From good to bad, and the implications of Kenya on international observation

In the aftermath of Kenya’s August 8th elections, international observers were fast in expressing their satisfaction with the implementation of the polls. The preliminary statements of the African Union, European Union and Carter Center observation missions – under the leadership of Thabo Mbeki, Marietje Schaake and John Kerry/Aminata Touré, respectively – praised the people of Kenya for pushing the democratic agenda forward through their peaceful and constructive participation. The statements also commended the Independent Electoral and Boundaries Commission (IEBCs), responsible for managing the elections, for its work to put in place a comprehensive and functioning process notwithstanding challenging circumstances.

In sharp contrast, the losing side in the presidential elections, the National Super Alliance (NASA) led by its presidential candidate Raila Odinga, was quick to denounce the elections. It became clear that they would fight the outcome in the courts. The opposition’s rejection of the results did not come as a big surprise. After all, Odinga went out to the press already before Election Day to explain that Kenyatta was simply unable to win without rigging. The statement made the worlds hold its breath: would the election, and the ethnic currents that permeate Kenyan politics yet again lead to violence and death – as in 2007 when more than 1 000 people died on the battlefields after the election?

However, in the days that followed the elections, NASA and Odinga called for calm among their supporters whilst at the same time gathering information and eventually forwarding their petition to the Supreme Court on August 18th. The allegations were serious. In short, they accused the IEBCfor selectively manipulating, engineering and/or deliberately distorting the voting result. At the core of the problem, they suggested, was the result transmission system. Odinga went as far as saying that Kenya now had a computer-generated presidency. And most important: NASA and Odinga claimed to have evidence.

And yesterday, the Supreme Court’s decided in favor of NASA and Odinga. For the first time in Africa’s fragile democratic history, the opposition succeeded in nullifying election results through the courts. The IEBC now has 60 days to rectify its mistakes and organize fresh polls.

What went wrong?

One might wonder how the international election observation community and the Kenyan Supreme Court could make such different assessments. As usual, the preliminary statements published on August 10th were careful to qualify their findings – after all, the counting was not yet completed. But whilst mentioning the problems to the procedures and systems for results transmission, the observer missions nevertheless suggested that “the IEBC had demonstrated its commitment to transparency in the performance process.”

While NASA and Odinga refused to accept the results already from day one, the general perception was that the international community was largely confident in the process as a whole. In an interview with CNN on August 11th, John Kerry (Carter Center) said that that “the process is still underway, but we believe that the election’s commission in Kenya has put together a process that will allow each and every vote’s integrity to be proven” noting however that there were “little aberrations here and there.”

At the same time, NASA told a completely different story and the evidence put forward en to the Supreme Court eventually paved the way for yesterday’s outcome. In a press release issued just hours after the verdict, the IEBC noticed the court decision and urged the prosecutor’s office to “urgently and expeditiously investigate and prosecute any of our staff that may have been involved in violation of the Elections Offences Act.”

The question remains, however, how 5 000 international election observers were not capable of snapping up any of the critical evidence that led to the ruling. Notably, they did raise their concerns around the results process – so was it just so that they did not understand how important it was in affecting the outcomes of the elections? And closely linked to this, was it appropriate for the international observation community to go out, so early on, with their initial – and in hindsight incomplete – findings on the polls?

Consequences for international election observation

Yesterday’s Supreme Court decision has served a major blow to international electoral observation. On Twitter, the credibility and validity of the election observation industry as a whole are being questioned.

It is important not to get carried away and throw the baby with the bathing water all at once. That said, it will be interesting to follow how the #SupremeCourtDecides will shape the modus operandi of the international election observation industry in the future.

In this regard, it is worth focusing on two key issues. First, we must discuss whether the current methods are sufficient (well, that chapter was actually closed off with the Supreme Court decision) and how they can be improved. The increasing use of technology in the implementation of elections has given the observer groups a headache for several years but the problem seems to persist. Can it be solved?

The second question is about when and how international observers groups should make their statements. Given the complexity of the electoral process – of which perhaps the most important part is the counting and the announcement of the results – is there any point to publishing a statement two days after Election Day as is now the common practice? May it, under some circumstances, make sense to hold back and continue analyzing the situation notwithstanding the eagerness of the media and the international community to hear the observers’ verdict?

Kenya moves on

In Kenya, an intense two-months period is waiting. The country has proven that it is up to the democratic task: results were contested in the courts, judgment was made and the sitting president, Kenyatta, has expressed respect for the court ruling.

The election commission will have steep hill to climb. It must not only put in place a functioning system for results transmission but also regain confidence among political parties and citizens at large.

To prove its capacity to promote democracy, Kenya will surely give international election observation groups a second chance to put boots on the ground and present their findings on the credibility and legitimacy of the fresh polls. And observer missions might think twice before making their statements.