Is Kenya’s Election Debacle a Failure of Technology or Governance? (World Politics Review - October 3)

Jeffrey Smith and Arthur Gwagwa

The Kenyan Supreme Court’s ruling that nullified the results of August’s election was a watershed moment for the African continent. Kenya became the first African country to have its election results invalidated and a fresh election ordered by its highest court. Citing widespread “irregularities” in ballot counting, the unreliability of electronic voting machines and the absence of transparency at the Independent Electoral and Boundaries Commission, or IEBC, which oversaw the vote, the court declared that “[if] candidates do not respect the rule of law; if the average citizen, political parties and even candidates themselves do not perceive them as free and fair, elections can, and have led to instability.”

The technological challenges that seemingly doomed the election from the outset have been a subject of intense debate in recent weeks. But that debate has tended to ignore the lack of good governance and respect for democratic rights that prevail in Kenya—the larger context, in other words, that caused the election to fall well short of democratic standards in the first place. Understanding these issues and deriving the key lessons from Kenya’s latest democratic experiment are essential before the country’s election rerun, tentatively slated for October 26.

From a solely technological standpoint, it would appear that Kenyan officials either ignored correctable mistakes made in past elections, or were unconcerned with their consequences. To the government’s credit, and presumably in order to address past complications, a French-based company was contracted to verify and authenticate the voting process in August. However, the IEBC failed to follow simple instructions, prescribed by Kenyan law, to transparently transmit the election results from polling stations to the vote-tallying center. When the political opposition and civil society groups called the IEBC to account for the discrepancies, it outright refused to open itself up to scrutiny. According to the Supreme Court, the failure to ensure a verifiable transmission of results, and the refusal to be transparent about the process, “negated the will of Kenyan voters” and formed the crux of the court’s decision to annul the election.

This critical malfunction of the IEBC indicative of the larger democratic backsliding evident in Kenya over the past several years, which has infected domestic institutions from the executive on down. Local, regional and international civil society organizations, as well as Kenya’s political opposition, have all raised these same concerns with regularity since President Uhuru Kenyatta’s government took power in 2013.

As the Supreme Court noted, this deep-rooted sense of grievance and marginalization can ultimately lead to social instability. It already has in Kenya, both after August’s vote and, much more violently, after a contentious election nearly a decade ago. The conduct of the IEBC reflects of one of Africa’s biggest and most pressing challenges today: a lack of independent and accountable institutions.

This evident weakness now manifests itself in the technological sphere, which is particularly concerning given that a growing number of African countries, such as Zimbabwe, are now adopting biometric technologies that can lead to violations of basic privacy and electoral rights, further blurring the lines on what constitutes a truly free, fair and credible election.

When basic human rights violations take place alongside the use of supposedly sound and unbiased technology, they can lead poll observers, monitors and even seasoned election experts to draw false conclusions that serve to entrench undemocratic and illiberal practices. In Kenya, many have identified the problem as a lack of proper oversight of election technology. But the technology obscures the larger issue at hand. As both current and historical factors make clear, the situation in Kenya involves a government that is on an unequivocal path to erode the rule of law and the democratic tenets that underpin it.

President Kenyatta’s incendiary verbal attacks on the judiciary and a petition to oust the chief justice point to a problem far deeper than electronic voting machines. It is a lack of respect for the rule of law. This is not a recent phenomenon. Several observers have long warned against an “authoritarian contagion” in East Africa, with Kenya just the latest and most apparent example.

A look at Kenya’s recent past suggests its government’s concerted disregard for basic human rights. A failure to respect the rule of law in 2007 led many Kenyans to believe that that election was neither free nor fair, which stoked violent instability that resulted in over 1,200 deaths. Tens of thousands more Kenyans were displaced in the post-election violence and perhaps millions disenchanted with a warped sense of what “democracy” means for them. When a case in the International Criminal Court against Kenyan officials accused of orchestrating the violence collapsed amid political interference and the intimidation of witnesses, it demonstrated the Kenyan government’s pattern of sacrificing liberal ideals, such as respect for the rule of law, for sheer political survival. These instances, among many others, are why Freedom House cited Kenya as a key example of where democracy “broke down” between 2000 and 2015.

