Monday, 18 March 2013

The West wobbles as Odinga tests election in the courts

The post-mortem on Kenya's 4 March election could prove as important as the vote itself. It is under way after Raila Odinga, presidential candidate for the Coalition for Reforms and Democracy (Cord), submitted a detailed petition to the Supreme Court 16 March arguing that the election result giving victory to his opponent to Uhuru Kenyatta lacked credibility and legitimacy.

Those Western countries who had warned about the consequences of voting for Uhuru Kenyatta and running mate William Ruto because of the charges they faced at the International Criminal Court, now maintain a discreet silence. Some are briefing journalists that they find the election results entirely convincing, echoing the cautious assessments released by international observers such as the African Union, the Commonwealth and European Union (which contributed some $100 million to the cost of the election).

By all accounts, Kenyatta and Ruto have won the first bout of arm wrestling over the ICC case. Pressure on the court and its witnesses will increase massively should Kenya's Supreme Court confirm that Kenyatta's election is legitimate.

Odinga's petition to the Supreme Court aims not just to prove that Kenyatta did not surpass the 50% threshold necessary to avoid a second round of voting – the Independent Electoral and Boundary Commission (IEBC) claimed he did that by just 8,400 votes -- but to prove the process was so flawed that an entirely fresh set of elections should be held.

Despite Odinga's penchant for hiring blue chip advisors – he had Margaret Thatcher's political consultants Bell-Pottinger working on election strategy and he has hired William Burck, George Bush's lawyer in the 2000 election, to argue his case in the Nairobi Supreme Court – he has a formidable task ahead. Possession, in the case of Kenya's presidency, is nine-tenths of the law. Judges, no matter how non-partisan, don't like annulling elections, least of all in Kenya's febrile political climate.

From briefings that leaders of Kenyatta's Jubilee coalition gave to the press last week it is unlikely they would be prepared to accept a court ruling that annulled the election results. They have warned of any moves that could disturb the 'fragile peace' in the country. And from the look of their supporters bussed into Nairobi last week, that is no idle threat.

Kenyatta's team is already acting like the new government. “These days you can become an incumbent before you are inaugurated,” a veteran journalist joked last week in Nairobi. Musalia Mudavadi, the third running presidential candidate after Kenyatta and Odinga, has already been offered and apparently accepted a job with the Jubilee team. The team also looks confident of stitching together an alliance of MPs that would give them a small majority in parliament.

So far so consistent, when it comes to the leading political players. Victor celebrates and starts to look presidential; aggrieved party runs to the courts in the name of rescuing democracy. It is the third parties whose behaviour is more curious.

Issack Hassan, chairman of the IEBC and his colleagues, far from acting in the spirit of the reformed constitution which is meant to guarantee the independence of the electoral body, are fighting their corner with a vehemence which has raised new questions about the management and probity of the commission (Africa Confidential Vol 54 No 6). Journalists and Odinga's legal team, complain that questions are parried and sets of data, even basic numbers about turnout and the electoral registration process, are being withheld by the IEBC.

At least four areas of concern emerge from the IEBC's management of the elections:
* the credibility of the voters' register and the failure of the biometric registration systems;
* the breakdown of the electronic vote transmission system which was to have provided a check against vote tampering in the constituencies;
* reports that at several polling stations the numbers of votes cast exceeded the number of registered voters;
* lack of internal consistency in the election results, that is the voting figures for the presidential candidates and rejected ballots didn't add up, as well as improbable discrepancies between the presidential and parliamentary votes.
The other third parties, the spin doctors and lawyers, are equally active in pushing their agendas. Kenyatta and Ruto's advisors speak gaily about the imminent collapse of the ICC case against their clients. Jendayi Frazer, former United States Assistant Secretary of State and family friend of Kenyatta, lambasts her government's stand on the ICC arguing the court has lost legitimacy because of its Africa obsessions. Odinga's team say they had advocated credible local trials for the accused all along.

All this will put added pressure on Kenya's Supreme Court and Chief Justice Willie Mutunga who told Africa Confidential about the trouble his taken to ensure that its judges cannot be accused of political bias.

