair campaigns leading to free and fair elections is only possible in an environment where political players know and have respect for the law governing election campaigns. Every effort was made to advocate and ensure an even playing field for all parties. This was hardly so, during the 2007 campaigns. The Government took full advantage of it’s incumbency.
Public servants were shamelessly deployed to strategise and campaign for the ruling party, government transport including motor vehicles, aeroplanes, were used during the campaigns. Efforts by the commission to enforce the then electoral code of conduct regulations to control the malpractices yielded no positive response owing to the known weaknesses in the code of regulations governing elections.
As earlier stated, efforts made by the commission to make the code an effective deterrent to such malpractices through legislation, received no support from our legislatures.
Official campaign
As stated above, campaign stated almost two years before elections. The programmed 2007 official election campaign timetable became a mere formality. The stage for official campaign had been set to start at the conclusion of party nomination of candidates.
Nomination of candidates by Political Parties posed numerous challenges. It was witnessed all over the country that party nominations were marred by chaos ending in violence erupted in several places. This was largely owing to poor party organization capability
Party nomination rules and procedures were routinely breached. In several cases, leaders of political parties directed who should be nominated even in instances where such nominees had been rejected or lost at party elections.
This failure to respect internal party democracy, and the will of party members served to poison the campaign environment which was already delicate. In many instances, those aggrieved jumped ship and sought nomination on alternative party tickets. In other cases, the chaotic nominations resulted in more than one candidate receiving party nomination certificates in the same constituencies, putting the Commission in awkward position. The Commission cleared candidates on first come basis, a procedure which witnessed scrambles as candidates holding parallel nomination certificates sought to beat opponents and the legal deadline for submitting nominations. In several such cases, candidates were accompanied by rowdy mobs making the work of the Commission very difficult. The commission’s offices at Universary Towers were at one stage invaded and forcefully occupied by an unruly crowd of candidates and their agents, all bent on forcing the commission to accept their parallel nominations. I believe the violent environment that preceded the December elections was partly due to the fallout occasioned by party nominations.
This period was also marked by widespread tension and intimidation between rival party supporters. As campaigns intensified, there was an escalation of election related violence in areas including Tana River, Mt. Elgon, North Eastern, parts of Nyanza, parts of Rift Valley and parts Central province. It was at about this time that administration policemen were reportedly killed in Nyanza province on suspicion that they were part of a government scheme on a mission to rig elections.
The outbreak of sporadic violence led to the displacement of voters in parts of Laikipia and Nakuru (Kuresoi and Molo) district long before the election time. Consequently, the Commission was compelled to gazette new polling stations in the affected areas. The media reported several cases where women parliamentary aspirants were attacked and discouraged from participating in the electoral process.
.. The appointment of new eck Commissioners was one of the issues that drew a lot of criticism in the countdown to the elections. It was made a petty subject of campaign in opposition rallies. Although the new Commissioners were qualified in all respects, the alleged lack of consultation in their appointment was perceived as advance preparation to rig election. The effect of this orchestrated campaign was the build up of disaffection towards the Commission. Several allegations were leveled against the Commission including alleged printing of parallel ballot papers, tampering with the electoral register, biased hiring of election officials, etc.
It was further alleged that police officers based in Harambee House had irregularly obtained voters registers and were involved in tampering with them. This allegation was made despite the common knowledge that voters’ registers were available for purchase by any interested party. Sale of the voters’ registers was a sign of openness and transparency yet eck was condemned for making these registers available.
It was further alleged that the 14th and 17th floors in Anniversary Towers were being used to plan rigging. Again this was false given that the said floors belonged to different organizations including — UNDP (Project Management Unit) and IFES. both of who had openly assisted the commission and it’s partners including the civil society the media etc in capacity building relating to the electoral process.
It was further alleged that rigging was being planned at Nginyo Towers. A spot check by the police and media the revealed that these allegations were baseless. A further allegation was that issuance of Identity Cards to eligible voters was selective and favored certain areas on the basis of political alignment. On the contrary, issuance of IDs had been speeded up in all areas, The Commission worked very closely with the Registrar of Persons in the issuance of IDs to all interested eligible voters.
All these allegations served to undermine the commissions credibility to such low levels that by the time elections were held, every move by the commission was suspect. The effect of this was increased tension and anxiety amongst some voters during the countdown to voting day.
While such allegations are not uncommon during the countdown to elections and have been made at all previous elections and in particular since 1992, those of 2007 were intense considering what was at stake and the total lack of trust between contending parties. This went a long way to poison the minds of voters. This kind of rhetoric has not only characterized all elections in the recent past, it seems to intensify with the time
Issues arising from campaigns by political parties and candidates.
