Supreme Court decision leaves observers with an egg on their face


Former US Secretary of State John Kerry during a press conference at Nairobi. [Beverlyne Musili, Standard]

The Supreme Court decision nullifying the August 8 presidential elections has turned the tables on domestic and international observers who gave the poll a clean bill of health.

The use of their preliminary approval statements by anti-petition lawyers to advance their case at the Supreme Court had already worsened the situation for them.

And yesterday, victors in the decision latched on to the observers preliminary statements to question their impartiality, thoroughness and sense of appreciation of complex political environment in Kenya.

While the local observers reacted to say they were misunderstood, their international colleagues kept mum.

“The flak on observers is largely based on misunderstanding of our role and misappreciation of our methodologies. Most observers that I know of issued preliminary statements based on their field observation on voting process and not the technical aspect of transmission,” Mule Musau, Electoral Observation Group (Elog) national coordinator told Sunday Standard yesterday.

On election day, the group had 8,300 observers across all 47 counties and 290 constituencies. Of these 1,703 conducted a Parallel Vote Tabulation (PVT) exercise whose results matched the official results released by the Independent Electoral and Boundaries Commission (IEBC).

The PVT observers observed all the processes in sampled polling stations and recorded the official figures as announced by the presiding officers at the sampled polling stations. These figures were later used to draw the projections.

Although their July/August long term observer report had clearly outlined the transmission process, the preliminary report issued on August 11 did not speak to transmission. This despite the fact that transmission had been flagged out as a contentious issue by NASA.

Contentious issue

“Very few or none of observers could speak to transmission because we lacked technical expertise and authority to delve into it. Our initial forays into that route encountered accessibility issues which even surfaced at the Supreme Court when they ordered an audit,” Musau explained.

In the July/August report, Elog had made it clear that its understanding of the process was that presiding officers would, in presence of agents, type results into KIEMS tablets as captured in Form 34A, scan the form using the tablet, confirm the typed results and electronically transmit them to both constituency tallying centre and the national tallying centre.

“Unfortunately we may have to bear the political aspersions but as far as our processes were concerned, they were scientific, foolproof and verifiable. Our understanding thus far is that the court has nullified the election on the basis of credibility of the process and until we get the details of the ruling, we cannot say much,” Musau added.

He however said Elog’s longterm observation team kept pointing out issues which were affecting the integrity of the process, from lack of comprehensive voter education, IEBC’s failures on audit of voter register, prevalent use of hate-speech, violence and intimidation to lack of foolproof legal framework governing the election.

Other organisations which gave the poll a clean bill of health and who had not responded to our inquiries by yesterday included the Carter Centre, the African Union Observer mission and the EU observer group.

However, a review of some of their preliminary reports reveals that some of them raised credibility issues even as they approved the process. For instance, in their statement two days after the election and before a winner was pronounced, the Carter Centre acknowledged that the electronic transmission of results from the polling stations to the 290 constituency centres “proved unreliable.”

“The IEBC advised election officials to revert to the paper copies of the results forms, which provided a reliable mechanism to tabulate the results. Unofficial results were also transmitted to the national tally centre, where they were posted on its website.”

“Unfortunately, the early display of vote tallies at the national level was not accompanied by the scans of polling station results forms as planned, nor labelled unofficial, leading to some confusion regarding the status of official results,” Carter Centre said on August 10.

The Centre’s short-term election observation mission was led by John Kerry, former US secretary of state and Dr Aminata Touré, former prime minister of Senegal. It included more than 100 observers from 34 countries in Africa and around the world.

On election day, their team was spread in 424 polling stations in 185 constituencies across 39 counties, and the vote tallying process in 36 constituency tallying centres.

Lack of transparency

The centre also regretted failure to apply the Campaign Financing Act in the elections, failure to punish breaches of electoral code of conduct, use of courts to “delegitimise the authority of IEBC”, lack of transparency on the part of IEBC and intimidation of judiciary.

They also complained of lack of transparency in the audit of the voter register, IEBC’s failure to act on integrity issues raised against 106 aspirants, chaotic party primaries.Later on August 17, Carter Centre issued another statement regretting acts of violence and urging IEBC to finalise the posting of the Form 34As as expeditiously as possible ahead of the August 18 deadline to file presidential petition.

The decision also called the bluff on risk assessment agencies which had predicted hard times for the opposition in overturning the election. Exotix Capital had predicted that absence of supportive or corroborative evidence from observers would weaken NASA claims on poll theft.

Immediately after the decision was announced yesterday, Exotix send a positive outlook with Faith Mwangi, their Nairobi analysts stating:

“This unprecedented ruling gives a much-needed boost of confidence in the system, with the population suddenly seeing election irregularities being handled correctly via the courts.”