By Mathieu Mérino
The 2007 Kenyan elections were marked by violence of such an unexpected intensity that it took national and international observers by surprise. In the aftermath, the violence that swept the country for several weeks had a far-reaching impact on the Kenyan social, economic and political fabric. More than 1,200 people were killed and some 600,000 displaced from their homes and damages of $ 1.5 billion were recorded. [1] The lack of both reliability and impartiality of the modalities of election organisation (electoral boundaries, registration on voter rolls, compilation process, transmission and, notably, verification of results) largely contributed to unleashing the violence. These failures however, do not fully explain the intensity and the ethnic dimension of the clashes. The latter carries causes that are profound and complex, and which has historical, social and economic background in Kenya.
The Kofi Annan-led dialogue, conducted at the start of 2008 to stall the violence and tension, resulted in the formation of a coalition government between the main opponents. In February 2008, the main parties in the electoral dispute signed the Agreement on the Principles of Partnership of the Coalition Government. One of the main responsibilities of the coalition government was to spearhead fundamental reforms. Key among these reforms was the enactment of a new Constitution. Kenyans approved this new constitution by a two-to-one margin on the 4 August 2010 referendum organised in a free and fair manner by the Interim Independent Election Commission (IIEC).
Following the adoption of the new constitution, the Independent Electoral and Boundaries Commission (IEBC) was created in 2011 and on 4 March 2013, six elections were held simultaneously for the first time in the electoral history of the country: Presidential, parliamentary and local government. On 9 March, following a tense but relatively peaceful election, the IEBC declared Jubilee Coalition’s Uhuru Kenyatta as president elect. The results were generally well accepted by the main opponents.
The electoral reform process (2008-2011)
The current electoral framework is the product of a long and protracted reform process since the inception of the multiparty system. However, some recent factors have clearly contributed to the emergence the of legal electoral reform process in Kenya: the lack of legitimacy of results in the 2007 General Elections and the results emerging from post-election audits. The post-election violence in 2007 and 2008 made it painfully clear that urgent reform in Kenya’s political architecture was needed. This was recognised within the National Accord Agreement that Kofi Annan helped to facilitate between the rival parties. The Waki Commission (in charge of the investigation on post-electoral violence) and the Independent Review Commissions (IREC), headed by a South African judge (Kriegler), produced reports on the 2007 elections, highlighting the different responsibilities and electoral malpractices as well as recommending institutional reforms. IREC’s report, relying in particular on the work of national and international observers [2] as well as on an intern audit of the Electoral Commission of Kenya (ECK), underlined the limits of the ECK in the management of elections: lack of transparency, bias, disastrous communication strategy, poorly trained staff, etc. [3] Following these reports, and in order to restore public confidence in the Electoral Management Body (EMB), the ECK was dissolved and replaced by an interim structure, the Interim Independent Election Commission (IIEC). The function of the IIEC was to reform the electoral process and management of elections in order to institutionalise free and fair elections. [4] The IIEC’s duties were further complemented by the Interim Independent Boundaries Commission (IIBRC), in charge of the review of the existing constituency boundaries to reflect geographical size and population.
The 2008 Constitution of Kenya Review Act identified four main institutions that would be involved in the reform process and their mutual relations, namely: a Committee of Experts (CoE) on the Constitutional Review, the Parliamentary Select Committee, the National Assembly and a popular referendum. It is within this context that the CoE was charged with consolidating and harmonising proposals for a new constitution from the review process. The CoE held a series of consultations with various stakeholders (civil society groups, religious organisations, private sector, registered political parties, parliamentary political parties, the two Principals in the Coalition Government, the Parliamentary Select Committee on the Review of the Constitution and parliamentarians) including the other organs of reform, especially the IIEC and the IIBRC. The CoE organised various thematic consultations that sought expert opinion in particular on the ways in which the principles of inclusivity and affirmative action could be implemented in the Constitution, as there were concerns about the way in which they were implemented in the electoral systems for Parliament and the devolved governments. The opinion consultations included several in-house meetings with the IIEC.
The Constitution consolidates incremental reforms initiated by the recommendations of the Independent Review Commission (IREC) and introduces further fundamental reforms, in particular at the initiative of the IIEC. The tenure of IIBRC and the IIEC lapsed on 27th November 2010 and 14th November 2011, respectively. Prior to the lapse of its tenure, the IIBRC had submitted its report to Parliament, which forms part of the reference materials for the Independent Electoral and Boundaries Commission. The Independent Electoral and Boundaries Commission Act of 2011 that facilitates the establishment of the IEBC has been enacted (See annex 3 for more details on the IEBC implementation).