The 2007 General Elections presented one of the most closely and hotly contested polls in the history of Kenya. Alongside this, there was an avalanche of political party registration with some registering only a few days before the nomination day. As a consequent of the increase of parties, there was a big increase in the number of candidates contesting elections. These compounded with poor internal party organization and their unpredictability, caused major administrative and logistical challenges for the Commission.
A case in point is when the two major parties ie ODM and PNU failed to submit the names of their nominated candidates in time as required by the regulations. Legally the two should have been bared from taking part in elections, politically and given the charged environment, such a move would no doubt have plunged the country into serious violence.
A record 117 registered political parties fielded candidates. There were nine (9) Presidential candidates, 2,548 Parliamentary candidates, and, 15,332.civic candidates, see the comparison table below:
YEAR PRESIDENTIAL PARLIAMENTARY CIVIC.
2007 9 2,548 15,332
2002 5 1,033 7,009
1997 15 880 8,514
Apart from cases of electoral violence mentioned earlier, there were also cases of zoning off of some areas on the basis of ethnicity. It is important to mention here that when it comes to matters of security relating to the electoral process, including the security for candidates, voters, election personnel, election materials and the like, the Commission relies exclusively on established security agents, and in particular, the police. Ideally, the police are expected to apprehend anybody found breaking the law, election campaign not-withstanding. In practice however, leaders and especially political leaders in Kenya operate as if they were above the law and, routinely break them with impunity.
In a way, our security agents have encouraged this especially during electioneering period when electoral crimes are dismissed as (mambo ya siasa,) political and hence require no action.
The commission made every effort to bring the law enforcement agents on board in the run-up to the 2007 elections. Eck convened joint meetings with the Office of the President, the office of the Attorney General, and the Department of Police in an effort to strategize on ways and means of keeping law and order during the campaigns, which hitherto, had been known to be rowdy and in several cases violent.
We were given all assurance that necessary mechanism were in place to check on lawlessness, and that State Counsels in the Districts would be advised to expedite the hearing and determination of cases relating to electoral malpractices. The commission on it’s part spared no effort in educating and thus campaigning for peaceful election. It intensified national media campaign (both print and electronic), with the focus on cautioning Kenyans against electoral violence, bribery, vote buying and selling, etc. In all cases, voters were advised to guard against promoters and/or involvement in such malpractices. The voter campaign prgrmme was expensive in terms of resources invested ie manpower, materials, and time. It is indeed disappointing that the desired results were not realized.
Kenya’s evolving political culture and awareness
Since the first multi-party elections in Kenya in 1992, the level of political awareness has risen considerably. This has partly been as a result of an evolving political culture. Unlike in the past, more Kenyans in the middle class appear to be taking interest in politics. The repeal of section 2A of the Constitution which gave room for re- introduction of multiparty politics in the country appear to have stirred this re awakening. In effect, this led to the proliferation of political parties with a consequent of increased political/party competition.
Additionally, the versatile civic education campaign run by the Commission and other stakeholders including civil society groups, religious groups, the media, etc. aroused political awareness in many people most of whom had since lost interest.
The expansion of democratic space since 1992 has unshackled political debate while presenting new challenges on how best to manage negative elements like hate speech in a country polarized along ethnic lines, regional and political affiliation. Increased political consciousness and civic awareness has led to a growing number of people keen and involved in election matters.
In some cases — especially for the youth — this increased consciousness has made many vulnerable to manipulation and exploitation by politicians not only as a means of getting their vote but also as a force to be used to coarse and intimidate those perceived to be their opponents. Lack of employment for this particular group has contributed to this sad development. In the run-up to the 2007 General elections, politicians paid special attention in targeting the vote of the youth. It was not surprising that later the youth were among the most visible participants and victims of violence following the outbreak of the post-election carnage.
Leadership and Violence;
As mentioned earlier, in the countdown to the General Elections, the Commission held several consultative meetings with members of registered political parties urging them to shun and desist from any activities or pronouncement that could lead to violence. The Commission’s appeal notwithstanding, incidents of violence still broke out mainly involving supporters of rival political candidates and parties. Eck received several complaints on election violence. It investigated some cases involving candidates and as highlighted in this report, imposed penalties on those in breach of the electoral code of conduct.
