Kenya’s 2017 Election(s): A Failure of Technology or Good Governance?
BY: Jeffrey Smith and Arthur Gwagwa
The Kenyan Supreme Court’s ruling that nullified last month’s re-election of President Uhuru Kenyatta was a watershed moment. Hailed as the first of its kind in Africa, Kenya became the first country to have its election result annulled, and a fresh election ordered by the country’s Supreme Court. Citing widespread “irregularities” in ballot counting, the unreliability of electronic voting machines, and the absence of transparency at the Independent Electoral and Boundaries Commission (IEBC), which oversaw the vote, the court went on to say that “[If] candidates do not respect the rule of law; if the average citizen, political parties and even candidates themselves do not perceive them as free and fair, elections can, and have led to instability.”
A crucial issue at hand in Kenya, and one that has been the subject of intense debate in recent weeks, is whether the election failed simply due to technological challenges or due to a systemic lack of good governance and respect for democratic rights. Kenya is certainly not alone in this regard. Early on, technological advances were regarded – wrongly, it turns out – to be a panacea for potentially rigged or otherwise flawed elections that have allowed many African leaders to further entrench their rule, often for decades at a time.
Getting to the root of this quandary, and deriving key lessons learned from Kenya’s latest democratic experiment, will be essential before the country’s next election, tentatively slated for October 26. It will also have wide-ranging ramifications for the future of elections in Africa.
From a technological standpoint, it would appear that, on the whole, officials in Kenya either wilfully ignored correctable mistakes made in past elections, or were unconcerned with their consequences. To the government’s credit, and presumably in order to avoid past complications, a French-based company was contracted to verify and authenticate the voting process in line with best practices. The Kenyan Supreme Court rightfully noted that “technologies are imperfect,” and thus recommended that the IEBC install a complementary vote tallying system should the technology fail (which, it often does, even in the world’s most advanced democracies). Here, the IEBC failed to act accordingly. And this failure ultimately formed the crux of the court’s decision to annul the election, stating that the IEBC failed to ensure a verifiable transmission of results.
This critical letdown by the IEBC was tantamount to an overall failure to adhere to the rule of law, and indicative of the larger democratic backsliding that has taken place in Kenya over the last several years, infecting domestic institutions from the executive on downward; the same concerns that domestic and international civil society, as well as Kenya’s political opposition, have raised with regularity since the current government took power in 2013. Indeed, this current state of affairs has led citizens and opposing political candidates, namely Raila Odinga, who has finished second to Uhuru Kenyatta in the previous two elections, to perceive the 2017 poll as being inadequate, neither free nor fair.
As correctly noted by the Kenyan Supreme Court in their announcement to annul the election, this deep-rooted sense of grievance and marginalization can ultimately lead to social instability, as exhibited in Kenya and elsewhere across Africa. What is more, the conduct of the IEBC during Kenya’s voting process was reflects of one of Africa’s biggest and most pressing challenges today: a lack of independent and accountable institutions. This evident weakness now manifests in the technological sphere, which is particularly concerning given that a growing number of African countries, like Zimbabwe, for instance, are now adopting biometric technologies that can lead to violations of basic privacy and electoral rights, and further blur the lines on what constitutes a truly free, fair and credible election.
When human rights violations take place within a technological context, it can lead poll observers, monitors and even seasoned election experts to draw false conclusions that can entrench wholly undemocratic and illiberal practices. For instance, in Kenya, many have identified the problem as one of a lack of proper oversight of election technology. However, both current and historical facts contradict this perception. More to the point: what we have in Kenya is a government that is on an unequivocal path to erode the rule of law and the democratic tenets that underpin it. For instance, President Kenyatta’s incendiary verbal attacks on the judiciary and a petition to oust the chief justice point to a deeper problem of a lack of respect for the rule of law that just happens to now be playing out in a technological sphere. This is not a recent phenomenon. Several observers have long warned against an “authoritarian contagion” in East Africa, with Kenya being just the latest and most apparent manifestation.
In the same way, a failure to respect the rule of law in 2007 led many Kenyan citizens to believe the election was not free and fair, thereby leading to the violent instability that resulted in over 1200 deaths, tens of thousands more displaced, several ICC indictments, and millions of citizens disenchanted with a warped sense of what “democracy” means and entails for them.
Other examples from Kenya’s recent past suggest a concerted disregard for basic human rights, including at the international level. The political interference and intimidation of witnesses that led to the collapse of the case of those accused of the 2007 post-election violence demonstrates a pattern of sacrificing liberal ideals, such as respect for the rule of law, for sheer political survival. These instances, among many others, compelled Freedom House to cite Kenya as a key example where democracy “broke down” between 2000 and 2015.
Placed in this wider and more appropriate context, Kenya can be rightly viewed as one of the emerging influential illiberal powers that have sought to actively contest genuine democratic development. President Kenyatta’s assault on civil society, basic civil liberties and political rights, the continued verbal attacks on Supreme Court judges, a lack of cooperation with the ICC, and the IEBC’s reluctance to subject itself to scrutiny are all clear examples of a determination to draw new lines that constitute a lowered, and wholly unacceptable, democratic standard.
Despite some of the complexities of election technologies, this was not an overriding problem in Kenya. The technology employed in the most recent election, which combined software-independent systems based on paper ballots to protect and verify the audit trail, represent today’s best practice. To strengthen this robust system moving forward, and certainly before the rescheduled election next month, donors and election monitors (if they are allowed back in the country) should seek to improve the oversight of the IEBC and ensure that the commission and its staff independently discharges its constitutional mandate.
At a wider political level, the Kenyatta government must begin to show a commitment to respect the rule of law, including the country’s judiciary, given its vital role as an effective and independent arbitrator in political contests. Overall, the continued lack of respect, and downright disdain, exhibited by the government now in power poses significant threats to the country’s short- and long-term stability. Free and fair elections are a cornerstone for sustainable development, in Kenya and elsewhere across the world. That credible elections are in short supply is indicative of larger political issues, and it starts at the top with those in power.
Simply put, Kenyans both expect and deserve better from their democratic processes, and from their current elected leaders in particular. In this regard, the United States and European Union would be well served to use their diplomatic clout and collective leverage – from now until October 26 and beyond – to remind those same leaders of Kenya’s indispensable, albeit flawed, role as a leading commercial, economic and political linchpin on the continent. A free and fair election in Kenya will have profoundly positive effects on the country’s long-term stability and for the prospects of democracy in the region writ large. The opposite holds true should yet another election be perceived as acutely compromised or otherwise stolen by those who are meant to serve the best interests of Kenya’s nearly 50 million citizens.
Jeffrey Smith is the executive director of Vanguard Africa, a nonprofit group that supports free and fair elections in Africa. Follow him on Twitter at @Smith_JeffreyT
Arthur Ernest Gwagwa is a Research Fellow at the Centre for Intellectual Property and Information Technology Law at Strathmore Law School in Kenya
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official position of the African Academic Network on Internet Policy.