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2013 Kenyan General Elections: Pre-Election Report II

- February 5, 2013

Continuing our series of election reports, we are pleased to welcome the a second pre-election report on next month’s general election in Kenya from UCLA political scientist Seema Shah.  Her first pre-election report is available here.


What effect does the administration of elections have on the legitimacy of emerging democracies? Jørgen Elklit and Andrew Reynolds (2002) assert that the conduct of elections has a direct bearing on political actors’ and voters’ perceptions of the legitimacy of polls, and they propose a conceptual framework through which to investigate this relationship.

Through eight case studies, Elklit and Reynolds explore the impact of the conduct of elections on the development of individuals’ sense of political efficacy. This, they claim, is an important factor in the development of legitimacy and progression towards democratic consolidation.

Indeed, the relationship between election administration and democratic legitimacy is under-studied. The next General Election in Kenya, scheduled for March 4, 2013, is, in many ways, an appropriate case with which to further investigate Elklit and Reynolds’s theory. Although Kenya has officially been a democracy since independence in 1963, former President Daniel arap Moi only allowed multi-party elections beginning in 1992. Since that time, the country has experienced a total of only four such elections, all of which have been marred by varying degrees of violence and only one of which (in 2002) was considered truly free and fair. The most recent election, held in December 2007, was followed by the most severe inter-ethnic bloodshed Kenya has ever experienced, leaving approximately 1,133 people dead and another 3,561 people injured. It is estimated that about 350,000 Kenyans were displaced from their homes during this time. In the end, violence only abated when former United Nations Secretary-General Kofi Annan, leading the Kenyan National Dialogue and Reconciliation process, negotiated an end to the crisis through the formation of a Grand Coalition government.

Since then, Kenya has entered a dramatic period of reform, at the center of which is the new constitution (2010), world renowned for its progressive bill of rights. Reforms associated with the implementation of the constitution have extended to the electoral arena, and Kenyan elections are now overseen and managed by a new electoral management body, known as the Independent Electoral and Boundaries Commission (IEBC). There are also a host of related reforms, including the creation of a Registrar of Political Parties; new electoral system rules for presidential candidates; integrity requirements for political office holders; ethnic and gender diversity requirements for all elective bodies and political parties; and reserved seats in the national and county legislatures to ensure the representation of women and historically marginalized groups.

These reforms have drawn public accolades, but they have also provoked fear in certain segments of the political elite, who are doing their best to maintain the status quo. In fact, a series of amendments have watered down some of the most critical parts of the new laws. As for the IEBC, it is coming under increasing fire for its silence with regard to the nullification of important laws and for what is being perceived as a lack of will to enforce the law.

The latest controversy involves party nominations, which – by law – were to be held by January 18, or 45 days before elections. In order to try and prevent last-minute defections, the largest and most dominant parties waited until January 17 to hold their nominations.

Despite its mandate to monitor and regulate the nominations process, the IEBC adopted a disturbing “hands off” policy, doing nothing in the way of regulation. As the day wore on, the chaos became increasingly apparent, with reports of violence and allegations of “ethnic zoning” and vote-rigging emerging around the country.  In a way, this is unsurprising, given that this is the first nominations exercise to be conducted under the new rules. Moreover, the logistics of coordinating nominations for 290 constituencies, 47 counties and 1,450 wards would be daunting for even the most seasoned political parties/election administrators.

Still, it seems worrisome that the IEBC was so dissociated from the nominations process and that its response to the mayhem was to extend the deadline for submission of nomination lists from January 18th to 5:00pm on January 21st. The IEBC later extended the deadline even further to midnight on January 21st. As of February 4, 2013, the IEBC was still accepting nomination papers. There have also been allegations that the IEBC has accepted the nomination papers of candidates who, after having been defeated in their party nominations, defected and joined other parties who were willing to offer them candidacies. This last-minute party-hopping is especially appalling because the deadline for party-hopping had already been amended twice by self-serving parliamentarians, finally being moved to January 18, the same date as nominations.

There was also blatant disregard for the authority of the IEBC. Shortly after the close of the nominations period, aspiring MP candidate Mary Wambui stormed the IEBC offices. She had just learned that her name had been removed from the list of The National Alliance (TNA) aspirants for the Othaya parliamentary seat. Wambui, accompanied by outgoing MPs, staged a “sit-in” from 9pm until midnight, demanding that the IEBC address their issue immediately. In response to this dramatic behavior, the IEBC issued a press release notifying Wambui that she stood in breach of the electoral code of conduct. If such behavior is not more severely reprimanded, Kenyans will be left to wonder what the IEBC will do if and when there are disputes during the General Election, when more is at stake.