Electoral violence was in many instances a result of politicians inciting violence against their rivals. Intimidation of rivals through use of force was in many cases not frowned upon and indeed some politicians saw it as a necessary tool in advancing their political ambitions. It was clear that most political parties lacked structures which would have been employed to vet and discipline their candidates and supporters predisposed to violence. Under the circumstances, individual party candidates were left to operate freelance with some breaking the law at will.
Parties appeared unable to entrench a strong and enabling value system that would have fostered tolerance and abhorred violence.
Enforcement of the Electoral Code of Conduct by Eck
It was a legal requirement that political parties fielding candidates in any election sign a code of conduct obliging them to adhere to the terms of conduct therein. In the 2007 general elections, all participating parties signed the code of conduct. Presidential candidates signed a decree requiring them to preach peace and to denounce anyone from their party seen to promote violence during the campaigns.
The commission also formed an ad hoc committee to enforce the electoral code of conduct. The committee was tasked with receiving complaints on violations of the Electoral Code of Conduct. The Committee received reports and complaints from candidates, voters, political parties and civil society groups. Upon receipt of such complaints, the committee summoned the accused political parties, candidates or voters involvement for interrogation.
. The Committee studied the complaints on a case by case basis It heard from the complainants and witnesses who included Returning Officers, candidates, their supporters and the witnessing voters. Those complaints that did not disclose enough evidence for action were dismissed . Penalties were imposed where evidence established breach of the code. Although the police were summoned as witnesses every time there were such cases given their first hand knowledge of the supposed crimes, they failed to show up for some unknown reasons.
The committee handled cases from the following areas:
Mathira
Malava
Ikolomani and Kilgoris.
The committee’s decisions on the respective complaints were read out in the presence of the complainants, the candidates, observers and media. The accused were given ample time to give their side of the story, some of them represented by lawyers. After weighing the evidence presented by each party, the committee found two candidates guilty and fined them Kshs. 100,000 each. The other three candidates with less serious crimes were given verbal warning as provided for in the Electoral Code of conduct.
As if to demonstrate the ineffectiveness of the then code of conduct, no payment was ever received. This was one weak area in the code which the Commission had earlier identified and recommended for a review. It was then felt that the prevalent impunity during election campaigns could only be timely checked if the Commission was empowered to effectively enforce the regulations.
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Security hot sports during the 2007 General Elections
Security concerns in some parts of the country such as Kuresoi, Molo, Tana River and Mount Elgon led the commission to set up a security committee whose purpose was to monitor matters of security concern and their effect on the planned elections. The committee consisted of Commissioners and staff who visited and held discussions with various local security agents and the public. They identified security risk zones and reported back on the measures needed to ensure those affected exercised their right to vote. In Baringo, East Pokot, and Samburu, the teams found that some would be polling stations had been deserted due to raids. Other places visited included,
Tana River District,
Mt. Elgon,
Molo, and
Kuresoi,
The main security concerns identified in the above named areas included cattle raids, tribal clashes grounded in political zoning, land disputes, etc.
As a result of this instability, the Commission made special voting arrangements covering all affected areas. Registered voters were facilitated to vote in areas where they had moved to in the case of Baringo East, Baringo Central, Samburu and Mount Elgon. Parallel polling stations were created in concentrated camps in Kuresoi constituency.
Media participation
ECK accredited a total of 2,964 local and international journalists to cover the 2007 General Election. The journalists were given extensive briefings at the K1CC Media Centre by the Chairman of ECK and Commissioners.
Additionally, and prior to this, the commission had given extensive training and orientation covering the electoral process. However and in particular, the commission emphasized the need to act professionally and more so impartially when covering elections given the apparent polarization, zoning, ethnic character of Kenya’s politics.
The commission working in conjunction with the media Council and the UNDP (Project Management Unit) organized country wide workshops in provincial centers aimed at achieving this goal.
At the stage of accreditation however, the commission noted with concern the big number of journalists recommended for accreditation. The concern was that, based on the large number of accreditation requests, some media houses may have sought accreditation for additional non-professional media personnel. This opened the question as to whether those accredited to relay information to the public on such a momentous national exercise were sufficiently trained for the task. It is a concern that became more apparent when it emerged that different media houses were posting different sets of updates causing confusion and anxiety amongst listeners and viewers. Little attention was made to seek verification from the Commission until the till end of the process. At that late hour, some media houses opted to suspend further announcements and thus waited for results verified by the commission.
Since the 2005 referendum, the role of the media in an increasingly polarised political environment has continued to draw tremendous interest and attention. In 2005, the media — especially the vernacular radio stations (but no less the mainstream media too) — were accused of playing into the hands of politicians. Some ended up playing a divisive and partisan role in the raging debate on the constitutional referendum. The outcome of the referendum left the country deeply divided, but happily, there was no notable violence.
