By Nic Cheeseman, Gabrielle Lynch and Justin Willis
On 11 August, after a tense few days, incumbent President Uhuru Kenyatta was declared the winner of the 8 August presidential election in Kenya, defeating long-term rival Raila Odinga by 1.4 million votes.
Kenyatta’s Jubilee Party also performed well throughout the elections, which involved six ballots for different levels of government, including the parliament.
In contrast, the opposition parties – grouped under Odinga’s National Super Alliance (NASA) – lost a number of parliamentary seats and key county gubernatorial races, which are especially important under Kenya’s devolved constitution.
In declaring the results, Wanyonyi Wafula Chebukati, the chairman of the Independent Electoral and Boundaries Commission (IEBC), the body responsible for running the polls, emphasised the success of the elections, which he hailed as “free, fair, and credible”.
After two elections in 2007 and 2013, in which the outcome was rejected by the opposition, and against a background of vote manipulation that stretches back to the years of one-party rule, has Kenya finally, in Chebukati’s words, joined the “family of mature democracies that are able to conduct and deliver credible and fair elections”?
Resisting the results
Odinga and his partners in NASA think not. Shortly before the final results were announced, the chair of the NASA campaign, Musalia Mudavadi, announced that the alliance was rejecting them and led a walkout of all NASA agents and politicians from the national tallying centre. This denunciation came as part of a series of opposition press briefings, which began when Kenyatta had taken an early lead, only a few hours after the close of the polls. NASA first claimed that the results being released by the IEBC, which were supposed to be transmitted digitally from each one of Kenya’s 40 883 polling stations after the count, were being manipulated by the ruling party. At a second press conference, NASA produced what it claimed was a computer log showing that the IEBC server had been accessed using the login credentials of a senior IEBC official, who had been gruesomely murdered, in unexplained circumstances, days before the election. A day later, it repeated the allegation that the official results were wrong, but this time it claimed that an IEBC insider had given it the real results. According to these alleged results, Odinga was winning the election by almost 300 000 votes. Hours before the IEBC declared the final vote count, NASA released a further set of alternative results, which showed a more modest Odinga victory of around 60 000 votes.
NASA’s different and often contradictory statements tried the patience of many commentators, including some usually sympathetic to the opposition. The official results were better than expected for Kenyatta, but by no means implausible; although two opinion polls had given Odinga a one-point lead, a number of credible polls found that Kenyatta enjoyed a four-point advantage. And although the margin of victory was slightly larger than these polls predicted, Jubilee had campaigned hard – and spent lavishly – especially in a number of key swing counties. The results suggested that this campaign had paid off and were also closely in line with a sample parallel vote tally, conducted by the Elections Observation Group, an organisation of domestic observers.
The initial statements from international election observation missions were also positive, although some, such as that of the European Union, also raised important concerns, including the incumbent government’s flagrant use of government resources in the campaign and the number of dead people still on the electoral register. Overall, however, the electoral process, and what we currently know about the work of the IEBC, deserves praise. The immense logistical task of the elections, which involved hundreds of thousands of temporary staff, was handled well, while the digital verification of voters proved successful.
When the IEBC first introduced biometric registration and identification in 2013, as an attempt to curb electoral malpractice, it worked poorly. This time, the new, integrated kits worked well. In short, although the process was not without delays and mishaps, voters and observers alike were impressed by this technology and the way it was used.
Where are the forms?
Another aspect of the digital technology, however, performed less well, threatening to leave a nagging uncertainty over what otherwise looks like a largely successful process. After the count in each polling station, officials transmitted the results to the IEBC. At the same time, the election kits were supposed to take a scanned image of the paper results form (known as Form 34A) filled in at each polling station, and send the image to the IEBC’s tallying centres. The scanned images of the form were then supposed to be posted on a public portal, offering incontrovertible verification of the results that could be crosschecked against the constituency level tallies, on which the national result is based. At one point, the IEBC implied that it would wait for all of the forms to be available, before declaring the results.
Yet it did not end up doing so. In response to questions from the media and international observers, the IEBC stated on the night of 10 August that it had received almost all of the forms. But by the time Kenyatta was declared the winner on Friday evening, many were still not available online.
Two days after the election, the IEBC had suggested that a quarter of the scanned forms had not yet reached them; they have yet to give any subsequent figures for how many had been received. This is a serious cause for concern. Either constituency level officials were in receipt of the forms, but failed to pass a scan of them on to IEBC headquarters, or they approved results without the forms. Both outcomes would represent a major breach of protocol that would need to be explained. Meanwhile, another set of forms (known as Form 34B), showing the tallying of all those polling station forms at the constituency level, were not publicly available at all. At the time of writing – three days after the results were announced – they still are not, a failure that is doing nothing to reduce tensions. Clearly, such gaps are not in themselves evidence of malpractice. Indeed, the fact that within hours of the elections it was possible to go online, and see the results transmitted from each polling station, was a remarkable piece of transparency by any international standard. However, this current gap in the paper trail constitutes an information black hole that renders it impossible to check the polling station and constituency level results against the declared overall result -and thus leaves space for rumours and allegations to thrive.
NASA’s failures have compounded this problem. In advance of the elections, the alliance claimed that it would run a parallel vote tally, whereby results would be collected from party agents at every polling station, which could then be juxtaposed against the official announcement. But it was unable to do so. The Elections Observation Group found that NASA did in fact have agents in 84 percent of the polling stations, but many were poorly trained and had little idea of what they should be doing. It now seems unlikely that NASA will have its own record of polling station results, which could be used in a legal challenge to Kenyatta’s victory.
In the press statement before the declaration, one of NASA’s leading figures, James Orengo, said emphatically that it would not be going to court to challenge the result, which seemed to leave street protest as the only option. This approach was then reiterated on 13 August, when Odinga called on people not to go to work until a further statement was made on 15 August.
Meanwhile, Orengo called for people to prepare for mass action. In response to limited public protest of the results, the security forces cordoned off certain low-income pro-NASA areas. Within a day of the results being announced, a government parastatal – the Kenya National Commission on Human Rights -reported that at least 24 people had died from bullet wounds, most likely inflicted by the security forces. Such reports of police brutality demand investigation. They also raise the question of how the security forces would respond if Kenyans did actually try to come out in large numbers to contest the results.
What comes next?
Although residents of these low-income areas have so far suffered in the wake of the elections, the polls look like a success for Jubilee, most of all for Deputy President William Ruto, who has ambitions to run as president in 2022. For the most part, the elections show how digital technology can help to overcome problems of distrust during the voting process. The rush to declare the presidential result, in the absence of publicly available copies of all of Forms 34A and 34B, currently leaves a nagging uncertainty over what has been in many ways (the security response aside) an impressive process. Many of NASA’s claims seem implausible, but the very transparency of most of the system makes these gaps seem all the more significant – a reminder that digital technology in itself may not always ensure credibility, in the face of deep-rooted distrust. Swift action by the IEBC to make all the forms publicly available would help to close that gap, quiet claims of malpractice, and ensure that Kenya enters what is likely to be another fierce electoral contest in 2022, from a position of greater strength.
Confidente. Lifting the Lid. Copyright © 2015