Carter Center on Kenyan Election 2017

Carter Center Preliminary Statement on the 2017 Kenyan Election

August 10, 2017

The Carter Center commends the people of Kenya for the remarkable patience and resolve they demonstrated during the Aug. 8 elections for president, governors, senators, the national assembly, women’s representatives, and county assemblies. In an impressive display of their commitment to the democratic process, Kenyans were undeterred by long lines and cast their ballots in a generally calm and peaceful atmosphere.

While the Kenyan people have spoken at the ballot box, the electoral process is still ongoing as the Independent Electoral and Boundaries Commission (IEBC) continues to tabulate and finalize results. Until official results are announced, it is critical that all parties and candidates refrain from making declarations about the results.

Although election day voting and counting processes functioned smoothly, the electronic transmission of results from the polling stations to the 290 constituency centers, where official results are tallied, proved unreliable. The IEBC advised election officials to revert to the paper copies of the results forms, which provided a reliable mechanism to tabulate the results. Unofficial results were also transmitted to the national tally center, where they were posted on its website. Unfortunately, the early display of vote tallies at the national level was not accompanied by the scans of polling station results forms as planned, nor labelled unofficial, leading to some confusion regarding the status of official results.

In light of these problems, the IEBC issued a statement on Aug. 9 calling for patience while the tallying process continued. In addition, the IEBC stated that the presidential results reported on the website were unofficial – the official results are those tallied at the constituencies. Citing complaints about the electronic results transmission system and other problems, opposition candidate Raila Odinga said that the tally of results at the national tally center was not legitimate and that he would not accept unsubstantiated results. Coupled with the trouble experienced in data transmission, these statements resulted in increased tension among his supporters and created concerns about a threat of violence in some areas of the country.

Despite initial problems with the electronic results transmission, the paper balloting and polling station results forms provided a verifiable mechanism to conduct tabulation in the absence of the electronically scanned results forms. The IEBC is continuing to finalize the tabulation process at the 290 constituency centers, where polling station presidential results forms (Form 34A) are tabulated to calculate the total constituency results (Form 34B), which are then brought to the IEBC national tally center. As in the polling stations, political party agents on the national level had full access to the tallying processes and could cross-check the Form 34A results against copies that were available to party agents in the polling stations. In addition, the IEBC is making scanned copies of forms 34A available to candidates and the public online.

The IEBC’s tabulation process, if fully implemented, allows for a high level of transparency and accountability. The IEBC should continue to collect and publish results transparently until the process is concluded, so that the overall integrity of the process can be verified. In addition, all parties and their agents should enjoy full access to the IEBC’s tallying processes at all levels so that any discrepancies can be reviewed and discovered.

As the process continues, it is essential that all Kenyans maintain their commitment to peace.  If there are disputes about official election results, The Carter Center urges candidates and parties to use established legal channels to resolve them and to ensure that their supporters remain calm throughout the remaining electoral period.

Carter Center Observation Mission. The Center’s short-term election observation mission for the Aug. 8 elections was led by John Kerry, former U.S. secretary of state and Dr. Aminata Touré, former prime minister of Senegal.  The mission included more than 100 observers hailing from 34 countries in Africa and around the world.  On election day, Carter Center observers assessed the electoral process in 424 polling stations in 185 constituencies across 39 counties, and the vote tallying process in 36 constituency tally centers.

The Carter Center’s observation mission has benefitted from close collaboration with other international observation missions, including the African Union, COMESA, the Commonwealth, the East African Community, the European Union, ICGLR, IGAD, and the National Democratic Institute, as well as from consultations with key Kenya election observation groups and other stakeholders.

Carter Center observers will remain in Kenya for several more weeks to assess the conclusion of vote tallying and the post-election environment, including any challenges to the results. The Center will issue additional public statements and reports, as well as a comprehensive final report three- to six months after the conclusion of the process.

Based on more than three months of field assessments and reporting, the Center’s key findings and conclusions include:

• Election day – Voting and Counting.  Carter Center observers reported that election-day processes took place in a calm and peaceful atmosphere, and that the opening, polling, closing, and counting process were generally well-conducted. The Kenya Integrated Election Management System (KIEMS) for the biometric identification of voters functioned well in most polling stations, serving as an effective means to prevent multiple voting and to dispel concerns regarding the voter registry. Carter Center observers reported various procedural irregularities that may have resulted from insufficient poll worker training and civic education. For example, many polling stations failed to fill out forms consistently for voters whom the KIEMS system did not recognize, but who were allowed to vote if they provided required ID and were on the voter list. Carter Center observers reported that these instances did not detract significantly from the overall integrity of the electoral process. At a few polling stations, observers noted isolated incidents of misconduct by poll workers, e.g., appearing to invalidate ballots, misdirecting voters to cast ballots in the wrong box, or "assisting" voters who didn't need assistance. Overall, Center observers assessed polling as “very good” or “reasonable” in 406 of 422 polling stations they visited.
• Vote Tallying and Results Transmission.  As noted above, the electronic transmission of polling station results forms from the polling station level to the 290 constituency centers and to the national tally center proved unreliable. While the data entry of the results from the KIEMS system transmitted successfully to the national tally center, the early display of these tallies was not substantiated by scanned copies of the polling station results forms for the presidential race. Nor were these results clearly labeled as unofficial. Given that the tallying process is ongoing, the Center is currently unable to provide an overall assessment. We will continue to monitor tallying and election results processes in the weeks ahead.
• Legal Framework: Kenya has a generally sound and comprehensive legal framework for the conduct of democratic elections. It is regrettable that parliament decided not to apply the Campaign Finance Act to these elections. This allowed parties and candidates to raise and spend any amount of money without public scrutiny. In addition, parliament did not pass legislation to implement Article 81(b) of the constitution mandating that not more than two-thirds of elective bodies be of the same gender.
• Campaign: Voters had a wide choice of contestants, all of whom were able to campaign freely without interference from the state. This resulted in competitive and meaningful elections in most areas of the country. The campaign saw polarizing rhetoric between the top contenders for the presidential race and key down-ballot races. There were breaches of the electoral code of conduct, which were largely ignored. Generally, candidate campaigns geared up toward the latter party of July, with the exception of the campaign for the presidential race. The campaign for president was vigorous, with both leading candidates conducting large rallies across the country. Campaigning for other races was more subdued due to a lack of financial resources.
• Electoral Institutions: Unfortunately, some candidates used myriad court challenges to criticize and delegitimize the authority and competence of the IEBC and the judiciary. Some candidates used ethnic identity as a campaign tactic, and multiple instances of hate speech were reported. On Aug. 2, the chief justice of the Supreme Court issued a statement condemning increasing pressure on the judiciary by the political parties.