This political division developed into bitter rivalry galvanized by ethnic loyalties. Aware of that type of environment , it was not certain whether the media had taken any lessons from the preceding period to better anticipate and hence play a more responsive and constructive role in a highly polarized political environment. A more balanced, accurate, impartial and fair act by the media would in my view have lessened the animosity that was taking root in the country. Cases were reported of some politicians and their followers vowing to win at all cost with little inclination towards conceding defeat.
This only served to add fuel to the raging fire. In 2007, the media came under close scrutiny regarding its professionalism and adherence to ethical standards especially after the outbreak of violence both before and after the polls..
The upsurge in popularity of call-in talk shows was an area of concern. There was limited opportunity or attention to filter the views of listeners some of whom purveyed hate speech and incitement. In several cases some media houses carried or aired material that painted the Commission in bad light effectively discrediting in advance.
Election Observers.
Observing elections has become a worldwide integral part of the electoral process. The commission regarded observers as key partners in the exercise. Consequently, the Chairman went out of his way to lobby first for funds to finance local observers, and secondly for the Government to invite regional and international organizations, and governments to participate in elections as observers. Some leaders in Government did not take this move kindly.
The then law in Kenya only allowed for election observers as opposed to election monitors. The difference between the two is that while observers observe without expressing their views or concerns about the integrity of the elections openly, (they can discreetly note any discrepancies in the process and report such concerns to the officer in charge but more so to the electoral authority) the monitors can intervene in the process and point out any noticeable shortcomings immediately.
The commission accredited both local and international observers for the 2007 elections.
Local observers under KEDOF were over 1700 .They were deployed as day election. Additionally, 454 constituency observers were similarly recruited. Alongside these, we had observers from the Commonwealth, African Union, European Union, East African Community, almost the entire diplomatic core based in Nairobi etc. The accreditation granted them authority to access eck offices, polling, counting and tallying centers for observation purposes.
It was noted however, that while the majority of the observers kept within the guidelines and briefs given by the Commission, some acted arbitrarily showing open bias towards some parties. A case in point is when some observers from the European Union were seen shouting in protest against the announcement of the result at the tallying center at (Kenyatta International Conference Center) KICC. The press conference given by their leader on 31st December 2007. at the Hotel Inter- Continental did not only go against the observer’s guidelines, but in my view, served to add fuel to the burning political environment in the country.
The role played by some ambassadors accredited to Kenya also left me wondering whether they were observers or monitors. At a critical moment at KICC, a number of us (Commissioners) complained aloud that the Chairman was spending too much time with the diplomats headed by the American Ambassador who appeared to be patronizing the exercise. I have elsewhere in this article appreciated the assistance extended to the Commission by various development partners, however, this in my view was not a license for them to prefect our internal activities. I have served this country as an Ambassador and believe I know pretty well the limits of diplomats when it comes to dealing with internal matters.
CHAPTER THREE
Working arrangements at the KICC
Some time prior to our moving to KICC, the Commission’s technical committee , worked out a duty roster for both the Commissioners and members of the Secretariat. The majority of Commissioners were expected to first supervise the voting process in their respective Provinces, and thereafter, join the team at the Headquarters to monitor the tallying done by the secretariat followed by announcing the final results to the media, observers and agents who were assembled in a hall at the KICC. Prior to this, results were received from the Returning Officers by designated members of the secretariat.
The two were then required to jointly verify the results by checking the arithmetic accuracy of the figures provided in the respective forms. In cases where errors were identified by eck verifiers, Returning officers were required to make corrections and initial/sign accordingly. Note that the Returning officers were the only officers authorised to make such corrections as they would be personally held responsible in case of petitions and/or complaints arising thereafter.
The secretariat at KICC was functionally divided into two main groups.
The first group was responsible for receiving returns from Returning Officers, and verifying them. It was further divided into ten teams, each dealing with twenty one (21) constituencies. In every team, there was a team leader who doubled up as a verifier of information received from Returning Officers.
The second group was responsible for preparing computer printout using the information supplied to them by team leaders of the first group.
Team leaders were assisted by three clerks plus filling assistants and a photocopy assistant. The teams were provided with all necessary logistical materials including stationery, telephone lines, fax lines, and particulars of the relevant Returning Officers they were expected to deal with. The teams were trained and drilled on the procedure for three days. They were provided with checklists for reference whenever necessary.