It must be pointed out that some of the chaos around nominations was partly due to the IEBC, which had to delay the commencement of the voter registration process multiple times because of a botched biometric voter (BVR) kit tender process. After it became apparent that some of the short-listed BVR-supplier companies were less than credible, the IEBC was forced to cancel the tender altogether. It was only when the government stepped in that the process was re-started, and government involvement cast the IEBC in a less than positive light, with suspicions that the agency was not truly independent. In the end, voter registration was conducted so late in the game that a finalized, publicly verified voter’s roll was not ready in time for party nominations. As a result, parties could only make use of the provisional voter’s roll, which means that there is no guarantee that all those who participated in the nominations exercise were legally entitled to do so.

The nominations controversies are only the most recent in a string of shady moves. When political parties submitted their membership lists to the IEBC, a number of Kenyans found that their names had been included without their knowledge. Parties had gleaned names from mobile-phone based money transfer accounts (M-Pesa) in order to populate their lists. In response, the Acting Registrar of Political Parties Lucy Ndung’u explained that complaints would be processed and offending parties would be notified and required to remove the names. The IEBC did nothing. Of course, one could argue that it is not within the IEBC mandate to take action in such cases. That may be true, but the Commission could, at the very least, issue a statement condemning such acts. This would convey its authority and reflect its commitment to upholding the rule of law.

The IEBC was also silent when MPs passed a bill that suspended integrity requirements for the upcoming election. According to the law, candidates for office are required to hold university degrees and conform to the constitution’s integrity requirements. Now, however, it is only gubernatorial and presidential candidates who must show university degrees. Moreover, Parliament failed to implement a mechanism that would give relevant bodies, such as the IEBC (and others), the legal mandate to vet political aspirants. So while the IEBC is asking parties to ensure that candidates receive clearance from institutions like the Kenyan Police, Kenya Revenue Authority, Credit Reference Bureau, Higher Education Loans Board and the Ethics and Anti-Corruption Commission, there is no clear framework for barring a candidate if he/she does not receive clearances.

The IEBC is also being criticized for waiting until the three weeks before elections to conduct voter education. This move is questionable, especially since the commission’s voter education materials were launched in October. The likelihood that the IEBC will be able to reach all Kenyas and comprehensively educate them on all the newly created offices, the devolved government system and the myriad of rules involved in this election within three weeks is highly unlikely. Waiting until so late in the game is unfortunate, especially since the IEBC’s materials are useful.  A full-page ad in Kenya’s Daily Nation newspaper included photos of the format and appearance of each of the six ballots to be used in the election. This information, as well as other important updates regarding nomination dispute resolution and nomination lists, are regularly posted on the IEBC’s Facebook page. What remains to be seen, however, is if and how the body is reaching out to Kenyans who live outside of the country’s metropolises, where internet access may be harder to access.

The next test is already underway. The IEBC just published a strict set of guidelines for political parties to follow as they were formulating their party lists. These lists contain the names of candidates who will be appointed to 12 seats for “special interests” in the National Assembly and 16 reserved seats for women, 2 seats for youth and 2 seats for the disabled in the Senate. The reserved seats in the National Assembly are set aside for the youth, persons with disabilities and workers. In order to ensure that these guidelines are followed, the IEBC, in its above-mentioned rules, stipulated that lists for the National Assembly must alternate between men and women and reflect the regional and ethnic diversity of the country. The first three names on the list must represent the youth, the disabled and workers, and one nominee cannot represent more than one special interest. No more than one nominee on the list for the reserved seats for women can be from the same ethnic group. For reserved seats in the counties, parties must submit lists that contain eight nominees from marginalized groups. Parties are also required to show which special interest each nominee represents. The names on each list must be ordered in terms of priority.

These are impressive requirements, but it remains to be seen how committed the IEBC is to enforcing their regulations. Submitted lists already show transgressions. Raila Odinga’s Orange Democratic Movement (ODM) included the party’s executive director, Janet Ong’era, amongst the nominees for Senate and gave Raila’s brother Oburu Odinga the first nominee’s position on the list of special interest seats for the National Assembly. ODM’s list also includes the party chairman, Henry Kosgey, who is contesting for the Nandi Senate seat. If he does not win that election, the party clearly hopes to ensure his inclusion in Parliament anyway. The United Democratic Front (UDF) and NARC-Kenya have gone so far as to include their presidential candidates, Musalia Mudavadi and Martha Karua, respectively, on their lists, attempting to make sure these politicians do not fade away in case they do not win their presidential bids. Details of the TNA list are not yet available, but leaders assured aspirants that they would be “included” even if they lost in the primaries.

These glitches are less worrying than the IEBC’s response. After all, a certain number of mishaps are inevitable, especially given that this is the first election to be conducted under these new rules. It is too early to tell how the IEBC’s seeming laxity will impact the legitimacy of the upcoming elections, but indicators show real concern in public circles. Kenyan civil society recently issued a press release condemning the IEBC for its failure to enforce the law. Clearly, in order to set the foundation for a peaceful election, the IEBC, as the elections authority, must send a zero-tolerance policy to political parties and others who are attempting to deflate the constitutional reforms and maintain the decades-old corruption-ridden system. This is the only way the IEBC will inspire public confidence and set the stage for free and fair elections in Kenya.