The electoral history of Kenya extends back to the early 1960’s following independence. However, it is the 2007 General Elections and the tragic events that followed that have the most relevance for the current state of elections management in Kenya. A commission of enquiry was established in early 2008 specifically to examine the electoral process in detail and make recommendations. The report (known as the Kreigler Report, named for the South African jurist who chaired the commission) makes specific recommendations, the most relevant of which are reproduced here, in order to give context to this case study.
Brief reference to Kriegler report with respect to Vote Counting and Results transmission, focussing on recommendations.
Recommendations of the Kriegler Report (p.138 of that report)
The Interim Independent Election Commission established following the troubled 2007 general elections was mandated to develop a modern system for collection, collation, transmission, and tallying of electoral data.
Accordingly, IIEC implemented a Results Management System that featured:
The new Kenyan constitution, adopted following the 2010 referendum organised by the IIEC, includes the necessary articles establishing Kenya’s current EMB – the Independent Electoral and Boundaries Commission (IEBC). Article 88, specifically mandates the IEBC to make use of “appropriate technology and approaches in the performance of its functions”
Under the new 2010 Constitution, Kenyans go to the polls in General Elections to cast six ballots for the following elections:
Each of the ballot papers is a different colour. There are six transparent ballot boxes whose lids match the colour of the ballot papers. Voter education and guidance by polling officials are designed to prevent the accidental placing of ballot papers in the wrong ballot box. This is important, as a ballot found in the wrong box will be rejected.
Holding six elections on a single day is an enormous logistical and operational undertaking.
Upon the close of poll, the presiding officer takes the following preparatory steps (with respect to the count):
Then, one election at a time, in the order determined in the regulations, the task proceeds with sorting:
* This is significant for Results Management as it means that there is a legitimate reason for differences between any calculated aggregation of polling station results and the results from Constituency level. Such legitimate differences must be clearly communicated and be subject to accountability mechanisms.
Once the sorting is complete, the ballots for each candidate are counted by the presiding officer. Then the invalid (rejected, rejection objected and disputed ballots) are counted. Candidates or their agents can, not more than twice, seek a recount. The presiding officer will then announce and record on the results form:
The results forms will then be distributed as follows:
The original is the official result and commences its journey to the Returning Officer at the Tally Centre. At this point, the provisional results will now be transmitted using the electronic system described below.
The Kenyan electoral regulations (which are gazetted and have the force of law) provide for the electronic transmission of provisional results. The regulations explicitly state that the results transmitted electronically are provisional – an important provision that eliminates any ambiguity as to which results matter.
The technical solution used has the following characteristics.
Challenges in 2010 and by-elections up to 2012
It must be emphasised that all electronic transmission and tallying is provisional and, while this meets the demand for rapid communication of results and provides the elections management body with an accountability mechanism, it is the paper forms from each polling station and subsequent paper form consolidating these results that comprises the official results transmission channel. Each presiding officer fills in a form detailing the results at the polling station. This form is copied several times and copies are distributed as follows:
All Polling Station results forms are handed over in a controlled manner to Returning Officers who follow detailed procedures for the further consolidation on Constituency Tally Forms. This tallying is subject to scrutiny by party and candidate agents who are also invited to sign the tally forms, further adding accountability.
Each Returning Officer will announce the results in their constituency. These results will be final in the case of the election of members of the National Assembly, but partial in the case of Presidential election. In the case of Presidential elections, each Returning Officer physically travels to the National Tally Centre in Nairobi and submits their constituency level tally forms for scrutiny and final consolidation by the IEBC whose chairman is the National Returning Officer.
At the polling station, up to two recounts can be undertaken, at the request of political party or candidate agents. It is worth noting that significant emphasis is placed on the signing by political party or candidate agents of the official results forms at all levels. Where an agent refuses to sign a form, the presiding officer or returning officer is required to record the fact of the refusal to sign on the given form. This is designed to ensure a paper trail that facilitates electoral dispute resolution.
Significantly, the regulations explicitly state that the absence of a candidate or their agent at the signing of declaration form or at the announcement of results shall not by itself invalidate the results announced.
Thereafter, citizens, candidates or parties may petition the courts to raise electoral disputes. In the case of most elections, it is the High Court to which electoral petitions must be submitted. In the case of the Presidential elections, it is the Supreme Court of Kenya that has jurisdiction.
At approximately nine pm on March 4th 2013, as the number of polling stations reporting provisional Presidential election results was steadily increasing and Kenyans at home and at the National Elections Centre settled down to watch the emerging political race, something went wrong on the main server and what had been a steady stream of arriving figures slowed to a mere trickle.