Officials in group one were required to receive provisional results through fax and or telephone. (Adequate security measures were in-build in the conveyance procedures to ensure the reliability and correctness of the returns. It was absolutely necessary to ensure that only authorised persons accessed the system).
The information thus received and verified was then passed over to the computer group for preparing computer printout. These were then sent back to verifiers for further scrutiny before passing them over to the Overall Coordinator who then passed on the printout to commissioners on duty for announcing.
Monitoring of the voting.
On 27th December 2007,Commissioner Raiji and I were on duty at the KICC. We spent the day monitoring voting activities in the country. We were informed about the late opening of voting in a few stations, in such cases, the Returning officers were required to recover the lost time by extending the voting time.
There were a number of cases where a few ballot paper booklets were found in wrong places. In such cases, we made urgent arrangements including the deployment of Kenya Air-force planes to pick and forward the said booklets to their rightful pooling stations. In all such cases, election materials were under strict custody of the Commission’s staff. In some polling stations in Nairobi, our staff appeared overwhelmed by the large voter turn out. In response to this, we quickly arranged for senior Commission officers attached to KICC, and who at that particular moment had very little work to drive around in the City and provide assistance as and where necessary.
These and other minor teething challenges were quickly solved in time to allow for smooth voting. . At the time of the close of the voting, all appeared to have gone well. Indeed, no serious incident affecting the voting exercise was reported. I understood this to mean that our field officers had managed stage one of the election successfully and were now moving to the next stage which involved the formalities of closing the stations followed by counting, tallying of votes and relaying the results to the Constituency tallying centre.
Presiding Officers were trained on how to close their stations, and thereafter to arrange for the counting. Accordingly, appropriate arrangements were required to provide room for the agents, observers, and any other authorised persons who required to witness the counting and the tallying of results. It was a requirement that after the counting, and loudly announcing the results to the public, relevant forms were to be completed as per the results, and signed by the presiding officer and the agents present. However, it is worth mentioning here that experience has shown that in many cases, agents, especially those of unsuccessful candidates become uncooperative and refuse to sign. Such refusal to sign the relevant forms do not invalidate the forms in question.
After signing the forms, the Presiding Officer was required to pin one copy of the results form in a place accessible to the public for viewing. The rest of the results were then relayed to the Returning Officer at the constituency tallying centre using the quickest means possible.
At the constituency tallying centres, Returning officers like the Presiding Officers at the polling stations were required to make provision for agents, observers and other authorised persons who wished to witness the tallying.
Once the results were received, the RO was expected to announce to those present, the name of the poling station and the results as presented by the presiding officer. Given that results were brought in at different times, the tallying was to be done progressively in keeping with the inflow, starting with the Presidential then Parliamentary, and finally Civic candidates.
After receiving and tallying results from all poling stations in the constituency the RO was required to publicly and formally announce all results and declare the Parliamentary and Civic winning candidates. Immediately thereafter, he/she was required to call the Commission’s secretariat at the KICC tallying centre to give the provisional results of the Presidential candidates. Immediately after announcing, the same RO was expected to move quickly and personally deliver all the results to the national tallying centre at the KICC using the quickest means available.
Tallying at the Constituency Level.
According to reports received from a number of returning officers, the exercise of tallying at constituency level was faced with several challenges.
, A case in point is one in Kilgoris constituency, Transmara District where we had total breakdown of law and order. According to the RO’s report, he was only able to tally votes from 100 out of the 157 polling stations. The moment he declared the results of the first 100 stations received and counted, a group sensing defeat invaded the tallying hall wielding swords and rungus, destroying election materials including completed tallying forms. Eight boxes containing voting materials from eight polling stations were similarly destroyed.
There was a shoot out by the police resulting in casualties. Meanwhile, presiding officers who had yet to deliver their results were blocked along the way and were unable to proceed for fear of their safety. The consequent of all these disorder was the cancellation of election in that constituency.
In Kamukunji constituency, [Nairobi] there were riots by rival groups accusing each other of rigging. Ballot boxes were broken and election materials destroyed.
In Kajiado North, the Returning officer observed that some presiding officers had taken sides and were acting as agents. Violence erupted during the tallying process with supporters of candidates damaging voting materials and for awhile, holding the RO hostage. There were several other cases of disruptions by candidates and or their agents which were reported to us.
In several cases, the RO were forced to ask for security re-enforcement at the tallying centres to control the disorderly and rioters gangs. As a results of all these events counting and tallying took a long time to complete, causing unexpected delay in relaying results to the headquarters at the KICC. It was partly due to this delay that anxiety and emotions of Kenyans all over the country and more so at the KICC were driven to uncontrollable levels.
