Filing our Presidential Election Petition at the Supreme Court
Posted by Raila Odinga on Friday, August 18, 2017
IRIN--More than a week after Kenya’s general elections, the opposition continues to dispute the results, but rather than calling for further protest action on the streets, it’s taking its challenge to the Supreme Court.
This briefing explores the key issues thrown up by the poll – in a country that is the region’s economic powerhouse but also one where electoral turmoil a decade ago spawned ethnic violence that left more than 1,200 people dead.
The poll pitted Uhuru Kenyatta – one of the country’s wealthiest men, vying for a second term in office – against veteran opposition leader, Raila Odinga. At aged 72, it is perhaps Odinga’s last stab at the presidency.
Kenya’s elections have historically been plagued by fraud and voter intimidation. Odinga and (many independent analysts) believe he was rigged out of the 2007 election, and possibly cheated again in 2013.
Four years ago the electronic voting system had suspiciously failed. This time Odinga’s opposition National Super Alliance, NASA, had pushed hard for reforms in the electoral authority, the Independent Electoral and Boundaries Commission. The IEBC’s promised safeguards were in place for a free and fair poll.
But after one of the world’s most expensive elections – an eye-watering $499 million – Odinga has again cried foul, and labelled the newly elected government as “computer-generated”.
Why did the opposition protest?
The murder and torture of Chris Msando, IEBC’s IT chief a week before the elections sent NASA concerns into overdrive. His killers have not been found.
The assumption was that as the custodian of IEBC’s computer system, he had been forced to reveal the passwords to the servers.
Nasa leaders led by Raila Odinga and Musalia Mudavadi at the burial of former IEBC ICT manager Chris Msando. PHOTO/FACEBOOK
Most opinion polls had predicted a tight race. So as the initial electronic results came in putting Kenyatta and his Jubilee Party well in the lead, NASA claimed the fix was in. They alleged that an algorithm had been planted in IEBC’s servers to undercount Odinga’s votes.
The IEBC moved fast to quash those claims. It acknowledged there had been an attempt to hack into the system, but that it had failed.
“On the question about passwords: no passwords were given to anyone within the Commission until on the eve of the election as part of assuring the integrity of the system,” the head of the electoral commission, Ezra Chiloba, said.
What undermined NASA’s argument was that it kept shifting the goal posts over the election malpractice it was exactly alleging. By its own tabulation Odinga had won handsomely, but it also unaccountably changed the numbers it claimed were his real votes.
Jubilee fought the election on its economic record, despite accusations that it had bungled the response to a savage drought, and allegations – and anger – over widespread corruption.
But it also campaigned hard and intelligently in key swing regions. NASA’s organisation by contrast was underfunded and shambolic, with reports of even polling agents – its key representatives inside the voting centres – having not been paid.
According to the Elections Observation Group, an independent monitoring body, NASA had agents in only 84 percent of polling centres. ELOG’s parallel tallying in roughly four percent of polling stations matched IBEC’s official results.
Nasa presidential candidate Raila Odinga addresses Mathare residents following reports that police used excessive force to deal with his supporters who were protesting the outcome of the presidential race. PHOTO/FACEBOOK
What should have settled the question quickly were the individual result forms from all the 40,000 polling stations, the so-called 34As, verified by the party agents. IEBC did not wait for all of them to come in and be validated before announcing Kenyatta and Jubilee’s victory.
The 34As should have been transmitted electronically to the national tallying centre. But even allowing for connectivity problems, the IEBC’s failure to account for all the forms and publicly post them on its website, days after the polls had closed, was an embarrassment.
“The absence of forms 34A, and the lack of clarity from the IEBC on this issue has bred mistrust and been very unhelpful,” Nic Cheeseman, professor of democracy and international development at the University of Birmingham, told IRIN.
“To put this right, it is essential that all of the forms are put up online as soon as possible so that they can be checked and verified. Until this is done, rumours of rigging through the manipulation of these forms will continue to persist.”
Police brutality and civil society clampdown
There were dire predictions of election violence before the poll – with lots of international journalists haring off to look for it. But what trouble did break out following the release of the provisional results was limited to Nairobi’s Mathare and Kibera slums, and the western city of Kisumu – historical Odinga strongholds.
So far the Kenyan Human Rights Commission has reported 24 deaths – although the police initially denied that anyone had died as it quelled the demonstrations.
President Kenyatta was moved to call for restraint from the police and security services, not usually noted for kid gloves when confronting the urban poor.
But this week the government also moved to de-register the Kenyan Human Rights Commission and the African Centre for Open Governance, a leading anti-corruption NGO.
Nasa presidential candidate Raila Odinga and his running mate Kalonzo Musyoka. PHOTO/FACEBOOK
The timing looks particularly bad as both organisations are likely to be involved in NASA’s legal challenge over the conduct of the election.
“It’s good that we’ve had a very democratic and peaceful election, but on the other hand we have to reflect because this government has muzzled civil society space,” said Nick Omwiti at the Centre for Human Rights and Democracy.
The devolution factor
This election was far more than just a presidential contest. Kenya’s constitution, adopted in 2013, devolved power to the local level. County governorship elections were fiercely contested, and NASA again came off worst.
Counties like Uashin Gishu in the northern part of the Great Rift Valley, where ethnic killings had erupted in 2007 between Kikuyus and Kalenjins, were relatively peaceful.
Nevertheless, incumbent Governor Jackson Mandago had tried to mobilise his Kalenjin vote base against the Kikuyu community he believed was likely to vote for his rival, Zedekiah Bundotich.
“This shows that the resilience of communities to stand up to such incitement is gaining ground,” said Maurice Amollo, head of the US development agency Mercy Corps’ violence prevention programme. “Despite fierce words and provocation, no one went for his or her neighbour.”
Many argue that devolution has helped Kenya overcome some of the deep, intractable, regional inequalities that are often the drivers of ethnic-based conflict. But the system has also channelled a great deal of power into the hands of the 47 governors.
“Governors enjoy this extraordinary patronage power that can reward or punish communities in terms of development priorities or recruitment patterns,” said Murithi Mutiga, Kenya researcher at the International Crisis Group.
Devolution “has brought divisions, but it’s better than where we were before,” Nick Omwiti of the Centre for Human Rights and Democracy told IRIN.
Nasa leaders during campaigns. PHOTO/FACEBOOK
“People should not make our history static: we’re not standing still. It’s not that we were once a violent country and will always remain so.”
While international poll observers and many Kenyans feel the IEBC performed credibly, deeply held suspicions about Kenya’s political system of power and patronage prevail.
NASA had at first refused to take its petition to court, which left it with few realistic options. It called for a work stayaway on 14 August, but that was weakly supported. Then it called for the UN to audit the election results, which was also rebuffed.
“Our decision to go to court constitutes a second chance for the Supreme Court,” Odinga said in a statement this week, one littered with thinly veiled attacks on what he believes is a partisan judiciary.
“The court can use this chance to redeem itself or, like in 2013, it can compound the problems we face as a country.”
Kenya’s poll was noteworthy for the record number of women that were elected, and a new more youthful group of officials.
There have now been calls for Kenyatta to usher in a more inclusive government, as a form of nation-building.
“The Kenyatta administration was not really good at including everybody and making them feel that they have a stake in the Kenyan project,” said Mutiga of the ICG. “If they do that, it’s symbolically very important.”
Charles Ensor is a freelance journalist, focusing on humanitarian and development issues.
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