It took technicians four hours to first identify and then rectify the relatively simple problem that had caused the bottleneck. 24 hours later, this problem combined with operational problems in the field[1] caused the IEBC to essentially step back from its Results Transmission System and focus exclusively on the paper-based official results system whereby Returning Officers converged on the National Election Centre where their results were verified and announced.
In any single election, Presiding Officers and IEBC officials might have persevered and overcome the problems, but 2013 was different. First, there was a very high turnout (approximately 86% - a huge success by any measure) with long queues all day and some polling stations still voting four hours after the scheduled close of polls. Secondly, under the new constitution adopted in 2010, the IEBC had to hold no fewer than six elections on a single day. Its results management systems therefore had to cope with six separate elections:
This meant a total of one thousand, eight hundred and eighty two separate races with tens of thousands of candidates. An additional layer of consolidation was introduced at County level. IEBC decided to use the same basic model for results management – i.e. following the counting of ballots at each polling station, Presiding Officers would use a mobile handset to submit provisional results electronically, while official results would be entered on paper forms which would be delivered, along with other electoral materials to Constituency or County Tally Centres. There, the official results would be verified and tallied by Returning Officers. The additional number of elections meant that the software applications would be more complex than in previous years. More stringent security requirements also added to the complexity of the system architecture and the task of deploying the application to over thirty thousand devices and users.
The pre-election period (the 12 months leading up to March 4th 2013) in Kenya were characterised by two related problems – procurement of technology and delay. In addition to the significant challenges of delivering a more complex RMS, the IEBC also decided to conduct nationwide, fresh, Biometric Voter Registration (which they had piloted with some success in 18 of 290 constituencies in 2010) and also to introduce an Electronic Voter Identification Device. Other less procurement-intensive information system innovations included new systems for political party registration/membership and candidate nomination. As all these systems would interact by varying degrees (for example, the output of the Candidate Nominations System would be a vital input to RMS), their specification, development and procurement had to be closely coordinated. For reasons that, according to the Kenya Supreme Court judgement[2], merit further investigation, the procurement processes were problematic. First the competitive BVR procurement was cancelled and there was a three month delay in the commencement of voter registration. Later the EVID procurement process was delayed with a contract for EVID not signed until December 2012. The impact on the entire electoral process was direct – the 90 day period between the end of voter registration and any election as envisaged in the 2011 Elections Act had to be compressed to 60 days by the National Assembly. The domino effect hit all relevant preparations, including that for infrastructure and services and the time necessary to conduct all tests on the Results Management System was simply not available.
Since IEBC’s overall results management system was designed as a “belt-and-braces” system, the poor performance of the electronic Results Transmission System component, luckily, did not cause the election process as a whole to fail. Many stakeholders were unaware that all the technology was there for provisional results, but that the official results process remained in place and was a paper system. The IEBC was able to complete its official Presidential results tallying process two days ahead of the legal deadline of seven days and announce that Uhuru Kenyatta had been elected on the first round by the narrowest of margins. The second-placed candidate (amongst others) petitioned the Supreme Court of Kenya which, in a landmark ruling, upheld the results. The ruling includes the following analysis (emphasis added):
Counsel for the Respondents, by contrast, advance the position that the act of voting is a galaxy, whose central sun is the signifying of one’s choice by the marking of the ballot paper, and its subsequent deposition into the ballot box. Every other process before and after, revolves around this procedure, and involves only the ascertaining of the voter’s choice, and the sustaining of the voter’s right to make that choice. Counsel provides cases from the Philippines, that hold that even if there was a failure of all other support processes (in particular electronic ones), the right to vote and to express one’s self in universal suffrage is not defeated. Manual procedures must come into operation, to fulfil the electors’ expression of choice.[3]
While the RTS (electronic transmission of provisional results) was perceived as a failure, it did capture ninety percent of results in some twenty-one constituencies, and, by polling station, over fourteen thousand presidential results overall, and between six and nine thousand results for each of the other five races – well over fifty-two thousand results in all – representing a significant increase on 2010 throughput. While the quantity of provisional results fell significantly short of Kenyan expectations, the quality of what was transmitted, on closer examination, was extremely high – with provisional and official results matching in all but a tiny handful of cases.
Notwithstanding the problems experienced on March 4th and the days following, the IEBC held several elections just weeks later and successfully deployed both EVID and RMS. It is reasonable to conclude that, if the lessons of 2012 and 2013 are fully applied, Kenyan elections, going forward, will continue to be characterised by the widespread use of technology for the management of results.
[1] The problems in the field ranged from a lack of phones, SIM cards, missing or obsolete authentication credentials, poor training.
[2] Available at http://www.judiciary.go.ke/portal/full-judgment-presidential-election-petition-2013.html Paragraph 234 refers.
[3] ibid, paragraph 128