Provisional vis-a-vis Certified Results
The Kenyan law recognised only results that were certified and delivered to the tallying centre by returning officers, using the statutory forms. However, as earlier mentioned, it took a long time for the returning officers to travel from their respective constituency tallying centres to the national tallying centre in Nairobi. It was as a consequent of this challenge that the Commission decided to introduce the use of telephone and faxes as a faster means of relaying provisional results to the Headquarters. This was to be done immediately after announcing all such provisional results at their centres, including those the President obtained in their respective constituencies. Copies containing the same results were to be displayed for public viewing. This sequence of events was meant to ensure that the results supervised by party agents and other stake holders and announced to the public at the constituency tallying centre, were the same results that were forwarded to Nairobi.
The media meanwhile and dutifully relayed this information to the public, although in some cases, the figures thus announced were inaccurate.
The results that are received using this method are provisional, and this information was made very clear to all observers and the media during their briefing. Ideally, there should be no difference between the two ie provisionaland certified results, however, occasionally the verifiers find arithmetical errors in the returns, and where such errors are detected, the corrections are made by the Returning Officer being the only person authorised to make such correction and sign accordingly.
The Long wait.
According to our estimate, we expected the first batch of results to be at the KICC starting midnight of 28th December 2007. By that time, it was expected that places like Nairobi with less transportation challenges would have completed counting and tallying in readiness for KICC.
The night of 28th December passed without any sign of results. It was not until mid morning of 28th December that the first batch of results were received. Thereafter, results continued trickling in, but at a disappointingly very slow pace. The situation was worsened by the fact that the media was ahead in announcing results from some of the constituencies, however, as mentioned earlier, some of them were not accurate. The deafening silence from our Returning officers despite the fact that they had been facilitated to keep the tallying centre at KICC fully informed regarding the tallying progress in their respective constituencies was unsettling.
It was a matter of great concern not only to us in the Commission but also to observers and party agents who had by then jammed the KICC. I believe, it was as a consequent of that un-explained delay/silence that frustrated and prompted the Chairman to publicly reprimand his field officers.
The morning of 29th started with acrimony. There were bitter exchanges between Commissioner Kigano who was on duty and a section of presidential/party agents who were at the KICC monitoring the returns. It become clear that people were becoming impatient with the slow pace at which the results were coming in. His efforts to offer explanation fell on deaf ears. The tallying centre was by that moment beaming with political activists each group highly suspicious of the other. They took advantage of the presence of the media to make pronouncements some of which bordered incitement. Although the security was tight, it was nonetheless careful not to provoke any group or party some of who were out-rightly unruly.
Again, this was the day when the margin between President Kibaki’s and Hon. Raila’s counted votes started narrowing as shown below;
Hon. Kibaki Hon. Raila.
29/12/2007 at 2:26 am 2,101,849. 2,692,614.
29/12/2007 at 11:12 am 3,416,139. 3,726,247.
29/12/2007 at 2:27 pm 3,842,051 3,880,053
30/12/2007 at 8:26 am 4,510,955 4,313,262.
At some point on 29th December, agents refused to listen to Commissioners announcing results and instead demanded that the Chairman Mr Kivuitu should avail himself in the hall to announce the results and respond to a variety of issues. The most contentious issue at that moment was the discrepancy between the provisional results earlier announced and the certified results submitted by the ROs.
Discrepancy in returns.
. Cases in point included;
Constituency Provisional Certified
Juja Kibaki- 48,293 100,390
Raila – 6,081 13,752
Kieni Kibaki 54,377. 72,054.
Raila—- 556. 580
Lari Kibaki 41,213. 49,276.
Raila 266. 457.
Limuru Kibaki 40,788. 48,384.
Raila 3,144 2,934.
The RO for Juja explained that when he gave provisional results, he had only tallied about 40% of the total polling stations in the constituency. The Kieni and Lari RO explained that their computers failed to capture all polling stations. As a result, the provision results relayed to KICC were minus voters from 22 polling stations for Kieni and 8 stations from Lari. The final scrutiny made by the respective Returning officers manually revealed the anomalies which were corrected accordingly. There was also a case of Molo, where an impostor assumed the position of the RO and claimed that the certified results announced were wrong. an impostor peddling lies at.
With a few exceptions which were pointed out following the audit which was carried out on the night of29th December, from about 9 pm to about 6am, it was confirmed by Returning Officers, that the certified results submitted were the same results as those announced at their respective tallying centres prior to their coming to Nairobi. I have no evidence that unlawful changes were made to the returns at the KICC as alleged in some circles.
