What you need to know:
- Opposition supporters, frustrated with a series of poor quality polls, demand a system that does not break down.
- In order to ensure Supreme Court approval, the next election needs to be the best that Kenya has ever had.
- The challenge for the IEBC is that the fresh election will now need to meet this higher standard.
Kenya’s next election needs be a good one. Opposition supporters, frustrated with a series of poor quality polls, demand a system that does not break down. International election monitors, many who were heavily criticised for pulling their punches the first time around, will watch the “fresh” election through more critical eyes. And the Supreme Court judgment, which focussed heavily on issues of process, has set a new standard for Kenyan elections.
The question of the day is therefore whether a credible election can be held on October 26. If not, we may well see the losing party, international monitors, and the Supreme Court itself refusing to endorse the outcome. This would be a deeply problematic outcome, pushing the country into a third election and a further bout of political uncertainty.
However, none of the available options regarding how to move forwards are particularly palatable and all require conciliation and political compromise if they are to work – something that is currently in short supply. As a result, it would be unwise to bank on the next presidential election being the last in this cycle.
As expected, the Supreme Court’s judgment provided a long and thorough explanation of the reasons that the August 8 election was declared null and void. Instead of getting drawn in to a discussion of how many votes were “irregular” and which side won the contest, the Court focussed on issues of process and the failure of the IEBC to fully comply with requests for access and information.
Effectively, the four judges argued that if the process deviates sufficiently from the legal framework, an election can be invalidated whatever the result and whatever the evidence regarding the quantity of irregularities. In doing so, the Court set a new precedent for how elections should be evaluated not just in Kenya but also around the world.
This was a brave re-interpretation of electoral jurisprudence and one with far-reaching consequences. It means, for example, that there is less incentive for incumbents to artificially inflate their vote in the hope that a large margin of victory will make the result seem more emphatic, and harder to disprove in court.
The high standards demanded by the Supreme Court also have other implications. One is that the Court has set a standard far tougher than that applied by international election monitors.
Given the controversy and potential for instability that often results from questioning an election outcome, most international monitors will only sound the alarm when (a) there is overwhelming hard evidence of rigging and (b) it is clear that the losing side would have won otherwise.
This helps to explain why foreign observers and the Supreme Court came to different conclusions. International monitors were unwilling to take failures of process as evidence of manipulation, effectively giving the IEBC the benefit of the doubt.
The Supreme Court was prepared to go a step further, making the natural inference that failures of process, combined with a refusal to co-operate, meant that electoral officials had something to hide and hence had been up to no good.
The challenge for the IEBC is that the fresh election will now need to meet this higher standard. This is a massive task. Had the new criteria been applied in the past, it seems unlikely that any election in Kenyan history would have been upheld.
Even in the 2002 poll, where Mwai Kibaki won a commanding victory, a large number of forms went astray and the electoral commission failed to publish a full breakdown of the results to the polling station level. There were also breaches of the secret ballot, last minute changes to the electoral register, and in many areas results were not clearly announced.
There can be little doubt that, taken together, these breaches represented significant failures of process.
Thus, in order to ensure Supreme Court approval, the next election needs to be the best that Kenya has ever had. The question is whether this is feasible in just a few weeks.
In my last column I argued that the nature of judiciaries – which don’t have a legislative function – meant that Supreme Court’s judgment was unlikely to provide a clear blueprint for reform. As a result, I concluded that political negotiations were the only way that a credible and consensual fresh election could be held. The last two weeks have confirmed this analysis.
While the Court’s judgment was detailed and considered, the judges were careful not to overstep their authority and did not specify whether members of the IEBC should be removed from office, how the body should be reformed, or what kind of technology should be deployed.
These issues will need to be hammered out by the main parties and the IEBC – in line, of course, with the ruling of the Court. The fact that representatives of these institutions have been meeting is therefore a good sign. However, it is not clear that any of the options on the table can deliver the election that Kenya needs.
If the October 26 date stands, it will not be possible to conduct a wholesale replacement of the IEBC’s staff or to implement new technology.
There is simply not enough time. This means that the election will take place under conditions that Raila Odinga has already said are unacceptable to the opposition.
It also means that the elections will be run by a group of people who have spent the last couple of weeks trying to discredit and undermine each other, and whose working relationship has broken down. It would be extremely optimistic to expect a high quality and cohesive poll under these conditions.
Alternatively, postponing the election would allow a more far-reaching set of reforms to be considered. This could include the appointment of new staff, a review of the technology, and the introduction of new systems to protect the integrity of the results. But for this to happen, the election would need to be delayed not just by days, but by months.
In turn, this would generate two challenges. The first is legal. A postponement of this kind would require the constitutional 60 day deadline for fresh polls to be held to be suspended. There is a precedent for this, as it is effectively what happened when the gender quota was “frozen”.
However, it seems unlikely that judges who nullified the election of a president because they believe that they must defend the Constitution at all costs would be willing to set aside the same document just days later.
The second problem is political. A protected delay is unlikely to be popular with either party. While the Jubilee government is keen to hold the election quickly to remove questions about its legitimacy, Nasa knows that the longer the process rumbles on, the longer Jubilee has to enjoy the benefits of incumbency.
In other words, neither of the two main options on the table seems likely to generate a smooth election.
It may be that the best that can be hoped for is an electoral fudge in which no party gets what it really wants but secures just enough to be persuaded to participate.
This might include the appointment of additional staff to the IEBC to represent each party, measures to strengthen electoral technology so that there are no areas in the country from which digital transmission cannot take place, stronger security features for electoral forms, and an agreement that the final result should not be declared until all of the hard copies have been seen both by the IEBC and by representatives of the parties.
However, getting to an agreement on these issues is easier said than done in a political landscape marked by high levels of polarisation and distrust.
At the meeting on Wednesday, September 27, the IEBC and the parties made the right decision when they agreed to make Jubilee’s proposed amendments to the electoral regulations part of the negotiation process.
However, this subsequently led to the meeting being adjourned when it turned out that, despite the numerous images being circulated on social media, no one present had a copy of the documents with them. The second round of talks on the 28th fared little better, with both sides accusing the other of being intransigent.
As is usual in high stakes political negotiations, the two parties have entered the talks demanding things that they know that the other side will not agree to. Nasa’s proposal that election monitors should have a role to play in signing off the results will be a “red rag” to the government, while Jubilee’s proposed changes to the law contravene both common sense and the Constitution.
The problem is that whittling these kinds of demands down to a set of mutually agreeable reforms usually takes months. Right now, Kenya has days.
Nic Cheeseman (@fromagehomme) is Professor of Democracy at the University of Birmingham