Kenya: Why does the electoral commission struggle with elections each time?

In depth
This article is part of the dossier: Kenya 2022: Who will win the great race?

By Jeff Otieno
Posted on Monday, 5 September 2022 15:17

Kenya's election results are announced
Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati announces the result in Kenya's presidential election at the IEBC National Tallying Centre at the Bomas of Kenya, in Nairobi, Kenya August 15, 2022. REUTERS/Thomas Mukoya

Despite being allocated billions of shillings every five years, the electoral body continues to fail the test of delivering a free, fair and verifiable presidential election leaving many voters worried about the country’s political future. Is delivering an uncontested presidential election in Kenya an impossible task? And what really happened this time round?

In 2007, a few days after declaring President Mwai Kibaki the winner of the presidential election, the electoral body chairman  Samuel Kivuitu walked back his statement insisting that  he was not sure whether the head of state had actually won the plebiscite.

“I am not sure whether Kibaki won the election. I was under fierce pressure from politicians and the European Union ambassadors to announce the results,” a frightened Kivuitu said.

The remark angered supporters of the Orange Democratic Movement (ODM) who believed Raila Odinga’s victory had been stolen at the eleventh hour in a dirty scheme that allegedly involved the electoral commissioners and powerful government officials in the Kibaki administration.

Kivuitu’s statement added fire to the already high political tension that had engulfed the country hours after the announcement of the results, leading to full-blown ethnic violence that claimed the lives of more than 1000 people.

It is a sorry situation that Kenyans vowed to avoid by ensuring elections are free, fair and verifiable. This noble goal has remained a mirage since the subsequent elections have all been contested and in some cases violently.

In 2013, for example, though the Supreme Court upheld Kenyatta’s win, it did not stop  supporters of Odinga hounding the then commissioners  of the Independent Electoral and Boundaries Commission (IEBC) out of office through violent protests that were held in the country’s major towns.

“The demonstrations which came to be known as ‘teargas Mondays’ were destabilising the major towns hence the commissioners led by their chairman Isack Hassan had to vacate office for the good of the country,” says political analyst John Charo.

Exit Hassan enter Chebukati

Exit Hassan and enter Wafula Chebukati in January 2017 who promised to avoid mistakes committed by his predecessor by running an independent electoral commission. 

However, this was not to be after the Supreme Court nullified the August 2017 presidential election noting that the commission had failed in its task of delivering a free and fair election.

History has repeated itself yet again in 2022. The declaration of William Ruto as the winner of the presidential election by Chebukati not only drew fierce criticism from the runner up  Odinga but also split the commission down the middle.

Four of the seven commissioners disowned the results terming them ‘opaque’ and accusing Chebukati of  locking them out  in the final stages of the verification of the  presidential results.

Odinga for his part accused Chebukati of rigging the elections in favour of the deputy president and called for his arrest.

We are demanding that Chebukati be taken to court even before the Supreme Court delivers its verdict. We must this time round end electoral theft and hold those responsible to account,” the Azimio La Umoja Coalition party flag bearer said 

Unlike in 2017 when the commission spoke with one voice at the Supreme Court, this time round it was divided into two factions – one led by chairman Chebukati and the other by deputy Juliana Cherera – each making sensational accusations of professional misconduct against the other.  The revelations of the behind-the-scenes  machinations at the commission has left many Kenyans wondering whether the country will ever have a free, fair and verifiable election or history will keep repeating itself every five years.

“Kenya’s elections are  the most expensive in the East Africa region and also rank highly in the continent in terms of money spent on technology and printing of high quality ballot papers… yet we still fail  to deliver. It is unfortunate,” observes Charo.

Challenges facing IEBC

Why is it almost impossible to conduct free and fair elections in the country despite the time and money invested in formulating detailed electoral laws and acquiring modern voting technology?

According to Chebukati there are six reasons responsible for the problem which “if not addressed  the future of IEBC will continue to remain bleak.”

a) High turnover of commissioners and staff

The IEBC chairman  attributes the problem to constant pressure from politicians to disband the commission every election period following disputed results which he says leads to the  loss of competent experienced staff who fear losing their jobs.

b) Highly ethnicized and divisive politics

The commission officials have had to deal with ethnic profiling during election season leaving them prone to attacks. In fact in 2017, IEBC’s head of technology Chris Msando was murdered under unknown circumstance and this year the commission lost its returning officer for Nairobi county’s Embakasi East constituency whose tortured body was found in Amboseli National Park four days after he went missing. The two murder cases are yet to be unravelled.

c) Late enactment of electoral laws

The  Kriegler Commission – the international commission which inquired into all aspects of the disputed 2007 general election –  recommended enactment of electoral laws be done at least two years to a general election but the political class have continuously ignored the recommendation. According to Chebukati the late enactment of laws undermines IEBC’s planning.

d) Inadequate and untimely disbursement of funds

The lack of financial autonomy makes it hard for the commission to operate independently.

“Funding is usually done during the election period after which it is curtailed thereby constraining subsequent activities,” says Chebukati, adding that allocation and release of funds by the National Treasury exposes the commission to state capture.

e) High cost of elections

The use of electoral technology and high number of polling stations occasioned by the capping of the number of voters per station consumes a huge chunk of the commission’s budget leaving little room for manoeuvre.

Chebukati also identifies the use of satellite technology for results transmission, the high number of security features on ballot papers as well as the huge wage bill for temporary poll officials as some of the reasons the commission always finds itself in the red.

f) Political interference

Chebukati laments that political interference continues to undermine the independence of the commission.

In fact in his affidavit to the Supreme Court Chebukati accused members of the powerful National Security Council and politicians allied to Azimio Coalition party of having pressured the commissioners not to declare Ruto the winner arguing that such announcement would plunge the country into ethnic violence. Both parties have denied the allegations instead accusing the Chebukati-led faction of trying to arm twist the government and the Azimio Coalition party officials for their own selfish ends.

“In our meeting I discovered that I was dealing more with auctioneers than commissioners,” Azimio Coalition party Executive Director Raphael Tuju said  in reply to Chebukati’s accusations, daring the IEBC chairman and commissioners Abdi Guliye and Boya Molu to disclose what they had discussed.

Loss of public trust

Charo fears that it will be very difficult for voters to trust the Chebukati-led IEBC on matters election.

“The accusations that have been made against the commissioners border on professional misconduct, I do not see Kenyans allowing them to organise another major election. The little trust that remained is gone,” he adds.

According to lawyer Elisha Ongoya, Kenyans need to create a culture where  the constitution is taken seriously to the extent that those in authority strive to do what is just and right for the society.

“However this requires a cultural shift which is difficult to legislate. It requires a behavioural change and introspection to accept that we are better off as a society by doing the right thing. However, we are doing badly on this index and we need to improve because our trust is very low,” observes Ongoya who is also senior lecturer at Kabarak University Law School.

Though  University of Nairobi Law Professor Migai Aketch concurs with Ongoya’s sentiments, he says the country needs to look afresh at the appointment process of commissioners adding that the guarantees of independence have to start at the recruitment stage.

“The interesting thing is that IEBC normally declares that it is independent but I always find it curious because in action it is anything but independent. What we always see in these constitutional commissions is a very opaque appointment process. They give us a veneer of transparency but they are never transparent.”

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