The chairman made every effort to explain the circumstances under which provisional results earlier announced to agents and observers differed from the submitted certified results. All such explanation fell on deaf ears. It was at this stage, and in order to respond to the growing suspicions, that it was decided to conduct an audit of all results so far received. This was done throughout the night of 29th December 2007. This verification exercise started at about 8.30.pm and run up to about 6 am the following day.
The audit.
The audit team was composed of the following;
PNU
- Hon. Martha Karua
- S. Nyamweya.
- Hon. J. Orengo.
- Dickson Ogola.
Fred Muteti
KEDOF
- Hassan Shanman
ASSOCIATION OF PROFESSIONAL SOCIETIES IN E.A.(APSEA)
- Julius Melli.APSEA.
- Ben SihanyaLSK/APSEA.
- Raiji
- J. Matagaro
- D. Ndambiri.
- J. Sitonik
- S. Maugo
- P. Tutui.
- SecretaryJemimah Keli.
- Concern regarding missing Form 16 in some constituencies. This turned out to be a case of misfiling. A further scrutiny carried out immediately thereafter found all the forms with proper entries.
- Concern regarding discrepancy between provisional results and certified results in a few constituencies. I have already referred to the explanation given by the respective Returning officers. Additionally, there were a few cases with arithmetical errors, and such were corrected at the verification stage.
- Concern regarding missing signatures for agents on statutory forms in some constituencies. As explained earlier, the agent’s signature was useful but not mandatory. It has been observed that quite often, agents of unsuccessful candidates in frustration refuseto append their signatures.
- Concern over what looked like abnormally high % voter turn out in some regions especially in Mt Kenya and Nyanza regions. This is one area that needed scrutiny. Unfortunately, the circumstances following the announcement could not allow us to undertake such an exercise.
- Concern over no returns of some constituencies. This was caused by serious insecurity witnessed in some part of the country at that time, some RO’s were unable to travel by road. Arrangements had to made to fly them to Nairobi on 30th December.
- Concern over failure on the part of some RO’s to counter sign official documents where arithmetical changes were effected. This was unfortunate and indeed irresponsible on the part of those concerned. According to the audit results however, the changes in question which were not signed would not have affected the final results.
In response to item one above, Commissioners tasked themselves to crosscheck with the officers the information received from the audit that some forms were not traceable during the audit.
After crosschecking, it was reported that all forms were available except for those from areas where Returning Officers were experiencing travel problems owing to outbreak of violence.
It was possible that some papers were misfiled and not readily traceable given the urgency and the very limited time within which the audit team was expected to complete the exercise. Commissioners with the assistance of desk officers easily traced all forms.
In regard to item five regarding no returns, arrangements were quickly made to fly Returning Officers reported to have been stranded owing to violence that were being witnessed in some parts of the country. Their returns were included in the final tally.
Meeting with Political Parties.
While Commissioners were working on issues raised above on the morning of 30th December, ODM leaders came to our offices to register their complains arising from the previous night’s audit. The Chairman, Mr Kivuitu while accepting the request to hold a meeting, he advised them that a discussions relating to the audit could only be held in the presence of all political parties concerned. Consequently, a meeting was quickly arranged at the KICC VIP lounge. With the exception of President Kibaki and Hon. Raila, all other top political leaders from the contesting parties attended the meeting.
At the meeting, Mr Kivuitu informed those present that the Commission was awaiting certified results from a few remaining constituencies before completing the tallying and thereafter make the final announcement.
He further said that the meeting was convened following the concern expressed by ODM regarding the outcome of the audit. He nonetheless, advised all parties that according to the law, once a portion of the remaining results were received, and the Commission established that whatever was yet to be received would not make a difference considering the total votes realised by the leading candidate, the Commission would legally have no option but to announce the results as received and verified by the Commission’s staff in the presence of Returning Officers.
He then asked Commissioner Raiji who was one of the Commissioners representing the Commission during the audit to read the minutes recorded during the exercise. Commissioner Raiji read the minutes as recorded by him.
ODM was then asked to present it’s case since the meeting was convened following their complains. It was at this stage that all hell broke out. ODM wanted the announcement of the results withheld until after all the issues raised in the audit were dealt with. On the other hand, PNU vigorously objected to any further delay once all the results were submitted. Attempts by the Chairman to control the meeting came to nought. Unprintable accusation/abuses were traded between our leaders. Physical confrontation seemed imminent. The well intended meeting seemed to head nowhere. An opportunity to find a way forward acceptable to all parties and which could have possibly saved the country from the chaos witnessed thereafter was lost. Sensing trouble, the chairman called off the meeting.
