Kenya faces threats of rigging given the composition and history of IEBC

A democratic election is a process and not an event. It involves institutions, rules, regulations and procedures that provide the framework for certain actions to be undertaken over time so that the event of casting a vote may lead to a democratic outcome. Even after the vote is cast, there are certain actions and activities which, if undertaken outside certain prerequisite procedures, may easily undermine the democratic outcome of an election. Let me explain this with specific reference to Kenya.

Our Constitution is elaborate on the issue of elections. Chapter Seven is devoted to “Representation of the People” and deals with this subject in three parts. Part One is on the Electoral System and Process (please note the word “process”).

Part Two is on the Independent Electoral and Boundaries Commission (IEBC) and delimitation of electoral units. The final Part three is on Political Parties. Apart from the IEBC as a specific institution which manages elections and determines electoral units, we have another institution related to the management of political parties: this is the Office of the Registrar of Political Parties.

Parliament has, in accordance with the Constitution, passed specific laws with regard to these two institutions. Hence holding democratic elections is not a simple matter: it is founded on an edifice that requires careful architecture.

It is important to note that our Constitution begins by laying down the principles that should guide our “electoral system” and not simply our “election day.” These principles, stated clearly in Article 81, include: Freedom of the citizens to exercise their political rights of belonging to political parties; campaigning for a party of choice; registering as voters and voting by secret ballot in a free, fair and regular elections based on universal suffrage; having elections administered by an independent, transparent, impartial, neutral, efficient, accurate and accountable body called the IEBC.

One would have thought that with such elaborate constitutional provisions, the 2013 elections should have been a tremendous success if the “rules of the game” were followed to the letter. The problem is: they were not followed.

The key arbiter or referee, the IEBC, was not fully prepared to run the game. Or even if it were, it was determined to run the game under other rules manufactured outside the framework of the Constitution.

When one of the players was dissatisfied with the outcome and went to the Supreme Court--the final arbiter in election disputes--the Court declined to look into the evidence on purely technical grounds.

Remember that the Chief Justice had earlier said that

the Court would not--as a matter of principle--deny any Kenyan justice purely on technical grounds. When it came to arbitrating an election dispute, that principle conveniently flew out of the window! More devastating was that two critical aspects in the “election process” had been completely mishandled by the IEBC due to corruption (now manifest in the “Chicken Gate” scandal). These were the registration of voters (registration equipment were unevenly distributed across the nation, favouring certain areas and under-serving others) and the counting of votes.

I have a practical example in a polling station in the Rift Valley where 178 votes were registered and 134 votes were cast. When the votes were finally “counted” at Bomas of Kenya it turned out that 434 votes were cast. Of course when this was fed into the computer it automatically rejected it having “known” that in that particular station only 178 people were registered to vote!

Hence the screen at Bomas of Kenya was rejecting lots of results as “spoilt votes”. The Spoilt Votes was becoming a “winning Presidential Candidate” before the IEBC decided to crash the server and begin manual counting without involving agents of political parties. The whole vote counting became a sham and the results were based on the malicious figments of the corrupt imaginations of the IEBC!

Now the same IEBC is asking to damp the registration equipment they used, lose billions of shillings and start yet another process of procurement undertaken by the same people, at break neck speed and obviously intended to fail! How naughty!

That is what Kenyans would not like to happen in 2017, hence the need to get “the process and the system” correct before the event becomes a fiasco.

But there is a group of politicians who speak with their mouths open and their minds closed. They seem to insist that we should not be concerned about the system and process and just wait for the election day for “numbers to decide who wins and who loses.” I have always said that the essence of a democratic election is based on the fact that “while the victor celebrates the results, the loser must accept the outcome as legitimate.”

This can only happen if the system and process is democratic, and hence leads to an event that produces legitimate results. I doubt whether the IEBC as composed today will drive us in that direction.

It must be realised that citizens may be enthusiastic and ready to choose their leaders democratically: but they may not be accorded the opportunity to vote because they are denied their identity as citizens: hence the importance of “the identity card (ID)”. Denying citizens IDs is part of rigging an election. Citizens may have IDs but they may not be registered to vote.

This, again, is another aspect of rigging an election. Citizens may have both the ID and the voting card but on voting day they may not access the polling station; or,even if they do, the voting technology (BVRs) may fail miserably, jeopardising their chance to cast their votes freely and fairly: this is yet another aspect of rigging.

Votes may be cast but may not be protected as such: others may be added from the dead or from some UFOs. Votes may be cast but may not be properly and fairly counted as happened in 2007 and 2013. That is the most obvious form of rigging.

Kenya faces today all these threats of rigging given the composition and history of the IEBC, the reluctance by the government to fund and equip the IEBC (though riddled with scandals as it is), and the manner in which the Jubilee regime is undermining the Constitution in the appointment of the Chief Justice and the Inspector General of the Police.

In the meantime, the government is least concerned about the proper issuing of IDs and the registration of voters.

We are all aware of a neighbouring country where the ruler has “won” one election after another because of the utter confusion in the electoral process.

That neighbour seems to have given some election tutorials to his friends on our side of the border.

When one adds the feverish process of building “election war chests” through massive corruption in government, one can see more “brown envelops” flying around as politicians, voters, churches, women groups, youths, sooth sayers and sundry are increasingly bribed to forego their democratic rights even before the elections are held.

Let it be noted that mismanaged elections have tremendous negative consequences on the political economy of a developing nation like Kenya.

They tend to produce “hands-to-mouth regimes” which inspire little confidence in their people as well as in the globalised world economy.

The current weak shilling, troubled businesses, dwindling investments and a scramble by bureaucrats and politicians to loot the state are all related to the inconclusive nature of the 2013 elections and the uncertainties surrounding the 2017 ones. Kenya: twenda wapi?