The Elections Observation Group (ELOG) Report, The Historic Vote: Elections 2013

March 4th 2013 will remain a special day in the history of Kenya. On this day, millions of Kenyans turned out to cast their vote in the biggest and most expensive election event ever in the country’s electoral history.
This election recorded many firsts for Kenya: it was the first to attract the biggest ever turn out of voters with more than 12 million Kenyans casting their votes; it was the first under the new Constitution of Kenya 2010; it was the first under the new devolved system of government; it was the first in which six elective offices were being voted for on the same day; it was the first in which technology was expected to safeguard electoral integrity; it was the first in which all presidential aspirants and their deputies participated in live media presidential debates; and it was the first election in which independent candidates were allowed to run. It was also the first in which a presidential dispute petition was filed in the Supreme Court and determined within the constitutionally stipulated timelines.
Following the tragic events that that came in the wake of the 2007 general elections, the shadow of violence and potential instability stalked the entire 2013 election process. Kenya had to pass the test of conducting credible, peaceful, free and fair elections. In 2007, soon after the announcement of Mwai Kibaki as the winner of the presidential election, violence broke out in most parts of the country. Kibaki’s political rival, Raila Odinga, and his ODM party contested the presidential results. What followed were days of bloody violence and mayhem. More than 1, 300 people were killed and over 600,000 displaced from their homes.
This report presents ELOG’s evaluation of the entire 2013 election process. It covers the pre-­‐ election period, election-­‐day, and the immediate post-­‐election period. The evaluation is based on direct observations by trained observers who were deployed throughout the entire electoral cycle. Additional information was provided by ELOG member organizations that directly monitored various thematic aspects such as; voter registration, party nominations, and campaign financing. The report places ELOG’s findings within the country’s socio-­‐political context. It outlines important recommendations for improving future elections.
The first chapter captures the socio-­‐political context in which elections took place. It reviews efforts to reform political and electoral institutions, as part of the peace agreement negotiated by the Panel of Eminent Persons led by former United Nations Secretary General, Kofi Annan. The peace agreement, brokered by Annan and Tanzanian President Jakaya Mrisho Kikwete, helped stop the 2007/08 Post Election Violence. Whereas much had been achieved between 2007 and 2013, there are many issues yet to be resolved. The unresolved issued include: the culture of impunity, historical injustices, and negative ethnicity.
The report analyses the key narratives in the 2013 elections. These include: the role of the International Criminal Court (ICC); the role of the international community; the presence of violence in the run-­‐up to the elections; the concept of “tyranny of numbers”; high youth unemployment; the age debate; and the role of opinion polls in the run-­‐up to elections.
A newly formulated legal framework provided impetus and hope for improvement in the conduct of elections in Kenya. The new laws and regulations further reflected consensus on a normative framework to evaluate: the organization of elections; the registration of political parties and coalitions; manifestos of political parties; the role of state bodies and institutions in the elections such as the Independent Electoral and Boundaries Commission (IEBC); political party’s primaries and nominations; and the election disputes and the role of the Judiciary.
Nevertheless, the 2013 elections revealed that many legal loopholes still exist. Such loopholes, among other things, undermine the representation of women and people with disabilities. The country is yet to tackle the issue of campaign financing. A bill developed and tabled in Parliament in 2012 was never adopted. The financing of politicians and political parties remains an opaque issue.  There  is  confusion  over  which  institution  is  in  charge  of  which  electoral  disputes  and offences. The legal framework for the use of technology needs to be further strengthened to remove all ambiguities.
For the elections to be considered free and fair, it is important that all state institutions involved in it function well. Whereas it is impossible to blame all failures on one individual or institution, some mistakes in the execution of the elections engendered suspicion and mistrust among Kenyans. The key factors that fuelled suspicion and mistrust were: the flawed use of technology; the failure to continuously register  voters; unconvincing implementation of delimitation  of  boundaries; and inadequate  enforcement  of  legal requirements  for  party  nominations. The  confidence  that Kenyans had in the IEBC has been overshadowed by these shortcomings. IEBC and other institutions needed to make the whole electoral process more transparent.
The Registrar of Political Parties and IEBC failed to hold political parties to account for some obvious breaches of the Political Parties Act and the Elections Act, respectively. They turned a blind eye to the numerous malpractices that permeated political party nominations. The dispute over the concrete date of the elections did not help in establishing credibility in all institutions concerned with the conduct of elections.
Political Parties need to further improve their functioning and internal organization in order to create a fully democratic and competitive political arena. Political parties’ nominations need to follow the same principles as the elections themselves – they have to be credible, free and fair.
The Judiciary also failed to ensure full compliance with the constitutional requirement on leadership and integrity. Its advisory decision on the one-­‐third rule for ensuring gender equality and participation prolonged marginalization of women in elections and politics, and the tentativeness of the decision on the date of the elections did not help establish the credibility of the Judiciary. The proceedings of the Supreme Court following the submission of the presidential petition further shook the trust of the public in the functioning of the highest judicial organ in the country.
ELOG’s monitoring and observation during the last election cycle focused on: voter registration; voter and civic education; party nominations; participation of women, people with disability, and the youth; campaign financing; violence; and delimitation of electoral boundaries. It adopted a number methodologies including long-­‐term observations, baseline mapping and identification of violence hotspots, extensive reviews of legal and other electoral materials, interviews with key informants, and focus group discussions.
Complaints were raised regarding the manner in which the additional 80 constituencies and 1, 450 County Assembly Wards were created, their distribution, names, boundaries and areas of allocation. There were also grievances regarding the number of wards given to certain constituencies. The complaints revolved around population density, geographical boundaries, clan, community, and other interests.