Was there a deliberate attempt to delay and or accelerate the results announcement?
.The 2007 General Elections were held on 27th December. The final results for the presidential vote were announced on 30th December. It took four days to announce the results. As noted earlier, the last certified returns from Returning Officers were received mid morning of 30th December 2007..
A comparison of the dates of announcement of the presidential results in the previous general elections of 1992, 1997, and 2002, as shown below may serve to clear the misleading notion that there was a deliberate attempt to delay or hurriedly announce the results, depending on which side of the divide one was.
- The 1992 General Elections took place on 29th December 1992 and the final presidential election results were announced on January 2, 1993 which was the fifth day.
- The 1997 General Elections took place on 30th December 1997 and the final presidential results were announced on 4th January 1998, which was the 6th day.
- The 2002 General Elections took place on 27th December and the final results were announced on December 29, 2002. This announcement was made before all the Forms 16 were received by the ECK. This was made possible given that as at that moment, the total outstanding balance of registered voters when finally counted, would not have altered the lead position of the winning candidate given the huge margin already established Additionally, the strong opponents conceded defeat long before the tallying was over. This was a commendable action the first of it’s kind in Kenya’s history.
Announcing of the results.
Immediately after the chaotic meeting mentioned earlier,
Commissioners were informed that Returning officers from Bondo, Kapsabet, Bomet, and Sotik, who had earlier been stranded owing to the outbreak of violence, had since been airlifted to Nairobi and submitted their returns for processing. By early afternoon, the Commission had the legally required returns to determine the winner of the election. Accordingly, the Chairman prepared his announcement speech and moved to the hall accompanied by Commissioners for the announcement.
Prior to announcing the national final results, the chairman tried amidst shouting to announce the returns from constituencies whose results were received that morning. It was at that juncture that one of the ODM party leaders rose to dispute the results of Molo constituency. He went on to introduce someone as a returning officer for Molo, and further alleged that, the said officer was similarly challenging the Molo results. According to this man who turned out to be an impositor,the results Mr Kivuitu had just announced for Molo were different from the results he had as a Returning officer.
This single act set the hall aflame. No amount of persuasion could calm the agitated agents from both the PNU and ODM camps in the hall.
While PNU members were demanding the announcement, ODM demanded the postponement until after all the queries raised in the audit and the fresh Molo matter were dealt with. It was a stalemate with nobody ready to listen to the other. The situation got out of hand with some agents jumping on the stage where Commissioners were sitting threatening them with physical violence. All the cursing, shouting, condemning, denouncing, etc by our political leaders were being relayed live by the media to the Kenyan public. It was at that juncture that the security agents moved in and quickly whisked Commissioners to safety.
Commissioners thereafter reconvened at the VIP lounge at KICC. The Commission secretariat were tasked to make fresh arrangements for the announcements of the results, the action which had aborted following the chaos earlier witnessed in the main hall. Every effort was made to assemble the media before announcing.
It must have taken something like one hour of waiting while our officers were making frantic effort to assemble the media.
The later allegation that only Kenya Broadcasting Corporation covered the event were just that ‘allegation. Our officers were directed to inform the media that the Commission was moving to the lounge, the same place where the morning meeting had been held to make the announcement.
I believe if some media houses missed the event, it was not for lack information but rather that at that same time ,ODM which seemed to attract more media attention was at the KICC open grounds denouncing the would be results.
Did eck have any discretion to delay the announcement?
Commissioners met briefly to look at the final results as submitted by the tallying officers before accompanying the chairman to the media centre. It was ascertained that the results in the Commission’s custody as at that time were sufficient considering the provision of the law, to enable the Commission to move to the next step which was to announce.
The law did not give commissioners any discretion in the matter. As mentioned earlier, once certified results are surrendered to the tallying centre, the only changes authorised by the law are those caused by arithmetical errors, and while verifiers could point out such errors, corrections could only be made by the relevant Returning officers. At that stage therefore, Commissioners had a legal obligation to announce the tallied results as provided.
Indeed every effort was made by Commissioners to explain to ODM leaders the legal inability on the part of Commissioners to delay the announcement, the issues raised by them not withstanding. According to the law, the Commission’s hands were tied and the matter could only be looked at by the Court of Law. That was the law of the land legislated and enacted by our law makers. Consequently, and given the prevailing circumstances, the Electoral Commission of Kenya had only one option, and that was, to announce the election results as submitted by Returning officers.
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