This more appropriate context exposes Kenya as one of the emerging illiberal powers that have sought to actively contest genuine democratic development in Africa. Kenyatta’s brazen assault on civil society, his seeming disregard for civil liberties and political rights, the continued verbal attacks on Supreme Court judges, a lack of cooperation with the ICC and the IEBC’s reluctance to subject itself to scrutiny all show a determination to draw new lines that lower democratic standards.

Despite some of the complexities of election technologies, this was not an overriding problem in Kenya. The technology employed in August, which combined software-independent systems based on paper ballots to protect and verify the audit trail, followed today’s best practices. To strengthen this system moving forward, and certainly before the next election later this month, donors and election monitors—if they are allowed back in the country—should seek to improve the oversight of the IEBC and to ensure that the commission and its staff independently discharges its constitutional mandate.

At a wider political level, the Kenyatta government must begin to show a genuine commitment to respect the rule of law, including the country’s judiciary, given its vital role as an effective and independent arbitrator. The continued lack of respect and downright disdain exhibited by the government poses significant threats to Kenya’s short- and long-term stability, as rightly noted by the country’s Supreme Court. Free and fair elections are a cornerstone for sustainable development. That credible elections are increasingly in short supply is a symptom of larger and more negative political headwinds, and it starts at the top with those in power.

Kenyans both expect and deserve better from their democracy—and from their current elected leaders. The United States and European Union would be well served to use their diplomatic clout and collective leverage, from now until October 26 and beyond, to remind those same leaders of Kenya’s indispensable, if flawed, role as a leading commercial, economic and political linchpin on the continent. A truly free and fair election in Kenya would help democracy’s prospects in the region writ large. But the opposite holds true if another election is perceived as compromised or even stolen by those who are meant to serve Kenyans’ best interests.

Jeffrey Smith is the executive director of Vanguard Africa, a nonprofit group that supports free and fair elections in Africa. Follow him on Twitter at @Smith_JeffreyT

Arthur Gwagwa is a Senior Research Fellow on the Sub Saharan-Africa Cyber Regionalism and Elections project, funded by the Open Technology Fund.

Remarks by our Executive Director at "The Future of Angola" event (August 31, 2017)

Remarks by Jeffrey Smith, Executive Director of Vanguard Africa

 The Future of Democracy and Human Rights in Angola: Looking Beyond the 2017 Election (August 31, 2017)

Africa has witnessed a spectacular growth in competitive elections since the 1990s. Recall that only three countries held genuine multi-party elections during the whole of the 1980s. Today they are the norm. Importantly, elections are a key indicator of the strength of democracy, which, one could argue has been reflected in Southern Africa.

First, the relative good news for the region:

In all of sub-Saharan Africa, there are currently 9 countries that register as ‘free’ according to the methodology used by Freedom House. Of those 9 countries, 4 of them are located in southern Africa: Botswana, Namibia, Mauritius and South Africa. Similarly, those same countries also feature in the top ten of the Ibrahim Index of African Governance.

On several important indicators, Southern Africa is ahead of other regions of the world – such as the Middle East and Central Asia – specifically in terms of political participation and other democratic advancements. Even Africa’s remaining tyrants, and what I refer to as “dinosaur presidents,” seek popular legitimacy through multiparty elections.

This sounds pretty great, until you start interrogating the issues in-depth.

Here is the bad news that should be cause for concern.

Staying with the Ibrahim Index for a moment, if you look into the declines taking place on human rights particularly, the most significant are occurring in what have previously been and continue to be the region’s democratic standard bearers (for better or worse): namely South Africa and Botswana. This poses a very significant threat to the region. When regional powerhouses begin to stifle basic freedoms and experience significant setbacks, this inevitably provides cover to other countries to do the same.

To be sure, regional standard-bearers are not living up to their responsibilities, helping to solidify the context in which the quality of civil liberties in the region is actually declining, as is the functioning of government, according the Economist Intelligence Unit.