Although the current IEBC commissioners were not appointed until late January and faced delays because of court challenges to many of their decisions, they still met most of the legal deadlines and delivered the elections on the constitutionally mandated date. However, the commission did not sufficiently communicate with stakeholders. The lack of transparency about its decision-making negatively affecting the confidence and trust of the electorate and political parties. The late modification of rules surrounding the elections, such as conflicting instructions on valid/invalid ballots, sowed some confusion and raised suspicions among opposition parties.

• Election Laws: The legal framework contains certain gaps and inconsistencies, including overlapping jurisdiction of the IEBC and the Political Parties Dispute Tribunal (PPDT); too-long deadlines for the resolution of electoral disputes, including candidate nominations; the absence of regulations or procedures for resolving election-day disputes; inconsistent timelines for voter registration; verification and audit of the voter register; vague nomination rules; and some unclear election-day procedures.
• Security and Violence: Although the pre-election environment was generally calm, the murder of Chris Manado, the acting head of IEBC’s ICT department, barely a week before the election was a deplorable act. In addition, given Msando’s important role in the election machinery, his death affected the public mood and instilled fear. On Aug. 4, NASA offices were ransacked, allegedly by security personnel. Finally, the government deployed some 180,000 police and other security officials around the country. While essential for maintaining law and order, many opposition areas regarded this show of force as threatening, given the country’s recent history of elections. Since Tuesday’s election, some episodes of violence have occurred in various parts of the country, including the death of two people who were reportedly shot by police officers in the outskirts of Nairobi.
• IEBC Staff: Training of polling staff was in line with the electoral calendar and was well-organized, comprehensive, and interactive. Commendably, issues that required a uniform approach by IEBC staff were raised at the plenary sessions and either agreed upon or referred to the IEBC for clarification in order to provide for an adequate follow-up.
• Participation of women, youth and persons with disabilities: Regrettably, women, youth, and people with disabilities made only marginal gains in the 2017 election. At least half of the women in office in 2013 competed again in 2017, running as incumbents or contesting for different seats. At the time of this statement, it appears that Kenya will elect its first female governors and slightly increase the number of elected women members of parliament. Women groups and allies continue to advocate for enforcement of the two-thirds gender rule, which requires that all elected and appointed bodies have not more two-thirds of one gender. Youth informed IEBC decision-making through a formal and broadly representative Youth Advisory Committee. Persons with Disabilities groups supported PWDs aspirants and candidates.
• Voter registration: Although the IEBC took commendable steps to clean up the voter register, the lack of transparency during the audit process and the initial reluctance by the IEBC to release the full KPMG report hurt public confidence in KPMG’s work and the subsequent steps taken by the IEBC. Though much work remains to address concerns raised in the audit regarding the accuracy of the voter registry, our observers found that the KIEMs functioned properly in 97.6 percent of the polling stations observed and served as an effective mechanism to validate voter eligibility.
• Candidate Registration: The nominations process highlighted the uncertainty and ineffectiveness over what criteria are applicable in order to determine whether a candidate has met the requirements of Chapter Six of the Constitution on Leadership and Integrity. The Ethics and Anti-Corruption Commission (EACC) compiled and forwarded to the IEBC a list of 106 aspirants whose integrity was under suspicion; however, the IEBC took no action and cleared all candidates.
• Election Dispute Resolution: The new Election Offences Act (EOA) adopted in 2016 contains a number of offenses that overlap with the Electoral Code of Conduct, the Penal Code, the National Cohesion and Integration Act, and the Public Order Act, which created confusion as to which body had jurisdiction over electoral offenses. Nevertheless, the judicial system of Kenya and its election laws provide full and adequate accountability for the election.
• Party Primaries: The primaries were chaotic and conducted with little regard for the rules, particularly the requirement that only party members be allowed to vote in the primary.  Many of the initial results were overturned by the PPDT on the basis that non-party members voted. Because of this, many had to be re-run.  Other problems noted during the primaries included polls not opening on time, lack of control over polling places, and certificates being awarded to the person who lost. There were still a number of cases pending in the courts on election day.
• Civil Society Organizations (CSOs): CSOs played an important role in observing all aspects of the election process, releasing reports of their findings inclusive of recommendations for improvement of the electoral system. CSOs and faith-based groups played a key role in promoting peace and mitigating conflict.

Background: Carter Center Election Observation Mission.  In response to an invitation from the Independent Electoral and Boundaries Commission, the Carter Center launched an international election observation mission in April 2017, with six core team experts based in Nairobi and 12 long-term observers deployed across the country to assess the campaign and electoral preparations.

The Center’s assessment of the electoral process is based on Kenya’s legal framework and on international standards for democratic elections. The Center conducts its observation missions in accordance with the 2005 Declaration of Principles for International Election Observation and the Code of Conduct for International Election Observers.

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