The current electoral framework
Since the 2007 elections, the Kenyan electoral legal framework has been completely overhauled. The Constitution and all the relevant laws have been replaced, the Judiciary reformed and the dispute resolution mechanisms much expanded. Thus, the 2013 General Elections in Kenya took place under a completely new legal framework. Most of the 2008 Kriegler Commission’s recommendations were adopted in the 2010 Constitution. [5] Otherwise, the 2010 Constitution entrenches an expansive Bill of Rights which strengthens protection for the civil and political rights relevant to elections, access to information and freedom of the media, and gives special attention to the rights of women, persons with disabilities, children, young persons, minorities and marginalised groups.
With the enactment of a new Constitution came the enactment of new election laws and regulations, mainly [6]:
The new transformed framework [7] is in accord with Kenya’s international and regional obligations related to the conduct of democratic elections. Kenya has ratified the major international instruments that cover electoral rights. [8] Under the 2010 Constitution such treaty obligations are incorporated directly into Kenyan law at ratification and can be relied on in court.
The crucial role of the IIEC and the IIBRC in the electoral reforms process (2008-2011)
After the dissolution of the ECK, one of the main functions of the IIEC was to provide input to the government and the National Assembly in view of the establishment of a new legal electoral process. The post-election audits and evaluation of the ECK provided interim EMB staff with an opportunity to remedy the mistakes that were made during 2007 elections [9] and allowed for to the correction of defects as well feeding the reform process. Likewise, after the publication of the Harmonised Draft Constitution 2009, the CoE held a series of close consultations with the IIEC and the IIBRC, so that these bodies could inform the Draft Constitution where it concerned matters within their mandates. Generally a combination of several methods was used by the IIEC to make the first assessment of Kenya’s preparedness to hold elections. In addition to the internal audit and besides reviewing literature on Kenya, the IIEC team also discussed the electoral expectations with various stakeholders. A national conference on setting Electoral Reform Agenda for Kenya was held in July/August 2009 with both local and international experts. At the end of 2009, the IIEC conducted provincial visits that were meant to sensitise the public on the Commission’s mandate. This was also an opportunity for the IIEC to collect additional opinions from the public about the electoral reforms. The Commission visited all the seven provinces and Nairobi. Finally, the IIEC officials conducted in-depth interviews with key informants from a number of institutions critical to the electoral process and the implementation of governance reforms [10].
The Interim Commission led the constitutional referendum of 2010, carried out a revision of electoral lists and supervised 11 by-elections [11] during which it tested new technologies, particularly in performance management. The overhaul of the legal framework to which the IIEC contributed, has led to a consolidated body of four main texts: the Independent Electoral and Boundaries Commission Bill, 2011, the Elections Act, 2011, the Political Parties Act, 2011 and the Campaign Financing Bill, 2011.
IEBC and electoral reform (2011-2013)
According to the legal framework (Constitution, Election Act and IEBC Act), the IEBC has no formal mandate to engage in electoral reform. The reform is initiated by other actors such as the Parliament, the State Law Office, related Government Ministries and Agencies, etc. Interlocutors at the IEBC have confirmed that the Commission does not have enough financial and logistical resources to effectively engage in this area.
However, the fact that the IIEC and IIBRC played an active and an important role in the electoral reform from 2008 to 2011 makes the IEBC a key player in any future reform today. In practice, the Commission advises the National Authorities on legal (electoral) reforms and a specific Directorate within the Commission is partly responsible for electoral reform issues. The IEBC undertakes general legal research through the Directorate of Research and Development. This Directorate coordinates, amongst others, research on the electoral process, electoral reforms, technology integration and operational support for the Commission.
2011-2013: IEBC at the crossing of the electoral reform process
As stated above the IEBC has grown as a central player in the electoral reform process since 2011, fostering synergistic collaboration with stakeholders. In fact, the 2013 elections were held under a new electoral system and, in order to attain its objectives, the Commission was required to implement part of the electoral reforms. In this regard, the presence of the Commission in the legal reform process was a strategic imperative, especially “to ensure that the legal reform and the numerous rules and regulations provided for under the New Constitution were established within the prescribed deadlines”. [12] For instance, the Commission has finalised, under the supervision of the National Assembly, the process of consolidating and harmonising the various electoral laws into one comprehensive Elections Act. The IEBC has also developed a strong electoral Code of Conduct and established clear dispute and complaint resolution mechanisms. In addition, the Commission has been involved in establishing the requisite administrative frameworks, regulations, policies and mechanisms for putting into force the legal imperatives. Substantial work has been done between 2011 and 2013, especially in:
To achieve this goal, the IEBC has strengthened its partnerships with electoral stakeholders and partners on a regular basis, institutionalising mechanisms and forums. The main partners and stakeholders include development partners, Government of Kenya line ministries and departments, the media, Civil Society Organisations (CSO), Faith Based Organisations (FBO), Community-Based Organisations (CBO), election observers and support groups, voter’s, parliament, political parties (including the Political Parties Liaison Committee), candidates, professional bodies, trade unions, business communities, among others. Government line Ministries and Departments in particular have played crucial roles in the electoral process hence the need for the IEBC to establish strong and collaborative partnerships with them.