International partners, and global leaders like the U.S., are also failing by not supporting these regional leaders to promote broader democratic ideals. In addition to a decline in low-level support to democratic actors – as evidenced by the massive spending cuts to U.S. democracy and governance programming – the United States has also been missing the mark at a higher diplomatic level, and I think Angola’s a good example here.

To date, Angola remains one of only three strategic African partners to the U.S., along with Nigeria and South Africa. In line with previous administrations, President Trump is poised to maintain the status quo, which includes strong ties with leaders in Luanda, despite its evident lack of respect for the basic political and civil rights of its people. In May of this year, Angola’s then defense minister, and now president, met with Secretary of Defense Jim Mattis, during which a new security agreement was signed and the country was praised for its “leadership.” Among other items, the agreement confirmed the continued training of (notoriously abusive) Angolan security service members in the U.S. The current president also touted the need for increased military cooperation, capitalizing on the long-held and entirely counterproductive belief in the U.S. that “stability” somehow trumps respect for basic human rights, civil liberties and democratic freedoms.

A few additional thoughts on what might be causing the regional backsliding and the political volatility that often comes with it.

First: political elites are holding onto power by any means necessary, and doing so in more clever ways that don’t necessarily attract international headlines or condemnation. Generally, a good test for the health of a democracy is whether leaders leave office when the law says their time is up. These days, leaders are increasingly securing longer terms through “constitutional coups,” proposing amendments that allow for additional terms in office. This practice gained particular intensity after 2000, when many postcolonial leaders were nearing the ends of their constitutional mandate. Since then, at least 30 presidents have tried to extend their rule and 17 have of them have succeeded, including in southern Africa: Angola and Namibia being the two primary examples.

In these environments, there is, quite simply, a lack of genuine political contestation. According to a recent Afrobarometer survey, just 40% of Africans (polled in 36 countries) believe that their last elections were ‘free and fair.’ Leaders in these countries have invested significant resources to ensure a favorable outcome by stifling democratic space: rigging the registration process, misusing state resources to dispense patronage, controlling the flow of information (through state media monopolies, for instance) and, if all else fails, directly manipulating the results, frustrating any subsequent legal challenge, or jailing their opponents (ex. Zambia).

It should thus come as no surprise that in southern Africa, no liberation movement turned political party has ever lost an election at the national level. This undefeated streak continued in Angola, and will likely persist for the foreseeable future. To date, the record stands at 35-0. In these environments, the ruling party = state. Where the state and party have become one, the political opposition is typically portrayed by governments in the grammar of security (i.e. ‘enemies of the state’). It also usually transforms into a grammar of violence around election time.

There are dire consequences here; for example, studies have shown a strong correlation between Africa’s entrenched leadership and developmental and security challenges, including conflict or instability, stagnant or declining economies, and democratic backsliding. Overall, extended terms in office have contributed to the slowing down of democratization we saw in the 1990s and early 2000s.

A second reason for democratic backsliding in the region is that we’ve collectively allowed the democratic bar to be lowered to a dangerous and wholly unacceptable level. As a recent report from the Brenthurst Foundation put it: “a crude ethos has developed…that if there was no violence, then basically it was a ‘good’ election.”

Due to a changing global power balance, rigged or outright stolen elections in Africa face fewer international penalties than ever before. The AU, for instance, and the various regional economic communities like SADC, consistently prioritize stability in pronouncing on election processes, favoring the incumbent elite rather than their challengers. The international community, writ large, often appears untroubled by the idea that elections that wouldn’t pass muster in the major powers are somehow ‘acceptable’ in Africa. This is both disrespectful and unsustainable.

In sum: there is a positive relationship between electoral democracy and development. A report by the Institute for Security Studies last year found that democracy steadily contributes to good governance, development and economic growth. This only happens if the key components of electoral democracy – including genuine political contestation – are present.