Although voter education was conducted in all the constituencies, it was of varying and uneven quality and quantity. Voters in some areas were better equipped to participate in the elections than others. ELOG’s assessments found that, overall; the voters were not adequately prepared for the elections. It was instructive that IEBC and/or GoK did not set aside enough resources for voter education.
Although not a constitutional requirement, there was broad consensus and expectation that a new voter registration system, Biometric Voter Registration (BVR), would be implemented to enhance the integrity of the voters roll. However, the implementation of BVR was dogged by serious concerns and failures that undermined their efficiency and effectiveness. This considerably reduced public confidence in the voting process on Election Day.
The concerns and failures include: a botched procurement process that was dogged by allegations of impropriety, delays in timelines for voter registration, and widespread failure of biometric verification kits on election-­‐day. Indeed, the failure of the biometric voter registration system ranked amongst the most serious threats to the integrity of the 2013 elections, and contributed to public perceptions of incompetence, corruption and electoral fraud.
Generally, as widely expressed by key political actors, the party nominations were shambolic and abused basic tenets of democracy and fairness. There were reports of violence and intimidation and lack of internal party democracy, including favouritism and nepotism. The parties lacked capacity to conduct successful nominations. Moreover, the ability of the IEBC to manage the elections was seriously weakened by the way it guided the nomination processes. Similarly, the conduct of the political parties during the party nominations also cast serious doubts on their ability to promote transparent, open, free, and fair elections.
On the whole, violence monitoring revealed a relatively peaceful election, compared to the scale and scope of the 2007/2008 PEV. However, prior to the elections, violence incidences were reported in the Coast region (Tana River) and Upper Eastern/North Eastern (Baragoi area), with hostilities spewing in several other parts of the country. Though these cases could not directly be linked to election process, their occurrence affected election activities in the said areas. Violence has increasingly and consciously been used as an unfair means of achieving political objectives. Physical violence affected female candidates and the youth more than other political actors. Concerns were also raised regarding the ability of the security agencies to secure the lives and properties of residents in all the areas where violence was monitored. Pre-­‐emptive responses focused mainly on relocation of people from hot spots to relatively safe areas. Both civilians and security agencies actively participated in violence and/or abetted it.
While there was a notable increase in hate speech particularly transmitted via the social media, there was surprising inability by the State and the National Cohesion and Integration Commission (NCIC) to manage the outraging menace. Finally, there was clear lack of determination, motivation, and even capacity on the part of security agencies to ensure the safety of all Kenyans.
The absence of a substantive law governing campaign financing was a major blight in the preparation of elections free of intimidation, improper influence or corruption. From the onset, it was clear that the process of enforcing campaign and political financing regulations was poor. Furthermore, the existing legal framework for campaign and political financing was inadequate and incoherent policy-­‐wise. Yet both popular media reports and our own assessment showed that the 2013 elections were undoubtedly the most expensive in Kenya’s electoral history.
Participation of women, persons with disabilities and the youth in the pre-­‐election processes was limited. Although the number of women candidates was higher than in previous elections, this did not necessarily constitute significant gains for women participation in elections. Effective women participation was greatly undermined by intimidation, violence, and irregularities targeted against them.
Although Article 81 (e) of the Constitution provides for free and fair elections by secret ballot devoid of violence, intimidation, improper influence or corruption, IEBC Election-­‐Day arrangements were wanting. IEBC could not ensure the independence and sanctity of the vote for assisted voting for voters with disabilities.
Older and wealthier politicians continued to dominate political parties. The youth who had been advocating for affirmative action to increase their participation in electoral processes especially nomination processes were still locked out of elective politics.
Nomination rules of political parties were not favourable to the youth. The nomination process excluded the youth from the mainstream party activities. Nevertheless, youth participation in the 2013 general election was much better compared to previous elections.
ELOG deployed both the Parallel Vote Tabulation (PVT) and general observation methodologies in observing the March 4th 2013 Election Day processes. These two methodologies of observation complemented each other, thus, enriching the entire observation exercise. PVT enabled ELOG to systematically observe Election Day processes (opening of polling stations, voting, closing of polling stations, and counting) and rapidly project the results whilst general observation enabled it to establish a presence of non-­‐partisan observers countrywide. The presence of observers helped deter malpractices and fraud. Since the PVT observers are deployed to nationally representative random sample of polling stations, their data is not biased in any way, and is statistically valid for generalizing findings to the national level. Consequently, ELOG’s assessment of Election Day processes is largely based on data received from the PVT observers.
ELOG deployed 580 Constituency supervisors and over 7, 000 observers in all 290 constituencies. Out of these, 976 were deployed as Parallel Vote Tabulation (PVT) observers in nationally sampled polling streams. This enabled ELOG to authoritatively comment on E-­‐day processes and provide an
independent verification of the presidential results announced by IEBC. Of the 976 PVT observers deployed, a high response rate of 97.5% was achieved. Reports from these observers were used to project the outcome of the presidential elections.
Despite the many serious problems such as widespread malfunctioning of electronic verification kits witnessed during the E-­‐Day, the PVT exercise determined that the process was generally credible. It is on the basis of this that ELOG utilized the PVT data to project and verify the accuracy of the presidential results. The PVT verified that the results announced by the IEBC were within the range projected for each of the presidential candidates. Based on its projection, and in view of the problems witnessed, ELOG called on the IEBC to immediately make public all information pertinent to the results, including results collation forms at all the various levels of tabulation.
Although the 2013 general elections were much better than the previous ones, it is clear that a number of issues still need to be addressed to ensure credible, peaceful, free and fair elections in the country. This report shades light on such issues and recommends the way forward.
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Thursday, November 5, 2015 - 2:15pm