The IEBC has also developed a close collaboration with Parliament, responding to parliamentary questions and where required, submitting proposals on electoral laws. IEBC has already proposed amendments to laws governing the electoral process and drafted electoral bills for presentation to parliament for enactment. Likewise, the IEBC’s Directorate of Legal and Public Affairs provided information on alleged offences to the judicial bodies and the Ministry of Justice, National Cohesion and Constitutional Affairs. Besides, the Attorney also provides legal support and representation to the IEBC.
Legal electoral reform: the last developments since 2013 General Elections
Following the General Elections, IEBC conducted a post-election assessment, identifying the key challenges (logistical problems, unprepared staff, failure of the centralisation of the results at national level, etc.). In May 2014, the IEBC Chairperson, Isaac Hassan suggested a number of recommendations to be incorporated in future elections which, if implemented, “would ensure errors experienced in the 2013 March 4 would not be replicated”. [13] Whilst the IEBC has no formal mandate to engage in legal electoral reform, the Commission submitted reform proposals to the Government and the Parliament. The main reforms proposed in order to boost electoral efficiency are as follows:
Some of the proposals, like the staggering of the different types of elections, will need to be debated in Parliament and voted by referendum since it would require amending sections of the Constitution.
To attain the establishment of the proposed reforms, the IEBC engages in broad consultations with the Government, the National Assembly and political parties. In view of the strong criticism that the commission received from the opposition, especially after the difficulties encountered during the collation of results in March 2013, the IEBC has committed to communicate regularly on these proposals urging the public authorities, particularly the political actors, to face their responsibility for the IEBC's proposals.
The challenges and risks faced by the Commission are both technical and political.
Challenges
The financial independence of the Commission is a strategic issue, guaranteeing its ability to work and its neutrality. Currently, the Commission enjoys semi-autonomy with regards to its funding. The salaries and allowances of Commissioners are directly charged to the Consolidated Fund under the Constitutional Offices Remuneration Act. This quasi-independence is however, not extended to the funding of the Secretariat, sometimes affecting the work of some of the Directorates. Given this context, IEBC does not always have enough resources to effectively engage in certain areas, in particular the electoral reform process. [14] Nevertheless, financial resources are crucial for legal expertise and it is clear that the in-house capacities of the Commission, particularly in the area of drafting, may require supplementation. The Directorates involved in providing legal expertise are characterised by a lack of human resources with adequate legal background. Finally, there is a lack of institutional memory. Due to public mistrust, following the disputed 2007 general elections, the formation of the IIEC and IIBRC commissions required that the institutions be set up afresh. None of the former ECK officers were retained in the new electoral body. The current Commission, the IEBC, is a young organisation that has experienced only one General Elections process.
Another crucial challenge to the work of EMBs in this area is related to political willingness and the commitment to legal reform. Electoral reform is a politically sensitive matter and the speed of accomplishing the work involved will depend on other external actors such as the Parliament, the State Law Office, related Government Ministries and Agencies as well as the political parties. Thus, it was difficult for the commissions, IIEC and then IEBC, to promote its reform agenda electoral reforms due to the existing structure of government. This resulted from the dynamics of a coalition government that existed at the time, the union between the ruling party and the opposition.
Risks
The main risks face by the IEBC today is that the body is perceived as incompetent and biased. While the 2013 elections were conducted in a largely peaceful environment, the implementation of the elections presented certain difficulties leading to legal disputes over the outcome of the presidential results. The elections were marked by delays in the registration of voters, six simultaneous elections in one day, security threats, introduction of major technology and political pressure on the IEBC. [15] Unlike 2007 though, the aggrieved parties sought redress in the Supreme Court. Even if the judgment of the Supreme Court was positive for the IEBC, and the elections were considered “free and fair”, the IEBC lost the confidence of some of the political actors, mainly the first platform of the opposition (Coalition for Reforms and Democracy), and some of the stakeholders. The opposition have called for the departure of the IEBC Chairperson and has threatened to boycott future elections if the IEBC does not affect fundamental reforms. [16] This polemic brings into focus the conduct of IEBC officials and this may weaken the legitimacy and the capacity of the Commission to effectively engage in electoral reform processes in view of the next General Elections. [17]
[1] Mwai Kibaki officially won the presidential elections with 46.4 % against Raila Odinga, leader of the Orange Democratic Movement (ODM), with 44.1 %. ODM refused to accept the results of the presidential elections, as did many people in different regions of the country.
