History
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)
-
IREC recommends that the ECK integrate the various
descriptions of the entire counting and tallying procedure into one document –
and one document only – which will then be the principal description and must
be adhered to. The need for such descriptive regulations does not depend on
possible changes in the counting and tallying system.
-
IREC recommends that without delay ECK start having
developed an integrated and secure tallying and data transmission system, which
will allow computerised data entry and tallying at constituencies, secure
simultaneous transmission (of individual polling station level data too) to the
national tallying centre, and the integration of this results- handling system
in a progressive election result announcement system.
-
IREC recommends that ample time be allowed for
verifying provisional results, so that they are declared final/official only
once there is no risk that errors may still be found or non-frivolous
objections raised.
- IREC recommends that ample time be
allowed for verifying provisional results, so that they are declared
final/official only once there is no risk that errors may still be found or
non-frivolous objections raised.Most countries allow one to two weeks for this – there
must be sufficient time to check the provisional results, which are given
status as final results only when all objections have been considered, all
checks and rechecks conducted and the final verdict issued by the proper
authorities. Given a clear explanation of what a provisional result is, there
is no problem explaining to voters that election results are so important that
they cannot be declared final before they have been properly scrutinised and
checked.
2010 and subsequent by-elections
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:
- traditional vote counting
process at the place of poll,
- completion of forms containing
the results, signed by political party agents
- mobile phones at each polling
station, running a special application for the electronic submission of provisional results
- movement of official results on
paper forms to Constituency Tally Centres
- software at Constituency Tally
Centre to accept data entry of official results from paper forms
- software at National Tally
Centre to accept data entry of official results provided by Constituency
Returning Officers
- reconciliation of official and
provisional results at Constituency Tally Centres and National Tally Centres
- Reporting and output of
provisional and official results for stakeholder dissemination
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”
Electoral System
Under the new 2010 Constitution, Kenyans go
to the polls in General Elections to cast six ballots for the following
elections:
- National Assembly (Parliament)
- County Woman member of National
Assembly
- County Assembly Ward Member
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.
Counting Process
Upon the close of poll, the presiding
officer takes the following preparatory steps (with respect to the count):
- Counts all unused and spoiled ballots and records the amounts in the polling
station diary.
- Based on the number of ballots
issued to the polling station, calculates the number of used ballots and records
these amounts in the diary.
- Packages unused and spoiled
ballots and the marked voter register into tamper-evident envelopes.
Then, one election at a time, in the order
determined in the regulations, the task proceeds with sorting:
- In the presence of party or
candidate agents and observers, the seal numbers are noted and the ballot box
opened.
- Ballots are sorted, each ballot
will be determined to be valid, rejected (meaning invalid) or disputed.
- A disputed ballot is treated as
valid for the purpose of declaration of results at the polling station – that
is, the vote will be added to the votes received by a candidate.
- A candidate or his or her agent
may object to the rejection of a ballot. In this event, the presiding officer
will stamp the rejected ballot as “rejection objected to”.
- Ballots marked “rejection
objected to” and disputed ballots may be subject to review by a returning
officer at the Constituency or County Tally Centre*.
* 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:
- Votes obtained for each
candidate
The results forms will then be distributed
as follows:
- The original will be sent to
the Returning Officer (at the appropriate Tally Centre)
- A copy will be posted at the
Polling Station
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.
Provisional Results Transmission
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.
- Uses inexpensive GSM cellphones with basic data transmission
(GPRS) and software capabilities (Java)
- Results entered into
application on the handset and then transmitted.
- Multi-level – results
transmitted to constituency tally centres and national tally centre.
- Integrates with digital maps
for visualization and presentation of results.
Challenges in 2010 and by-elections up to
2012
- Each phone is configured for a
given polling station – an enormous logistical challenge that lacks flexibility
- Applications on the handsets
must be customised for each election, further logistical challenges.
- Not every polling station has
mobile data network coverage.
Official Results Transmission
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:
- A form is posted at the Polling
Station for public viewing. This is a basic transparency mechanism.
- A copy is given to any
political or candidate agent who is at the polling station. This is a vital
accountability mechanism.
- To the Returning Officer at the
Constituency Tally Centre. Accompanied by the Presiding Officer, and sealed in
a tamper-evident envelope, the official Polling Station results form is
physically moved to the Constituency Tally Centre where it is handed over to
the Returning Officer.
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.
Results Dissemination
- Paper forms posted at “the
public entrance” to the Polling Station for public consumption.
- Results at PS shared with party
and candidate agents and with observers.
- Provisional Results made public
without delay by IEBC for media, internet.
- As results are validated,
official results (declaration of winners) broadcast and available on WWW etc.
Electoral Disputes (related to results)
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.
2013 Elections in Kenya
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:
- President (one)
- National Assembly (Parliament,
290)
- Senate (one per county, 47 in
total)
- (County) Governor (47)
- (County) Women Representative
(to National Assembly, one per county, 47)
- County Assembly Ward
Representative (1,450 wards)
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.