Friday, 8 March 2013

Kenya's election goes to court

by Patrick Smith in Nairobi

Questions about Kenya's election results four days after voting and the crash of electronic systems meant to provide safeguards against rigging are raising the political temperature. Opinion is divided between those who want the results out as soon as possible to defuse tensions, and those who argue the release of disputed results could cause its own problems. Civic activists are seeking a court injunction on 8 March to stop the vote which they say has been compromised by the malfunction of the electronic vote reporting systems

The constitutional requirement is that the Independent Electoral and Boundaries Commission announce the final results of the presidential election within seven days of voting on 4 March.

On the afternoon of 7 March, Issack Hassan, the beleaguered chairman of the IEBC, said he would easily meet this and announce the final results on 8 March. Those who framed the rule that results be announced within seven days of voting have logic on their side. Lengthy delays and and micro-debates about the legitimacy of results keep the voting public waiting and can worsen tensions.

Equally, natural justice dictates that IEBC officials thoroughly scrutinise and verify all election results prior to announcement. That means reconciling all data from the country's 33,000 polling stations with the results announced by the returning officers from Kenya's 290 parliamentary constituencies.

This reconciliation is significant because it is the main check that political activists on the ground have to verify what they say and agreed to in the polling stations against the results being announced by IEBC central at the Bomas Centre, just outside Nairobi.

Making the right call between the demands of the constitution and those of an election seen to be credible by the maximum number of people is a matter of the utmost seriousness. At stake is the credibility of the 4 March elections. And the outcome of the vote could affect the security and future of one of Africa's most culturally and economically dynamic countries.

Such effects would ripple far beyond its borders. If Kenya goes wrong now, it would be a terrible negation of the spirit of “can-do” optimism currently coursing through the Africa's veins.

It is not an easy balance to strike. To fulfil its constitutional mandate, the IEBC must produce definitive and final results as soon as possible: that is the first powerful argument. Should it fail to do so, it would breach the law.

A second argument is that any further delays in announcing the results will inflame tensions and play into the hands of those who – for whatever reasons – want to see to a rerun of the 2007-2008 election crisis.

The other course would be to proceed more slowly and deliberately with the checking of the multiple sources of voting data, before announcing definitive final election results. In practical terms this would mean ensuring that the agreed results sheets – which should have been signed by all the competing parties at each of the 33,000 polling stations -- can be reconciled with the accumulated results announced for all 290 constituencies by the local returning officers.

This meticulous procedure was followed for several constituencies in the vote counting on 6 March at Bomas Centre. But to follow it for all 291 constituencies would risk delaying the announcement of final presidential results beyond the constitutional deadline of 11 March. It seems that the IEBC officials judged that process to be too rowdy, acrimonious and time-consuming and ordered all the party agents to leave the secure counting centre in the evening of 6 March.

However, if a way to run this verification exercise in full view of the rival parties could be found,
it would meet many of the concerns over transparency voiced by Raila Odinga's Coalition for Reforms and Democracy and sundry other political groupings. The post-election manoeuvres have now reached a critical point.

By the end of 7 March, Odinga's organisation seemed to be moving towards a rejectionist position. To questions about whether the coalition would recognise election results that did not allow a full verification process, Odinga's Vice Presidential candidate Stephen Kalonzo Musyoka replied “probably not” as he strode out of his press conference earlier in the day.

A rush to judgement is in no one's interests. In the aftermath of the widespread technical and administrative failures in the 4 March elections, restoring their credibility is surely the main goal. That credibility is in question after the IEBC abandoned the biometric systems to verify the identities of registered voters on election day and subsequently ditched the problematic electronic transmission of results in favour of the old-fashioned manual systems of signed results and tallying sheets, constituency by constituency.

Certainly, it was always the case that the manual systems of results sheets would provide the formal and final election results. But the electronic transmission of the voting data from each of the polling stations and biometric voter registration were meant to provide a useful checks against tampering with the results. The absence of these safeguards require that the rival candidates show a herculean capacity to trust the system. To judge from the main candidates' public utterances this week, their
trust in the IEBC is fast evaporating.

So the best course of action would be for senior representatives from each of the competing parties to agree a way to test thoroughly all the results to be announced with the senior managers of the IEBC. That agreement should then be communicated to all of their respective followers with a warning that they can expect further and legitimate delays in the release of the results.

If the political leaders and the IEBC directors can agree – even at this late stage – on a solution that addresses most of the constructive criticism, trouble can still be averted. Without such attempts to reach consensus on the management of the results, given the administrative and technical malfunctions of the IEBC's reporting systems, the justifiably lauded patience of Kenyans could be stretched to the outer limits