Let hits, misses in polls lead to finer processes and outcomes

But let's step back into a 2022 presidential election that has caused joy and grief in equal measure.

Good compromise

In 2017, after the Supreme Court "nulled and voided" the presidential election on illegalities in law and irregularities in the process, these were some positive thoughts on what 2022 was supposed to look like. The idea one had here was to envision the future to reimagine the present. This was before the date of the repeat presidential election was actually confirmed (though yours truly humbly suggested then that October 24 was a good compromise (the repeat happened October 26)).

Let's think about what 2022 might have been in progressive terms. Picture this as November 2022 from a September 2017 lens. Kenya has just held Africa's first-ever paperless election (since then Sierra Leone has beaten us to the punch). The brave decision to use blockchain technology delivered an excellent end-to-end voter experience; making it possible to verify in real-time that your vote was correctly recorded, correctly counted and publicly announced to universal acclaim. This is a picture of 2022 in 2017, so the mobile and web voting experience has replaced the legacy of endless queues and the triple mystery of ballot papers, returning officers and Forms 34A to C.

The promise of real blockchain - you can't change the past, hack the present or manipulate the future - has borne fruit. This is the sort of technological M-Pesa-like moment that Kenyans trust. But it's not just about the technology. It's also about a re-imagined role for Kenya's electoral management body. After 2007, 2013 and 2017, political sense prevailed and the body was quickly reordered. Commission membership now reflects political balance, harking back to the 1997 IPPG deal. There is no secretariat, so implementation, that is, managing the poll was outsourced to private firms or, better still, civic groups bound by iron-clad contracts and service level agreements.

Coherent process

What about the day-to-day work that IEBC does between elections? Registration went back to where it belongs, in a fit-for-purpose Ministry of Interior responsible for all population registration as part of a coherent identification framework around a "single version (not source) of the truth". Boundaries work resides in a clean and modern Ministry of Land, Physical and Spatial Planning.

Mostly, the leap of faith into a full-tech election meant we get back to daily lives and business at the earliest. The technology helped, but the real gain is a professionally delivered free, fair, credible and transparent electoral process, and a believable electoral outcome. In short, credible people/institutions and credible processes/technology supporting an end-to-end experience that accepts majority vote and respects minority will. Doesn't the law say our election is a tech one?

A November election? Well, an August election doesn't quite work for business, while December interrupts our year-end holiday. This dream probably brings us to the question on IEBC's management and the Supreme Court's judgement of our August 2022 presidential election. The larger one is if we are learning and getting better. Let's call this Lesson One - seeing the future.

Since it's already 2022, and none of the above happened, we now await the court's 21-day process logic in the decision they rendered on September 5. This logic will rely on process improvements that IEBC insisted it delivered. Despite the court's inquisitorial "what are the facts" process and adversarial "beyond reasonable doubt" argumentation thus far, many will wonder what happened to the "balance of probability". In the court of public opinion, we call this the "benefit of the doubt".

This brings us to electoral management as the process and electoral justice as its outcome. We start better with the notion that technology is not a democracy. Kenya is still a manual election. It's run in two ways. We vote manually after being identified digitally. It's counted manually, despite the tech of public portals. Its ultimate credibility test is the hard copy ballots to which we assign our choices, not the expensive KIEMS kit gimmickry of unknown legal standing in court. Beginning from this viewpoint, the real electoral question we face is the second part: results. But what do results mean when the results are actual numbers? Here are some possible thoughts. We could start with what we expect the Supreme Court's detailed judgment on September 26 will say about 10 and something million votes at normal tea time on Election Day, 12.07 million voters an hour later, 13.73 million voters three and a half hours hence and 14.23 million voters the next afternoon with a few more when the KIEMS kits were supposedly logged off. This was just the KIEMS kits without manual votes. To recall, the total votes announcing the result were 14.21 million. Or we could go to why manual voting itself at 86,889 people was pretty much half or less of what one expects from the 235 - or 229 - places where KIEMS kits (one for each polling station, or voting queue) failed. Actually, that's not correct, since we had roughly 15 per cent more KIEMS kits in the field than the polling stations announced. What did the extra kits do for us?

Ballot boxes outside the Ruaraka constituency tallying centre at Stima Club on August 11, 2022. [Kelly Ayodi, Standard]

Voter register

Or we could go all the way back to the KPMG audit. Which started with a voter register (in the transition from the former ICT supplier to the current one) at 32.8 million (remember, this register was at 19.6 million in 2017), was rationalised to 21.97 million, then 21.71 million, then 21.64 million, then back to 22.18 million, before settling at 22.12 million. This is the audit that surfaced 970,851 anomalies in the register which were reduced to 362,458. There are no final numbers, but at some stage in the audit, the voter register comprised 22.43 million IDs and 58,000 passports.

For the record, the audit estimated our adults at 27.85 million of whom the number with IDs was put at 27.57 million (though National Registration Bureau reportedly thought they had 29.57 million IDs out there). Quick question. Out of 27.85 million adults, 27.57 million held IDs - with 22.44 ID/passports voters - of whom 22.12 million registered as voters, and 14.21 million voted?

That's a registration question about roughly equally proportionate numbers. Basically, a quarter of us voted for one side; another quarter went the other way, a further quarter registered but didn't vote and the final quarter didn't bother to register as voters. A bigger picture might be to view Kenya 2022 as pretty close to a 1-2 per cent victory margin. One suspects we have Lesson Two here - results rise and fall on the tyranny of numbers. Let's not go back to the "benefit of the doubt".

Indeed, this article is not really about the Supreme Court or the IEBC. Between what is freshly emerging as a new political divide that will hurt us more than it helps us, when is the point we take the real lesson? Yes, we patiently await the "long read" in which the Supreme Court will explain, for posterity and hopefully include thoughts on what a "nice and good" election looks like, its process and results in the logic behind the nine issues of appeal that it ran over like a ten-ton truck.

But isn't the real lesson - call it Lesson Three - that we refuse to learn lessons from the past? The current mood suggests that every day Kenyans will watch still more TV than get back to work. Could the first bit of work involve deeper steps towards an open national truth and reconciliation?

This would be a hard-going effort. Thinking of questions as simple as who is the real parliamentary majority in the National Assembly as the upper house, it seems we are still not agreed. Then, if we read the media correctly, the Kenya Kwanza administration is busy working very long hours to get its agenda up and running while the Azimio side is busy conceptualising its opposition role.

Sadly, it seems that the noise will not go away. If only we had an independent, unifying institution to cool temperatures down. Maybe that's the third lesson we refuse to get. Let's watch this space!