Another report by the Center for International Private Enterprise (CIPE) notes that: Because democracies are accountable to the public rather than the elite, they are more likely than autocracies to produce public goods, maintain rule of law, and protect individual rights. More often than not, autocrats fail to implement reforms to sustain development because they are not held accountable (and because it’s not in their interests to do so). This is where we are with Angola today and throughout much of the region.

Supporting genuine political contestation, consolidating democratic forces and ensuring truly free and fair elections is therefore of paramount importance. Popular support for democracy, for all its imperfections, remains high in the region. It is the supply side that has been sadly missing. By focusing efforts on addressing this evident discrepancy we can help empower citizens to take local ownership over the democratic process that can ultimately lead to a brighter more prosperous and stable future.

The African Peer Review Mechanism (APRM) is one existing institution that can and should be utilized to this effect. The AU Charter on Democracy, Elections and Governance is another. Adopted in 2007 and entered into force in 2010, only ten African countries have, to date, signed and ratified it. To improve democracy and entrench democratic rights in Angola – and elsewhere in the region – this is the direction we must ultimately head in.

Thank you very much. 

Budget cuts Present Opportunity for US NGOs and the Private Sector (The Hill - May 13)

In light of President Donald Trump's notable shift in foreign policy, US-based NGOs working on African issues can be capitalized on by private donors, while working side-by-side with the Administration, USAID and State Department to create pillars of democratic stability.

To Ensure Its Democratic Transition, Gambia Will Need Justice—and Reconciliation (World Politics Review - May 2)

Gambians hope to collectively overcome a deep-seated national trauma and move forward in a way that satiates the rising call to bring those responsible for past crimes to justice, while also dousing the flames of division that Jammeh had so frequently fanned with impunity. 

Gambia’s Opposition Unites: The Stakes of December’s Election (Foreign Affairs – November 25)

Gambia’s Opposition Unites: The Stakes of December’s Election (Foreign Affairs – November 25)

On December 1, Gambians will vote in their country’s most consequential election since it gained independence from the United Kingdom in 1965. For the first time, a unified political coalition will challenge Yahya Jammeh, Gambia’s longtime dictator, only months after the most vigorous protest movement in the country’s recent history.

The U.S. and Nigeria’s Buhari on the Human Rights Hot Seat (The Hill – August 30)

The many nuances of the situation on the ground in Nigeria – a deteriorating economy, a seeming rise in violence, and a political witch hunt under the guise of anti-corruption – cannot be overstated. In simple terms, aid offered to Nigeria, from any U.S. executive branch agency, should only be provided with a mutual understanding that members of the Nigerian military who stand accused of gross violations of human rights be held accountable.

Increasing Risk of State-Led Mass Killing in The Gambia (Early Warning Project – June 23)

Increasing Risk of State-Led Mass Killing in The Gambia (Early Warning Project – June 23)

Several factors indicate that the risk of state-led mass killing in The Gambia is increasing: a steady deterioration of the Gambian economy due to mismanagement and rampant corruption; the death and disappearances of several prominent opposition leaders; and a recent uptick of inflammatory rhetoric and political violence. 

Gambia’s president is under pressure to step down. Is it time for a change? (Washington Post -- May 17)

 Gambia’s president is under pressure to step down. Is it time for a change? (Washington Post -- May 17)

Today, Jammeh faces a collection of challenges similar to those that ushered in his own regime 22 years ago: an increasingly vocal and inspired political opposition, popular protests demanding change, and armed forces with low morale (including reports that senior officers have refused recent orders). Jammeh also confronts rising international isolation, including the suspension of aid from major donors and the country’s dismissal from several U.S. aid programs, including the African Growth and Opportunity Act and the Millennium Challenge Corporation.

Gambian Protests put Jammeh’s Human Rights Record Into the International Spotlight (OkayAfrica – April 26)

Gambian Protests put Jammeh’s Human Rights Record Into the International Spotlight (OkayAfrica – April 26)

In years past, these abuses committed against the Gambian people, and carried out with absolute impunity, have largely been met with silence. However, that scenario has gradually changed, with Gambia being thrust into the spotlight for several reasons, providing a much-needed complement to ongoing domestic and diaspora-driven advocacy efforts.