Court said nay, observers said yea: Did they jump the gun?

NEWS ANALYSIS

In the aftermath of Kenya’s August 8 elections, international observers were quick to express their satisfaction with the polls. In sharp contrast, the losing side, the National Super Alliance (Nasa), led by its presidential candidate Raila Odinga, was quick to denounce the elections.

The preliminary statements of the African Union, the European Union and the Carter Centre observation missions praised the people of Kenya for pushing the democratic agenda forward with their peaceful and constructive participation. They also commended the Independent Electoral and Boundaries Commission (IEBC) for putting in place a comprehensive and functioning process, notwithstanding challenging circumstances.

It became clear that Odinga’s party would fight the outcome in the courts. The opposition’s rejection of the results did not come as a big surprise — Odinga had already been crying foul in the run-up to the vote.

But, in the days that followed the elections, Nasa and Odinga called for calm among supporters while information was gathered.

They forwarded their petition to the supreme court on August 18. The allegations were serious. In short, they accused the IEBC of selectively manipulating, engineering and/or deliberately distorting the 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.

Last week, the supreme court decided in favour of Nasa and Odinga. For the first time in Africa’s fragile democratic history, the opposition had succeeded in nullifying election results through the courts. The IEBC now has 60 days to rectify its mistakes and organise fresh polls.

What went wrong?

One might wonder how international election observers and the Kenyan supreme court could make such different assessments. As usual, the preliminary statements on August 10 were careful to qualify their findings — after all, the counting had not yet been completed. But despite mentioning the problems with procedures and systems, the observer missions nevertheless suggested that “the IEBC had demonstrated its commitment to transparency in the performance process”.

Even though Nasa and Odinga refused to accept the results from day one, the general perception was that the international community had confidence in the process. In an interview with CNN on August 11, John Kerry (for the Carter Centre) said that “the process is still under way, but we believe that the elections commission in Kenya has put together a process that will allow each and every vote’s integrity to be proven”. He noted, however, that there were “little aberrations here and there”.

But Nasa told a completely different story. Its evidence eventually paved the way for the annulment.

The question remains, however, how 5 000 international election observers were not capable of uncovering any of the critical evidence that led to the ruling.

Notably, they did raise some concerns about the results process — did they perhaps not understand how it could affect the election outcome? And, closely linked to this, was it appropriate for the international observation community to go out so early with their initial — and, in hindsight, incomplete — findings?

Effect on election observers

Last week’s supreme court decision has delivered a major blow to international electoral observer missions, whose credibility and validity are being questioned. It will be interesting to follow how the #SupremeCourtDecides outcome will shape the modus operandi of observers in the future.

In this regard, it is worth focusing on two key issues. First, we must discuss how current methods of monitoring polls can be improved.

The second question is about when and how international observer groups should make their pronouncements. Given the complexity of the electoral process, is there any point in publishing a statement two days after election day, as is now common practice?

Kenya moves on

Kenya is now in the process of organising a second vote. The country will surely give international election observer groups a second chance to put their boots on the ground and present their findings on the credibility and legitimacy of the fresh polls. This time, however, observer missions should think twice before issuing their statements.

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