The decision by the Kenyan Supreme Court to annul the reelection of President Uhuru Kenyatta brought back memories of the October 1998 decision by the British House of Lords that stripped the late Chilean President August Pinochet of his immunities and allowed for his arrest to answer for the over 3,000 tortures and deaths that his regime allegedly orchestrated during the 17 years of his dictatorial rule. Only two years later in 2000, the case was used as a precedent when a Senegalese judge indicted the exiled Chadian dictator Hissene Habre on charges of torture. Hopefully, the Kenyan elections case will help to quell the pervasiveness of elections manipulation by sending a stern message to the powers that be and those who administer election processes that they are not beyond the reach and sanction of domestic and possibly even international law. This case, which is the first on the African continent to overturn the results of a presidential election, is not completely novel to us but does contain a few lessons.
After an acrimonious campaign, on 8th August this year some 15.5 million Kenyans went to the polls and exercised their votes for various national, regional and local positions, including the presidency. The major parties vying for the presidency were the Jubilee Party of President Uhuru Kenyatta and the National Super Alliance (NASA) of Mr. Raila Odinga, and almost from the start of the counting of votes on 9th August, the opposition began to cry foul. However, on the 11th President Kenyatta, with about 54.3% of the votes to Mr. Odinga’s 44.7%, was declared the winner by the Independent Electoral and Boundaries Commission (IEBC) and his win was sanctioned by elections observers who, while detailing many difficulties with the process, certified the elections as largely free and fair.
Not surprisingly, following the trend set in the elections of 2007 and 2012, in the latter of which over 1,100 people were killed in post-elections violence, protests and riots have resulted in the death of some 30 persons. In both the previous elections the opposition took its grievances to the court to no avail, and statements emanating from it indicated that it would not do so on this occasion. However, on 18th August, hours before the period for filing an elections petition expired, the Alliance filed one.
The challenge is rooted in the improper handling of two forms: one coming from each of the 40,800 odd polling stations and the other from 290 constituencies, which were to be approved by representatives of the contesting parties, scanned and electronically transmitted to the central office in Nairobi where they were to be totaled and immediately placed online for crosschecking to validate the ballot. Mysteriously, the official who was to overlook this process was found murdered on 29th July, only days before the elections, and the system broke down on election day. In a nutshell, pointing to numerous irregularities, the opposition claimed that millions of votes were tampered with and the IEBC falsified the elections results in the days between the completion of voting and the declaration of a winner.
A decision of the Kenya Supreme Court cannot be appealed and it was widely criticised for its 2012 decision, so this time around its sessions were televised. The court must have been very peeved when the IEBC did not obey its demand that the opposition be allowed access to its computer servers, documentation, voter identification kits and GPS data. In its decision, the court found that the commission ‘committed irregularities and illegalities in the transmission of results [that] affected the integrity of the poll’ and so ordered that another election be held within 60 days. The opposition was jubilant and Kenyatta supporters sombre. The president said that while he disagreed with the decision he will abide by it. Mr. Odinga claimed that members of the IEBC ‘committed a criminal act’ and should be in jail. He is also demanding that some of them be removed and an audit of the system takes place before another election is held. The chairperson of the commission acknowledged that any of its employees who had acted illegally should be prosecuted.
The opposition petition was filed 7 days after the Jubilee party was declared the winner and the Kenyan court gave its decision 2 weeks later. Thus, the first lesson for us in Guyana has to do with timeliness. Our law also specifies the period within which an election petition must be filed and also requires that a petition be completed in a timely fashion [National Assembly (Validity of Elections) Act 1:04]. Yet, after the elections in December 1997, a petition by Esther Perreira was filed nearly 6 weeks later and the decision by Justice Claudette Singh which, at least in her oral presentation, invalidated the 1997 election of Ms. Janet Jagan, came some two years later in January 2001. The general and regional elections of 2015 are long gone but we are still awaiting the completion of a petition having to do with its validity.
It is said that almost 80% of general elections worldwide now attract election observers who do help to quell protest in free and fair conditions and legitimize domestic protests when elections are manipulated. The next lesson for us is that parties need to be vigilant as observers do not stop politicians from trying to steal elections, and according to Judith Kelley of Duke University, politicians still cheat about 17% of the time. Professor Walter Mebane, who specializes in election forensics, which uses statistical methods to try to determine whether election results are accurate, ran the Kenyan data and claimed ‘It was unlike any data set I had ever seen. Every single indicator came up signaling anomalies. It’s a huge red flag that something weird is going on’ (https://www.isr.umich.edu/cps/ project_ wmebane001.html).
Opposition leader Raila Odinga accused the international observers of putting stability ahead of legitimacy and moving fast to ‘sanitize fraud’. However, in defending its work in Kenya, the Carter Center, whose mission was led by former US Secretary of State John Kerry, drew attention to its August 10th statement that ‘election day voting and counting processes had functioned smoothly but that the electronic transmission of results proved unreliable’.
The final lesson to which I want to draw attention is the fact that just as the Pinochet case seriously diminished the immunities of heads of states and opened the door to their prosecution and incarceration, members and employees of election commissions are now on the legal radar and hopefully will be more circumspect in their handling of the elections process. As in Guyana, this case indicates that counting votes at the place of poll is only one aspect of the system that can prove insufficient when there is only one national tabulation centre seeking to monopolize the process. Notwithstanding the pleading of those who claim it could cause confusion, a more open collating process in which the media and others are encouraged to participate at national and local levels should be encouraged.
The killing of the IT specialist in Kenya must have focused the attention of both the opposition and the observer missions on the national tabulation process. In Guyana, all the unusual delays in appointing the chairperson of the elections commission and the dubious activities that are taking place about it are already centreing public attention on possible elections manipulation involving that body. The hope must be that our politicians learn from these experiences and find better ways than elections manipulation to pursue and protect the interest of their constituencies.