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Focus on integrity of Kenya's elections

More details about a decision by the Kenyan Supreme Court to annul the August 2017 elections have emerged.

The court relied heavily on provisions in the 2010 constitution and recent electoral reforms in nullifying the August elections.

It is in relation to this new electoral regime that the Independent Electoral and Boundaries Commission of Kenya (IEBC) has been ordered to organise fresh elections in October, after violence linked to elections in 2013.

"We have shown in this judgment that our electoral law was amended to ensure that in substance and form, the electoral process and results are simple, yet accurate and verifiable. The presidential election of August 8 2017 did not meet that simple test and we are unable to validate it," the court said.

Kenya has about 19.6-million registered voters. Among the irregularities cited by the court is that the IEBC announced election results without receiving 25% of counted votes from districts. Some result forms lacked security features and were submitted unsigned by presiding officers.

These included:

  • Form 34A: 10,438 of the forms, out of a total of 41,451 were missing when the result was declared. Some presented by IEBC were carbon copies while others did not bear the IEBC stamp, and some had the IEBC stamp on a photocopy of the original.

  • Form 34B: 10 were illegible, 56 of them had no watermark, 10 of the forms were not signed by the returning officer, 66 bore no stamp, 31 forms had no serial number and 32 were not signed by party agents.

  • Form 34C: had no security features or serial number. "The form looked like a photocopy."

Kenyan Electoral Commission Chairman Wafula Chebukati has come under increasing pressure regarding the findings. He has demanded the suspension of ICT director James Muhati, ICT coordinator Paul Mugo as well as ICT officer Boniface Wamae, whom he holds personally responsible for the poll irregularities.

Voter registration is a key factor in elections. The Zimbabwe Electoral Commission (ZEC) promulgated new regulations in July in an attempt to ensure that the system is not abused.

In Zimbabwe, Section 5 of the new regulations includes that up to 11 different documents can be used as proof of residence by a registering voter. The last resort for the voter in the absence of these documents is to file an affidavit confirming residence.

According to the Zimbabwe Election Support Network (ZESN) organisation, the major weakness of this section is that it does not provide adequately for the registration of voters in the Diaspora.

"A person outside the country would need to return and physically present themselves before a voter registration officer in order to appear on the voters' roll. It is ZESN's view that the constitution envisages the Diaspora vote and accordingly the regulations must create a framework," the organisation said in a review of the new regulations.

The new regulations seem to have sidestepped the contentious issue of providing proof of residence by registering voters. In South Africa the Independent Electoral Commission (IEC) was found to have acted inconsistently with its rule of law obligations in 2015 for its failure to record addresses in a common voters' roll.

Electoral reforms in constitutional democracies become part of the law and disputes are interpreted by courts. This makes it difficult to circumvent them without either breaking the law or being in contempt of court.

In Uganda, politicians have tabled three motions related to a constitutional amendment that intend to change electoral law. The three motions are on the presidential age limit, transition and a Constitutional Review Commission.

The age limit in the current electoral law regime will bar President Yoweri Museveni from contesting the 2021 polls.

Sub-section (b) of article 102 of the Ugandan constitution says candidates must be of an age no less than 35 and not older than 75. Museveni is 73 years old and will therefore be too old to stand in 2021 under the present law.

In Zimbabwe, where no such clause exists, 93-year-old Robert Mugabe has expressed his intention to contest the 2018 polls on a Zanu-PF ticket.

Lawmakers have also had to take into account the use of electronic technology in electoral reform. In Brazil all voting is done electronically, while in India it is used for the general election with varying degrees in other poll formats.

Kenya is among the first African countries to use electronic voting but the court there found that there had been irregularities in the system. (Namibia was the first African country to use electronic voting in 2014.) The absence of 3G and 4G connectivity affected the speed of the submission of electoral results from some districts in Kenya, which led to the election results being announced before they'd actually been formally counted and checked.

The tangible impact of mobile technology has had to be taken seriously in both the US and German elections, for example.

The power of social media to manipulate electoral processes has seen unscrupulous Facebook accounts taken down in the US with a Federal probe under way this week, which sees the most powerful digital start-up companies called to give evidence about manipulation.

Richard Allan, Facebook’s vice-president for Public Policy in Ireland, said their push to remove fake accounts was an attempt to prevent misuse of the social media platform.

"In the month before the election, we removed tens of thousands of fake accounts in Germany," said Allan.

"After reports of foreign interference in the run-up to the US and French presidential elections, we also worked closely with German officials on a number of initiatives to fight disinformation and make Facebook a safer and more secure environment for genuine civic engagement," he said.

The monitoring of the integrity of the electoral process is increasingly being questioned around the world. According to the ACE Electoral Knowledge Network website, there are distinct mandates involved in assessing the integrity of an election.

The mandates are as follows:

  • The mandate of election observers is to gather information and make an informed judgment without interfering in the process.

  • The mandate of election monitors is to observe the electoral process and to intervene if laws are being violated.

  • The mandate of election supervisors is to certify the validity of the electoral process.

The European Union Election Observer Mission was part of the international contingent in the Kenyan poll. Many missions declared the polls free and fair but since then have overturned their findings.

Marietje Schaake, the chief observer of the EU mission, emphasised the importance of accountability at all levels of the process in her response to the judgment.

"We also believe that investigative bodies should be thorough and prompt in investigating electoral offences, so people at all levels are held to account," said Schaake.

She admitted that the EU had been mistaken when it said the Kenyan elections were free and fair.

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