[2] For more details see Kenya Elections Domestic Observation Forum (KEDOF) 2007 Final Report or European Union Electoral Observation Mission (EUEOM) in Kenya 2007 Final Report.
[3] The Kriegler Commission or IREC, set up in March 2008 and comprising eight members, held an inquiry into the facts and incidents of the elections held in December 2007. The Commission then presented its conclusions in a report that was made public in September 2008; The Kriegler Report on the December 2007 Elections, Nairobi, 2008.
[4] Articles 41, 41(A), 41(B) and 41(C) [amended by Act 17 of 1990, s. 2, Act 9 of 1997, s. 6], Constitution of Kenya, 1963 (amended in 2008). In the context of 2008 post crisis, the role of the Commission was, more precisely, to provide input to the establishment of the new electoral legal framework to the coalition government.
[5] For full details see: Constitution of Kenya, 28 August 2010.
[6] Other laws and regulations complete the election’s legal framework: Appellate Jurisdiction Act (Cap. 9), and Court of Appeal Rules, 2010; Civil Procedure Act (Cap. 21), and Civil Procedure Rules, 2010; County Governments Act; Criminal Procedure Code (Cap. 75); Evidence Act (Cap. 80); Judicature Act (Cap. 8); Magistrates’ Courts Act (Cap.10); Penal Code (Cap. 63); Supreme Court Act (No. 7 of 2011) and Supreme Court Rules, 2011; Transitional to Devolved Government Act; Urban Areas and Cities Act (No. 13 of 2011).
[7] For more details about the Electoral Legal Framework in Kenya, see: European Union Election Observation Mission to Kenya, General Elections 2013. Final Report, March 2013, pp. 6 to 10.
[8] The International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and People’s Rights (ACHPR), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities.
[9] Kriegler Commission Report, 2008: “Audits are an effective tool for building public confidence in election outcomes because they can detect human errors and help correct them”.
[10] Interviews with ex IIEC staff members and IEBC Commissioners, in Nairobi on September 2012 and March 2013.
[11] These by-elections that took place from August 2009 to August 2011 are the result of judicial decisions from the disputed 2007 elections. Added to these 11 legislative elections, there have been 49 local elections.
[12] IEBC, The new Strategic Plan 2011-2014, Nairobi, 2011.
[13] “IEBC proposes radical reforms to boost electoral efficiency”, The People, 18 May 2014.
[14] Interview with IEBC staff member, in Nairobi on April 2013.
[15] The Electoral management body and the international community identified some keys points to improve upon: i) IEBC institutional capacity to be strengthened; ii) legal framework to be strengthened; iii) new electoral unit boundaries to be established as per the Constitution; iv) a credible voter register to be established; v) an effective and efficient elections/polling operation plan to be implemented; vi) an dispute resolution and conflict prevention strategy to be implemented; vii) an inclusive national civic and voter education programme to be implemented; viii) effective monitoring and observation mechanisms to be implemented.
[16] “Cord to boycott elections if IEBC reforms fail”, The Sunday Nation, 14 July 2013.
[17] “IEBC chiefs fault petition on their ouster”, The Daily Nation, 8 July 2014.
Mathieu Mérino has been involved in election observation and technical assistance for the past 13 years as electoral and political expert. He has participated in 14 election observation assignments from 2001-2014, especially with the European Union and the SADC. In addition, Mathieu has overseen planning and operational activities within the context of election assistance, from design through to implementation, related to the role of domestic observation by civil society groups in the 2011 general elections in Tunisia and in DRC (2013). Mathieu is a Research Fellow at the Fondation pour la Recherche Stratégique (FRS) in Paris and at the Institut Français de Recherche en Afrique (IFRA) in Nairobi. He has been extensively involved in teaching and researching as a University Fellow (France, Guinea, Nairobi). Most recently, he was the coordinator of the program on post-conflict management in the African Great Lakes for the Delegation for Strategic Affairs (France). Mathieu holds PhD in Political Science at the University of Pau (France). His research has focused mainly on Africa, with special interest on Elections Related-Violence in Eastern and Southern Africa.
